In the tug-of-war between competing interests, does a city rule or a state law triumph in deciding who can run for a state elected office?
That was the question put to the Court of Appeals during an hour of argument Tuesday in Albuquerque, and Judges Jonathan Sutin, Michael Bustamante and Miles Hanisee sounded both skeptical and engaged by the issue.
They quizzed Robin Goble, an attorney for the city, and former City Councilor Michael Cadigan, who represents the firefighter who challenged the provision in the City Charter that bars employees from running for and holding state elected office.
So far, Capt. Emily Kane has won both court rulings and her election. She defeated two other candidates seeking the open seat in House District 15 in the 2012 Democratic primary and went on to win the general election.
When the city sought to discipline her for becoming a candidate in violation of a provision in the City Charter and personnel rules, she went to 2nd District Court and won an order keeping the city at bay. She subsequently won a ruling from a different judge finding the city rule at issue overbroad and thus unconstitutional. The city appealed.
Much of the appellate judges’ questioning – and thus discussion by Goble and Cadigan – went to a relatively obscure state law, the Hazardous Duty Officers Employer-Employee Relations Act. The act says a hazardous duty officer such as a firefighter cannot be barred from engaging in political activity while off-duty, “except as otherwise provided by law.”
“This is a national issue of great importance – a city’s power to regulate the actions of its employees,” Goble said. She said such types of rules have been in place in states for many years, modeled in large part on the Hatch Act, the federal law barring political activity by U.S. government employees.
“Your position is that the City Charter (provision) … trumps state law?” Bustamante asked.
“That would be the Cliff Notes version,” Goble said.
Cadigan told the court it should affirm the ruling by District Judge Beatrice Brickhouse in favor of Kane. He argued that the city had failed to show a need to regulate the conduct it prohibited.
Hanisee suggested the wording “except as otherwise provided” was the Legislature’s showing of respect for home-rule municipalities such as Albuquerque to regulate political activity.
Cadigan said the charter cannot violate state law, though a restriction might apply to a high-ranking officer seeking donations from subordinates. Responding to a question from Sutin, he said the city could perhaps bar an officer from wearing an official uniform while at the Legislature.
“I would urge the court not to create an exception so large you can drive a firetruck through it,” he said.
Kane argued in District Court that firefighters in other municipalities have run for office, including in Bernalillo and Estancia. The city, meanwhile, sought to distinguish Kane’s circumstances from those of other firefighter candidates elsewhere.
The city also has appealed, as a separate matter, Cadigan’s application for attorney fees as result of winning at the District Court level. The city contends he is not eligible to recover fees from the city.