Federal appeals panel rejects fired attorney’s free-association claim

Thursday, May 11, 2000

Dennis Vacco

New York Attorney General Dennis Vacco did not violate the First Amendment
free-association rights of an assistant attorney general whom he dismissed for
not supporting him politically, a federal appeals panel has ruled.

Barbara Butler was appointed assistant attorney general in 1980 by
then-Attorney General Robert Abrams. She was promoted to Litigation Bureau Chief
in 1981. In 1983, she was promoted to Deputy Bureau Chief of the New York State
Department of Law. In this capacity, she supervised about 80 attorneys.

When Dennis Vacco was elected attorney general in 1995, he informed all
assistant attorney generals that they would have to reapply for their positions.
In July 1995, Butler was informed that she would not be rehired.

She then sued the New York State Department of Law, Vacco and First Deputy
Attorney General William Flynn in federal court in July 1996.

She alleged that she was discriminated against on the basis of her sex and
age. She also alleged that she was fired because she was not politically
affiliated with Vacco or anyone in his political party.

In March 1998, U.S. District Judge Charles L. Brieant granted the defendants
summary judgment. Brieant ruled that Butler could not prevail on her First
Amendment freedom-of-association claim because she was a policymaker who could
be fired for political patronage reasons. He also dismissed the sex and age
discrimination claims.

On appeal, a three-judge panel of the 2nd U.S. Circuit Court of Appeals
agreed in Butler v. New York State Department of Law.

The unanimous panel recognized in its May 3 decision that “generally public
employees may not be discharged for exercising their First Amendment rights,
including the right to freedom of association.”

However, the appeals panel noted that the U.S. Supreme Court ruled in 1980 in
Branti v. Finkel that political affiliation is a valid employment
criterion for policymaking employees. In that decision, the high court wrote “if
an employee’s private political beliefs would interfere with the discharge of
his public duties, his First Amendment rights may be required to yield to the
State’s vital interest in maintaining governmental effectiveness and

The panel cited a 1997 2nd Circuit decision for the proposition that the
pivotal question in determining whether an employee is in a policymaking
position is “whether the employee in question is empowered to act and speak on
behalf of a policymaker, especially an elected official.”

The panel noted that an assistant attorney general “routinely acts and speaks
on behalf of an elected official — the attorney general.”

“We are not persuaded by Butler’s argument that she was not a policymaker
because she had to consult her superiors or clients on policy issues,” the panel
wrote. “The conclusion that Butler was a policymaker for First Amendment
purposes is consistent with other cases in which we have held that attorneys
working in public capacities in New York State were not protected against
political patronage dismissals.”

Daniel J. O’Donnell, Butler’s attorney, said, “the courts are eroding away
the protections of public employees.” He said the court’s analysis was “severely

“A decision has not yet been made on whether to appeal, though realistically
the U.S. Supreme Court is not a place you look forward to going to if you are a
plaintiff’s attorney in employment cases,” he said.

Charles Cunningham, the attorney for the defendants, said, “There are a number of other cases decided by the 2nd Circuit which found that government attorneys are policymakers for First Amendment freedom-of- association purposes. This decision is a natural outgrowth of those decisions and does not break any new ground.”