RICHARD K. MATTERS, JR., Plaintiff,
WILLIAM J. ESTES, JOHN F. BARR, NEW YORK STATE THRUWAY AUTHORITY, Defendants.
DECISION and ORDER
THOMAS J. McAVOY, Senior District Judge.
Plaintiff Richard K. Matters commenced the instant action against Defendants William Estes, John Barr, and the New York State Thruway Authority ("NYSTA") pursuant to 42 U.S.C. § 1983, asserting that Defendants' decision not to grant Plaintiff permission to run for political office violates his rights as protected by the First and Fourteenth Amendments to the United States Constitution. Plaintiff also asserts similar claims under the New York State Constitution.
Plaintiff moved by order to show cause seeking a preliminary injunction and a temporary restraining order. Defendants have timely opposed the motion for injunctive relief.
The instant matter involves Plaintiffs' requests for approval from the NYSTA to run for political office. The applicable procedure for such approvals is as follows. As person seeking to conduct an outside activity must submit a completed Request for Approval of Outside Activity to his or her supervisor for initial approval to initiate the review process. Under applicable policies, an outside activity may not present a conflict with the policies or interests of the NYSTA or the job duties of a NYSTA employee. If the request is approved by the applicant's supervisor, the request is then forwarded to the appropriate Department Head for review and approval. If the Department Head grants approval, the matter is forwarded to the Bureau of Personnel, which conducts an investigation into the applicant's job functions. Without making a determination, the Bureau of Personnel forwards the application along with the results of its investigation to the Legal Department to determine whether the proposed outside activity conflicts with any relevant laws, regulations, policies, or ethical obligations. The Legal Department forwards the matter to Jonathan Gunther, Esq., the NYSTA's Ethics Counsel. Gunther obtains any additional information that is needed to review the request and conducts a review. This review includes determining whether the applicant has received prior approvals and whether the applicant has been the subject of any investigations or disciplinary matters related to the requested outside activity. Upon conclusion of his review, Gunther prepares a memorandum that includes his review and analysis, as well as any proposed restrictions and any notable outstanding issues that may require resolution or further consideration. This memorandum is shared with Defendant William Estes, the NYSTA's General Counsel/Chief Ethics Officer, for his approval. If the memorandum is approved, it is provided to the Outside Activities Committee for its consideration.
Plaintiff is employed as a Real Estate Officer by Defendant NYSTA. In July 2002, Plaintiff submitted to NYSTA a Request for Approval of Outside Activities so he could run for the position of Councilman (Town Board Member) in the Town of East Greenbush. This request was approved, although Plaintiff did not win the election. In June 2003, Plaintiff submitted another Request for Approval of Outside Activities to again run for the Councilman position. This request also was approved, but Plaintiff did not win the election. In May 2005, Plaintiff again sought approval to run for the Councilman position. The request was approved and Plaintiff again lost the election. A similar approval was granted in April 2007. Plaintiff was elected to a two year term. In seeking these approvals, Plaintiff certified that he read and understood the conditions of the approval of his request to engage in outside activities. These conditions included, among other things, the following restrictions: the outside activity not interfere or conflict with the proper discharge of NYSTA duties; the outside activity not conflict with hours of work normally spent performing NYSTA duties; and the outside activity not involve the use of NYSTA personnel, resources, materials, equipment, facilities, telephones, etc. Plaintiff sought and obtained another approval in May 2009 and was elected for a four year term that ends in December 2013.
In November 2010, Plaintiff was charged by the NYSTA pursuant to New York State Civil Service Law § 75 with violating Executive Instruction #2008-13 and 2009-12 (Outside Activities and Honoraria); and/or Executive Instruction 2008-9 and 2009-8 (Political Activities); and Executive Instruction 2001-3 (Telephone Services Use Policy). The charges covered the period of May 2009 through August 2010 and alleged that Plaintiff used NYSTA telephone resources to conduct non-NYSTA business. Specifically, it was claimed that Plaintiff used NYSTA telephones during the regularly scheduled work day for matters concerning his position as Councilman. In January 2011, Plaintiff entered into a stipulated settlement in resolution of the charges, whereby Plaintiff agreed to pay NYSTA $3, 727.60. Plaintiff was not required to resign his position as Councilman.
In 2013, Plaintiff submitted two separate Requests for Approval of Outside Activity. In January 2013, Plaintiff sought approval to run as a legislator in Rensselaer County. This request was approved by Plaintiff's direct supervisor, Mr. Kirby, who, pursuant to applicable procedure, sent the request to Mr. Bryan. My. Bryan approved the request and forwarded it to the Bureau of Personnel. Meanwhile, in February 2013, Plaintiff again sought approval to run for the Councilman position. This request was also approved by Kirby and Bryan and then forwarded to the Bureau of Personnel. The matters ultimately ended up with Gunther. Gunther conducted his review and analysis and prepared a memorandum which he presented to Estes. Estes advised Gunther that he believed Plaintiff to have had been involved with an ethics investigation. Gunther investigated further and learned from the Department of Audit and Management that disciplinary action had been taken against Plaintiff in relation to the use of NYSTA resources (time and telephones) to engage in his outside activity as a Councilman. Specifically, it was learned that Plaintiff had made at least 454 phone calls totaling 27 hours and 15 minutes on non-NYSTA business in 2008; at least 573 phone calls totaling 32 hours and 6 minutes on non-NYSTA business in 2009; and at least 467 phone calls totaling 37 hours and 56 minutes on non-NYSTA business during the first eight months of 2010. It also was learned that, as previously described, Plaintiff was charged with: (a) using NYSTA telephone resources to conduct non-NYSTA business related to his position as Councilman on 175 specific dates from May 2009 through August 2010; (b) conducting business related to his Councilman position during regular NYSTA work hours; and (c) using NYSTA telephone resources for non-authority business between May 15, 2009 and August 4, 2010.
On April 16, 2013, Gunther submitted to the Committee on Outside Activity (which consisted of John Bryan, Chief Operating and Financial Officer; Defendant John Barr, Director of Administrative Services; and Defendant Bill Estes, General Counsel) his memorandum on Plaintiff's request. The memorandum is factual in nature and does not make a recommendation. The memorandum contained a place for each of the three members of the Committee on Outside Activity to indicate their vote. On April 16, 2013, the Committee met and unanimously voted to deny the request. The results were forwarded to Plaintiff.
Plaintiff then commenced the instant action claiming that the denial of the 2013 requests violated his rights as protected by the First and Fourteenth Amendments to the United States Constitution and similar provisions of the New York State Constitution. Presently before the Court is Plaintiff's motion for a preliminary injunction seeking to preclude Defendants from taking any adverse action against him for running from office and requiring Defendants to approve his Outside Activity Requests.
II. STANDARD OF REVIEW
The Court may grant a preliminary injunction if the moving party establishes (a) irreparable harm; and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc. , 696 F.3d 206, 215 (2d Cir 2012).
a. Likelihood of Success on ...