Torres v. LaLota et al
Filing
58
MEMORANDUM DECISION AND ORDER dated 3/26/20 granting defendants' 48 and 52 Motion for Summary Judgment. ( Ordered by Judge Brian M. Cogan on 3/26/2020 ) *Forwarded for jgm. (Guzzi, Roseann) (Main Document 58 replaced on 3/26/2020) (Guzzi, Roseann).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------MICHAEL TORRES,
Plaintiff,
- against NICHOLAS LALOTA and SUFFOLK COUNTY
BOARD OF ELECTIONS,
Defendants.
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: MEMORANDUM DECISION
: AND ORDER
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: 15-cv-7097 (BMC)
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COGAN, District Judge.
Plaintiff brings this § 1983 action against his former boss and county employer for
terminating his employment in retaliation for exercising his First Amendment rights. Defendants
move for summary judgment dismissing the claim on the bases that (1) the Suffolk County
Board of Elections is a partisan agency from which any employee can be terminated for political
reasons; and (2) plaintiff’s role within the Board of Elections was subject to the “policymaker
exception” to the First Amendment. Defendant LaLota alternatively argues that he is entitled to
qualified immunity. Because plaintiff’s position was subject to the policymaker exception,
defendants’ motion for summary judgment is granted.
BACKGROUND
I.
The Board
The Suffolk County Board of Elections (the “Board”) is an agency created by Suffolk
County pursuant to New York State Election Law. Its purpose is to oversee all aspects of the
electoral process in Suffolk County, including voter registration, election procedures, tabulation
of election results, campaign practices, and compliance with election law. As described by
plaintiff, the Board’s ultimate responsibility is to “ensure a fair electoral and democratic
process.”
The Board consists of a Republican Administration and a Democratic Administration,
and has a total of 123 employees “divided equally between” the two. 1 Each Administration has a
Commissioner at the top, followed in descending rank by the Deputy Commissioner, Senior
Assistant Commissioner, and Assistant Commissioner. The Hispanic Outreach Coordinator
ranks somewhere below the Commissioner and reports to him directly.
The two Commissioners are chosen by their respective county party chairperson, and
each Commissioner appoints his staff of approximately 60 people with the advice of town and
county party chairs. Beginning in 2014, prospective Board employees have been required to
submit an application form, although Board employees remain civil-service exempt.
In each Administration, the only overtime-exempt employees are the Commissioner,
Deputy Commissioner, Senior Assistant Commissioner, Assistant Commissioner, and Hispanic
Outreach Coordinator. The people in these positions are paid a salary, whereas all other Board
employees receive an hourly wage.
II.
Plaintiff’s Role on the Board
In 2007, the Board’s Republican Commissioner hired plaintiff to be his Senior Assistant
Commissioner. In pursuing this position, plaintiff did not prepare a job application but did
submit a resume. After interviewing with the Commissioner and receiving a recommendation
from the Suffolk County Republican Chairman, plaintiff was offered the job.
As the Republican Senior Assistant Commissioner, plaintiff’s direct supervisor was the
Republican Deputy Commissioner. Plaintiff earned an annual salary of around $105,000 and
1
There is one person employed by the Board to handle IT functions for both Administrations.
2
was required to file a financial disclosure with the Suffolk County Board of Ethics for each year
between 2010 and 2015.
There was no formal job description for the Senior Assistant Commissioner position;
however, some of plaintiff’s duties in that role included distributing voter registration materials
to the public, uploading election results online, monitoring the scanning function on voting
machines, and ensuring that the polling locations received the correct number of voting machines
in working-order. Plaintiff also approved fire, library, school, and village requests for services as
well as approved process server requests and certain FOIL requests.
In addition, plaintiff was the Commissioner’s liaison to the Board’s Processing
Department, which is responsible for receiving mail, processing absentee ballots and voter
registration forms, and entering information from these forms into the Board’s master database.
All data entry by the Republican Processing Department is supervised and double-checked by a
member of the Democratic Administration. And when plaintiff left the Board office on official
business, he was sometimes accompanied by his Democratic counterpart. For example, the
Democratic Senior Assistant Commissioner would go with plaintiff to conduct voting machine
audits.
At times, the Deputy Commissioner tasked plaintiff with executing or overseeing certain
Board projects. In so doing, plaintiff would occasionally have to make sure that other Board
employees did their jobs correctly. And on occasion, the department heads would update
plaintiff with the status of a particular project, which new information plaintiff would then report
to the Deputy Commissioner. Plaintiff frequently interacted with the Deputy Commissioner
throughout the work day about ongoing projects.
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III.
Plaintiff’s Termination
One of the contested Suffolk County elections in 2015 was for a judgeship in the Town of
Brookhaven. The Republican Party nominated Tara Scully for that position and the
Conservative Party originally nominated Democrat Howard Heckman. When Heckman
withdrew his candidacy to pursue another post, Jesus Garcia, the Brookhaven Republican
Chairman and the Board’s Republican Hispanic Outreach Coordinator, approached plaintiff
about securing Scully the available Conservative Party nomination.
Plaintiff is a longtime member of the Suffolk County Conservative Party and, since 2010,
has served as its Secretary. As Secretary, plaintiff is also on the Suffolk County Conservative
Party’s Executive Committee. Additionally, although there isn’t an official voting alliance
between the Suffolk County Conservative and Republican parties, there historically was a
significant de facto connection between the two. The Conservative Party would often endorse
candidates, including judges, put up by the Republican Party, and since 2015, it has done so
85%-90% of the time. Moreover, in any particular election, the Conservative Party would
generally account for 7%-12% of the votes for Republican Party-run candidates.
Despite Garcia’s entreaties, plaintiff supported Democratic candidate Stephen Ukeiley for
the Conservative Party endorsement. Several days later, plaintiff was called to a meeting with
Commissioner LaLota, the County Republican Chairman, and Garcia to discuss plaintiff’s
possible termination. During that meeting, the County Republican Chairman expressed his
displeasure with plaintiff for not endorsing Scully. Plaintiff was terminated soon after.
In response to his firing, plaintiff brought the present suit against Commissioner LaLota
and the Board for violations of his First Amendment rights of “speech, belief, activity and
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association,” as well as for violations of state labor law. Defendants move for summary
judgment.
DISCUSSION
Under Federal Rule of Civil Procedure 56, a court may grant summary judgment when
“the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted). However, “only admissible evidence need be considered by the trial court in
ruling on a motion for summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.
1997).
A dispute as to a material fact is “‘genuine’ . . . if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The opposing party must put forward some “concrete evidence from which a
reasonable juror could return a verdict in his favor” to withstand a motion for summary
judgment. Id. at 256. “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed verdict.” Id. When deciding a
motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. (internal quotation mark omitted).
“To prevail on a First Amendment claim asserted under 42 U.S.C. § 1983, a plaintiff
must prove by a preponderance of the evidence that (1) the expression at issue was
constitutionally protected, (2) the alleged retaliatory action adversely affected his constitutionally
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protected expression, and (3) a causal relationship existed between the constitutionally protected
expression and the retaliatory action.” Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003).
“As a general rule, the dismissal of a public employee for purposes of political patronage
infringes on the employee's First Amendment rights.” 2 Regan v. Boogertman, 984 F.2d 577, 579
(2d Cir. 1993) (citing Elrod v. Burns, 427 U.S. 347, 360 (1976)). Thus, in most cases, “the First
Amendment forbids government officials to discharge or threaten to discharge public employees
solely for not being supporters of the political party in power[.]” Rutan v. Republican Party of
Illinois, 497 U.S. 62, 64 (1990). This is because “conditioning employment on political activity
pressures employees to pledge political allegiance to a party with which they prefer not to
associate, to work for the election of political candidates they do not support, and to contribute
money to be used to further policies with which they do not agree.” Id.
However, political affiliation “may be an acceptable requirement for some types of
government employment.” Branti v. Finkel, 445 U.S.507, 518 (1980). Specifically, “political
affiliation is an appropriate requirement when there is a rational connection between shared
ideology and job performance.” Savage v. Gorski, 850 F.2d 64, 68 (1988). People occupying
these positions – so-called “policymakers” – are simply employees whose jobs call for party
loyalty, which list encompasses “an endless variety of job responsibilities and varying degrees of
discretion and autonomy.” See Alberti v. County of Nassau, 393 F. Supp. 2d 151, 168 (E.D.N.Y.
2005) (quoting Flenner v. Sheahan, 107 F.3d 459, 465 (7th Ci. 1997)). Moreover, “a position
may be appropriately considered political even though it is neither confidential nor policymaking
At first blush this case would appear to sound in free speech, rather than political association, because the impetus
for plaintiff’s termination was his support for a particular candidate and not the fact that he was a member of the
Conservative Party. However, an employee’s outside political activities can inform his propensity for partisan
loyalty (or disloyalty) in the workplace. See, e.g., Regan v. Boogertman, 984 F.2d 577, 578-79, 581-82 (2d Cir.
1993). Thus, what might appear in one context to be political speech can be used by an employer as a basis for
termination under the policymaker exception to the First Amendment.
2
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in character.” Branti, 445 U.S. at 518. An example provided by Justice Stevens in Branti makes
this idea abundantly clear:
[I]f a State's election laws require that precincts be supervised by two election
judges of different parties, a Republican judge could be legitimately discharged
solely for changing his party registration. That conclusion would not depend on
any finding that the job involved participation in policy decisions or access to
confidential information. Rather, it would simply rest on the fact that party
membership was essential to the discharge of the employee's governmental
responsibilities.
Id. Thus, the relevant distinction between a policymaker and a non-policymaker need not turn
on the substance of an employee’s role, but may also manifest in a more structural or definitional
attribute of the job. In this way, the term “policymaker” itself is a misnomer, and can be better
understood as a synecdoche for a position expected to be held by someone exhibiting uniform
party loyalty. See id. (“[T]he ultimate inquiry is not whether the label ‘policymaker’ or
‘confidential’ fits a particular position; rather, the question is whether the hiring authority can
demonstrate that party affiliation is an appropriate requirement.”); Regan, 984 F.2d at 580
(“although the label ‘policymaker’ itself is not necessarily determinative . . . we use it here as a
convenient shorthand for a person occupying a position calling for party loyalty.”).
The main purpose of the policymaker exception is to allow a politically accountable
administration to protect its values by employing people who it can trust to faithfully abide by
them. As the Second Circuit put it in Savage, 850 F.2d at 68, disallowing this exception “would
severely handicap an incoming administrator’s ability to carry out his proposed policies, thereby
undercutting the effects of the electorate’s vote.”
In determining whether an employee’s dismissal is permissible under the policymaker
exception, a court may look to, inter alia,
whether the employee (1) is exempt from civil service protection, (2) has some
technical competence or expertise, (3) controls others, (4) is authorized to speak
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in the name of policymakers, (5) is perceived as a policymaker by the public, (6)
influences government programs, (7) has contact with elected officials, and (8) is
responsive to partisan politics and political leaders.
Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994).
Additional factors courts consider are whether the employees at issue are ones “who act
as advisers, who formulate plans for implementing broad goals, or whose responsibilities are
either not well defined or of broad scope.” Ness v. Marshall, 660 F.2d 517, 520 (3d Cir. 1981)
(citing Elrod, 427 U.S. at 367-68)). Moreover, the Supreme Court has indicated that the ability
to hire someone based on his political affiliation is relevant to whether that person can be fired
because of his political affiliation. See Rutan, 497 U.S. at 74 (“A government's interest in
securing employees who will loyally implement its policies can be adequately served by
choosing or dismissing certain high-level employees on the basis of their political views”
(emphasis added); “[T]he ‘preservation of the democratic process’ is no more furthered by the
patronage promotions, transfers, and rehires at issue here than it is by patronage dismissals.”).
Given the strong partisan character of the Suffolk County Board of Elections as well as
the realities of plaintiff’s role as the Republican Senior Assistant Commissioner, it is clear that
plaintiff’s termination was in accordance with the First Amendment policymaker exception.
At the outset, I note that the facts of Regan, which held that the policymaker exception
applied, bear a striking resemblance to those of this case: Bonita Regan, a member of the
Conservative Party, was appointed by the Republican Receiver of Taxes to be his Deputy Tax
Receiver. Regan served comfortably in that position for seven years until, during an election
year in which the Receiver was not up for reelection, Regan and the Conservative Party endorsed
candidates within the Democratic Party. Following the election, Regan was fired. Although
Regan argued that “her role as the Deputy Tax Collector was merely ministerial . . . [and that she
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had] virtually no discretion,” the Second Circuit held that her position was still subject to the
policymaker exception based on “the power with which [it] is vested by law, and which is
inherent in the office.”
Beyond the similarities this case shares with Regan, upon which alone I would feel
justified in granting defendants’ motion, several other factors compel the same conclusion. To
start, the Board itself is imbued by law with an unmistakably partisan character. Article II,
Section 8 of the New York State Constitution (“Bi-partisan Registration and Election Boards”)
provides that
[a]ll laws creating, regulating or affecting boards or officers charged with the duty
of qualifying voters, or of distributing ballots to voters, or of receiving, recording
or counting votes at elections, shall secure equal representation of the two
political parties which, at the general election next preceding that for which such
boards or officers are to serve, cast the highest and the next highest number of
votes. All such boards and officers shall be appointed or elected in such manner,
and upon the nomination of such representatives of said parties respectively, as
the legislature may direct.
(Emphases added.) This confirms both that New York State boards of elections are structured
according to party affiliation and that at least certain of their employees (all “boards and
officers”) are, by law, political appointments. Furthermore, New York Election Law § 3-300
states that “[e]very board of elections shall appoint, and at its pleasure remove, clerks, voting
machine technicians, custodians and other employees . . . and shall secure in the appointment of
employees of the board of elections equal representation of the major political parties”
(emphasis added). As interpreted by the state courts, this provision “furthered the constitutional
mandate of bipartisan participation in the functions of boards of elections (see, NY Const, art II,
§8) and vested boards of election with complete and exclusive control of their personnel and the
performance of their duties in that highly sensitive governmental area.” See Cty. of Chautauqua
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v. Chautauqua Cty. Emps.’ Unit 6300 of Local 807 of Civ. Serv. Emps.’ Ass’n, Inc., Local 1000,
AFSCME, AFL-CIO, 181 A.D.2d 1052, 1052, 581 N.Y.S.2d 967, 967 (4th Dep’t 1992).
Indeed, various positions within this state’s boards of elections have been held subject to
the policymaker exception. See, e.g., Millus v. D’Angelo, 224 F.3d 137 (2d Cir. 2000) (elections
day operations coordinator); Hering v. Hill, 814 F. Supp. 356 (S.D.N.Y. 1993) (deputy
commissioner); Mirabella v. Bd. of Elections of City of New York, 507 F. Supp. 338 (S.D.N.Y.
1980) (election inspectors). The reason for treating these bodies with such especial political
sensitivity is a consequence of “the very nature of the election process,” whereby fairness is
ensured through the vigilance of interested partisan representatives. See Mirabella, 507 F. Supp.
at 340; see also Hering, 814 F. Supp. at 357 (“The election laws of New York State . . . are based
on the premise that a balance of power on boards of elections between political factions is a more
realistic safeguard against partisan bias than an attempt to keep this phase of the electoral system
free of partisan participation.”). And when the partisan “interest” of one of these representatives
can no longer be trusted, neither can the fairness of the election process.
Therefore, although I won’t go so far as to pronounce the policymaker exception
automatic for all Board positions, see Chabot v. Cty. of Rockland, New York, No. 18-cv-4109,
2019 WL 3338319, at *8 n.6 (S.D.N.Y. July 25, 2019) (rejecting this defense on a motion to
dismiss because the defendant had not, “at this stage, m[et] her burden of proving . . . that the
Clerk III position is a policymaker position”), the strong partisan character of boards of elections
in New York State is a significant consideration. In fact, in certain respects, the Board is a fitting
macrocosm of Justice Stevens’s example in Branti: instead of “two election judges of different
parties” supervising a voting precinct, it is two administrations – Democratic and Republican –
supervising the entire election process.
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Moreover, no matter how menial plaintiff claims his former position to have been, it was
plainly substantively relevant to the political “nature of the election process.” See Mirabella, 507
F. Supp. at 340. Perhaps most significantly, as plaintiff admits in his responsive Local Rule 56.1
Statement, several of plaintiff’s responsibilities required that he accompany, or be accompanied
by, his Democratic counterpart within the Board. For example, “[w]hen Plaintiff audited voting
machines . . . he always did so with a Democratic counterpart.” And a Democrat “supervised
and double-checked” all data entry by the processing department, for which Torres was the
liaison to the Commissioner. This cross-party supervision goes to the heart of New York’s
vision for partisan balance in maintaining the fairness of elections. See Mirabella, 507 F. Supp.
at 340; Hering, 814 F. Supp. at 357.
Finally, the position of Senior Assistant Commissioner reflects, at least, a critical mass of
the indicia of a so-called “policymaker.” See Vezzetti, 22 F.3d at 486. The job itself is the thirdhighest within the Republican Administration and its title appropriately reflects that rank to the
public. Plaintiff was also civil-service exempt, as were all of the Board employees. This fact is
of outsized importance in the Vezzetti analysis – though not presumptively dispositive, as it is in
the Fourth Circuit – because “New York has considered many of the same criteria for non-civil
service status as does a court in determining whether a position is exempt from First Amendment
protection.” See Regan, 984 F.2d at 580. In addition, the Senior Assistant Commissioner was
one of only five overtime-exempt employees on the Board (along with the Commissioner,
Deputy Commissioner, Assistant Commissioner, and Hispanic Outreach Coordinator), which can
be considered a sign that he held a policymaker position. See Dangler v. New York City Off
Track Betting Corp., 193 F.3d 130, 139 (2d Cir. 1999) (explaining that plaintiff’s ability to
receive overtime pay “suggest[s] that [he] in fact held a role below the level of policymaker”).
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There was no formal job description for the Senior Assistant Commissioner, but plaintiff
filled various roles within the Board, spanning voter registration, election results processing,
precinct equipment oversight, FOIL request management, interdepartmental liaison, project
supervisor, and aid to the Deputy Commissioner. This also leans in favor of applying the
policymaker exception. See Ness, 660 F.2d at 520 (“[E]mployees . . . whose responsibilities are
either not well defined or of broad scope are more likely to function as policymakers.”).
Although it isn’t clear to what extent plaintiff was inherently responsible for supervising those
below him, he certainly exerted control over numerous lower-level Board employees when asked
to do so by the Commissioner or Deputy Commissioner. As the Second Circuit stated in Regan,
984 F.2d at 580, “[t]here is no likely circumstance in which a shared ideology is more important
than when an elected official appoints a deputy who may act in his or her stead.”
Plaintiff was hired in 2007 at the behest of the Suffolk County Republican Party
Chairman, and in 2015 he was fired at the urging of the Suffolk County Republican Party
Chairman. In the end, plaintiff held a position on the Board that demanded party loyalty and his
termination was therefore fair game under the policymaker exception. See Savage, 850 F.2d at
68 (“[P]olitical affiliation is an appropriate requirement when there is a rational connection
between shared ideology and job performance.”).
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CONCLUSION
Defendants’ [48, 52] motion for summary judgment is granted. The Clerk is directed to
enter judgment, dismissing the case.
SO ORDERED.
Digitally signed by Brian
M. Cogan
U.S.D.J.
Dated: Brooklyn, New York
March 26, 2020
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