The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs commenced this action pursuant to 42 U.S.C. § 1983, 1985
(3), and 1988, and N.Y. Const. art. 1, §§ 6 and 11. When this suit was
filed in 1987, plaintiffs were two New York State employees and the
corporation for which they are principals.*fn1 The defendants were ten
officials of the New York State Department of Social Services.*fn2
Plaintiffs alleged that the defendants violated their First Amendment
right to free speech, their Fourteenth Amendment rights to equal
protection and due process, and their rights to equal protection and due
process as guaranteed by the New York State Constitution. Defendants have
denied the allegations.
On March 10, 1989, this court issued an order dismissing plaintiff's
claims insofar as they were brought:
(1) under 42 U.S.C. § 1985 (3);
(2) under the due process clause of the Fourteenth
(3) under the First Amendment, against the defendants
in their individual capacities.
Thus, remaining before the court are the following claims:
(1) First Amendment, against defendants in their
official capacities only;
(2) equal protection (Fourteenth Amendment), against
defendants in their individual and official
(3) pendent state constitutional claims, against
defendants in their individual and official
Defendants now move for summary judgment on the remaining claims.
Plaintiffs cross-move for summary judgment on their First Amendment
claim. For the reasons stated herein, defendants' motion for summary
judgment is granted in its entirety. Plaintiffs' motion for partial
summary judgment is therefore denied.
A. Parties and Background
In 1986, plaintiffs Terry Parks and Michael McMahon were employed by
the New York State Department of Social Services ("DSS"), in the Division
of Information Technology Management. Parks was a data base
programmer/analyst in the department; McMahon was a project assistant.
The defendants were Parks's and McMahon's superiors at DSS.*fn3
DSS operates the New York State Child Support Management System
("CSMS"). CSMS is an elaborate, computerized "management information
system" which is designed to, inter alia, assist state and local social
service agencies in obtaining federal reimbursement for payments they
make for child support. The system is highly regarded in the field of
child support management; as of 1986, eleven states had either expressed
an interest in, or were otherwise considering, adopting versions of the
New York CSMS. Pl.Mem. at 3-4.
As a project assistant, McMahon supervised the transmissions of daily
checks and reports into the CSMS, and monitored the interaction of the
CSMS with other units within DSS. Parks asserts that although he was
responsible for maintaining several data bases, including the data base
used for the CSMS, he had no direct involvement in the maintenance or
operation of the CSMS itself during his tenure with DSS.*fn4 Regardless
of the exact nature of their duties, one can safely conclude that both
McMahon and Parks understand the complexities of implementing and
operating the CSMS.
In June, 1986, Parks and McMahon formed plaintiff Sector Enterprises,
Inc. ("Sector"). Parks is president of Sector, McMahon is
vice-president. Parks and McMahon have been and continue to be the only
officers of Sector.*fn5 They formed Sector for the primary purpose of
selling their technical expertise with the New York CSMS to other states
and governmental agencies which are considering implementing the system.
As described in the complaint,
Sector Enterprises seeks to assist states and
governmental agencies other than New York in
installing the CSMS and adapting it to the other
states [sic.] computer system, inputing the data
necessary for running the system, training the data
processing staff and the user community, and assisting
the state or governmental agency in obtaining
reimbursement from the Federal Government for the
statutorily provided reimbursement from the Federal
When they assumed their new positions with Sector, Parks and McMahon
knew of New York's laws and regulations governing outside employment by
state employees. See PI.Mem. at 6. Specifically, New York Public Officers
Law §§ 73 (repealed 1989) and 74 regulated commercial and other
outside activities of state employees; these sections severely limited,
if not prohibited, state employees' ability to engage in outside
employment which has the potential to conflict with their state
employment. See generally N.Y.Pub.Off.L. §§ 73 (repealed 1989), 74
(McKinney 1988). In addition, in 1985 defendant Perales —
then-Commissioner of DSS — promulgated separate regulations
concerning outside employment by DSS employees in particular. Pursuant to
the commissioner's regulations, all DSS employees in "Grade 18" or
above, including plaintiffs herein, were required to obtain written
approval from their superiors as a prerequisite to performing outside
employment.*fn6 See Complaint exh. "A" (Perales memorandum) and "B"
("Manager's Guide"), describing new DSS regulations. The superiors from
whom Parks and McMahon needed to obtain approval included some of the
defendants in this action.
B. Controversy giving rise to this litigation
In accordance with the DSS regulation, in June, 1986 Parks and McMahon
took steps to secure approval for their participation in outside
employment on behalf of Sector. They submitted their request for approval
in anticipation of their attendance on behalf of Sector at a conference
sponsored by the American Public Welfare Association ("APWA
conference"). Parks's and McMahon's attendance at the conference,
scheduled to take place in September, ...