Fangman v. City of Cincinnati, 1:08cv702.
| Decision Date | 23 October 2008 |
| Docket Number | No. 1:08cv702.,1:08cv702. |
| Citation | 634 F.Supp.2d 872 |
| Parties | Keith FANGMAN, et al., Plaintiffs, v. CITY OF CINCINNATI, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Alphonse Adam Gerhardstein, Jennifer Lynn Branch, Gerhardstein & Branch Co. LPA, Cincinnati, OH, for Plaintiffs.
This cause came before the Court upon the Motion of Plaintiffs, Keith Fangman and Paul D. Graves, Jr., for a Temporary Restraining Order and Preliminary Injunction against Defendant, the City of Cincinnati (Doc. 2). Plaintiffs move for a temporary restraining order prohibiting the Defendant from enforcing Article V, Section 4 of the Cincinnati Charter and No. 2.2 of the City of Cincinnati Human Resources Policies and Procedures (hereinafter referred to as the "Policy") against the Plaintiffs. A hearing was held on October 15, 2008. The Plaintiffs seek to donate money to and distribute campaign literature for federal, state and county candidates.
Plaintiffs are city employees who are not elected and do not serve in the office of a council member or otherwise serve in the Legislative Service. Plaintiff, Keith Fangman, seeks to donate funds to the John McCain presidential campaign and Plaintiff, Paul Groves seeks to donate funds to the Barack Obama presidential campaign. Plaintiffs also seek the opportunity to donate funds to other partisan political candidates on the fall 2008 ballot. These include candidates for both federal and state offices. Plaintiffs also seek the opportunity to distribute campaign literature for the candidates they support.
Plaintiffs claim that the distribution of literature described above would be done by them in their capacity as individual, private citizens and would not be pursued while on duty or at the workplace. See, Plaintiffs' Declarations attached to Motion for Temporary Restraining Order (Doc. 2).
In 1924 the citizens of Cincinnati changed their form of city government by amending the City Charter. They then adopted a new charter in 1926 which incorporated and extended the amended provisions adopted in 1924. Prior to this time Cincinnati had earned a reputation for corruption during the years that George B. Cox functioned as a city "boss" coordinating his political enterprise, first, as a member of city council, and, later, through non-governmental positions. Despite numerous scandals, he functioned in this manner until his retirement from politics. Cox would trade favors and information as city services increased and he routinely provided social services for votes and made profits on plans for city infrastructure developments. (See Doc. 7-5). As part of this corrupt enterprise, Cox would trade City employment positions for votes and would expect his hires to contribute fundraising dollars to his political structure. To prevent this abuse from continuing, the 1926 Cincinnati City Charter provided a blanket prohibition for all city employees in the administrative service from donating money for any political party or candidate as follows:
Article V. Section 4. No person in the administrative service shall directly or indirectly give, solicit or receive, or in any manner concerned in giving, soliciting or receiving any assessment, subscription or contribution for any political party of for any candidate.
At some point the City developed its Human Resources Policies and Procedures which also prohibits employees from engaging in political activity. Specifically, the Policy states that, "No City of Cincinnati employee, other than elected officials or those in the Legislative Service, may participate in partisan political activity". (Policy No. 2.2). This partisan activity includes campaign contributions and distribution of campaign literature. (Policy No. 2.2(1)(A)1 and (1)(B)). Policy No. 2.2 was amended on October 7, 2008, in response to the concerns raised by Plaintiffs, to permit city employees to make "voluntary financial contributions to candidates for office in non-Ohio federal elections ..." which include the United States presidential primary and general election. (Policy No. 2.2(1)(A)). The ban on distributing campaign literature was narrowed to "partisan campaign literature" as opposed to the more general "campaign literature" as was previously set forth in the policy. (Policy No. 2.2(1)(B)).
The standard for evaluating a request for a temporary restraining order and/or preliminary injunctive relief under Fed.R.Civ.P. 65 is well established in this Circuit. The elements necessary to obtain such relief are as follows: (1) a strong or substantial likelihood of success on the merits; (2) irreparable harm has been suffered and will continue to suffer unless Defendant's conduct is enjoined; (3) the issuance of the temporary restraining order will not result in substantial harm to others; and (4) that the public interest is advanced by the injunction. Fed.Civ.R. 65, Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir.1997). The foregoing factors are not prerequisites, but rather are factors which the Court should balance. Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir.2004).
There is a line of cases that is helpful to the matter before the Court which the Court will discuss in detail herein. See Cincinnati v. Ohio Council 8, AFSCME, 61 Ohio St.3d 658, 576 N.E.2d 745 (Ohio, 1991) and Cincinnati v. Ohio Council 8, AFSCME, 93 Ohio App.3d 162, 638 N.E.2d 94 (Ohio App.1994)2. These actions arose from a check off provision contained in collective bargaining agreements between the City and certain employee groups. The City of Cincinnati and the union negotiated four successive collective bargaining agreements containing provisions which allowed city employees, who are members of the unions, to voluntarily request that a portion of the paycheck be deducted and paid to their unions' political action committee, PEOPLE, which then made political contributions with said funds. The issue involved whether a provision in a collective bargaining agreement, such as the check off provision, that is permissible under the Public Employees' Collective Bargaining Act, O.R.C. § 4117, prevails over a conflicting provision in the municipal home rule charter.
Initially, the City prevailed at the trial court but the appellate court reversed. The Supreme Court of Ohio then reversed the appellate court with a discussion of collective bargaining issues which are not germane to the issue at hand. However, the Supreme Court went on to discuss the scope and purpose of the Little Hatch Act. . AFSCME, 61 Ohio St.3d at 667, 576 N.E.2d 745. Id. The Court went on to discuss the limitations government can impose on First Amendment protected activity.
The First Amendment protects the right to make financial contributions to political candidates and causes. Buckley v. Valeo (1976), 424 U.S. 1, 14, 96 S.Ct. 612, 632, 46 L.Ed.2d 659. The Little Hatch Act, like the federal Hatch Act and other similar laws, limits the First Amendment right of public employees to engage in partisan politics in order to protect the efficiency and integrity of the public service. U.S. Civ. Serv. Comm. v. Natl. Assn. of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796; Gray v. Toledo (N.D.Ohio 1971), 323 F.Supp. 1281, 1284-85, 28 Ohio Misc. 141, 143-145, 57 O.O.2d 239, 241-242 (citing United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 [1947]). While this is a sufficient government interest to justify an encroachment on First Amendment rights, Letter Carriers, supra; Gray, supra, at 1258, 28 Ohio Misc. at 144-145 323 F.Supp. 1281, 57 O.O.2d at 241-242, not all restrictions on the political activities of government employees are automatically valid. The Constitution requires that the restriction bear a direct relationship to this interest, and be the least restrictive means necessary to accomplish this end. Gray, supra, at 1285, 28 Ohio Misc. at 145, 323 F.Supp. 1281, 57 O.O.2d at 241-242 (citing Fort v. Civ. Serv. Comm., [1964] 61 Cal.2d 331, 38 Cal.Rptr. 625, 392 P.2d 385; Minielly v. State, [1966], 242 Or. 490, 242 Or. 490, 411 P.2d 69).
As noted supra, the objective of the Little Hatch Act is to prevent the emergence of a political patronage system in Cincinnati city government. In furtherance of that objective, it is unquestionable that the city may limit its employees' participation in local partisan politics without violating the Constitution. E.g., Northern Ohio Patrolmen's Benevolent Assn. v. Wayne Cty., Sheriff's Dept. (1986), 27 Ohio App.3d 175, 27 OBR 213, 500 N.E.2d 404; Gray, supra; Ferguson Police Officers Assn. v. Ferguson, (Mo. App.1984), 670 S.W.2d 921.
Where a city or other unit of local government purports to prohibit its employees' participate in non-local partisan politics, the authorities are divided. Some courts have found such restrictions unconstitutionally overbroad, taking the view that participation by local government employees in politics at the state and national level does not threaten the integrity of the local government. See Mancuso v. Taft (C.A.1, 1973), 476 F.2d 187; Hobbs v. Thompson, (C.A.5, 1971), 448 F.2d 456; Kinnear v. San Francisco (1964), 61 Cal.2d 341, 38 Cal.Rptr. 631, 392 P.2d 391; Minielly, supra; Martin v. State Bd. of Elections (1977), 119 R.I. 556, ...
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Callaghan v. City of South Portland, Civil Action CV-11-428
... ... (5th Cir. 1983). Other courts have taken a contrary view ... See Fangman v. City of Cincinnati, 634 F.Supp.2d 872 ... (S.D. Ohio 2008) ... Even in ... ...