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Janus attorneys challenge NY governor’s order blocking access to public employees’ info

By Lisa Milam, J.D.

On the day the Supreme Court issued its Janus decision striking at the heart of public employee unions, New York Governor Andrew Cuomo issued an executive order to safeguard the contact information of public employees in the state. The Liberty Justice Center has cried foul.

On June 27, 2018, the Supreme Court issued its long-anticipated decision in Janus v. AFSCME, barring unions from imposing agency fees on public employees who are not union members, and overturning High Court precedent that had persisted for four decades: its 1977 decision in Abood v. Detroit Board of Education, which found that levying “agency” fees to cover a union’s costs of collective bargaining, and other activities which advantaged members and nonmembers alike, did not unduly intrude upon the rights of nonmembers.

Quick to react, New York Governor Andrew M. Cuomo signed Executive Order 183, “Protecting the Personal Privacy of Public Sector Workers,” that same day. The intent, according to the governor’s office, was to fend off an expected wave of “harassment and intimidation” by antiunion activists looking to encourage state workers to withdraw from their unions.

Citing reports of individuals and organizations harassing union members or prospective union members, Cuomo said state employees’ personal contact information is being used to “attack, harass, and intimidate” them. In a press statement announcing EO 183, he charged that “certain far right groups are obtaining contact information of public employees through freedom of information policies and using the information to launch full-scale campaigns against union membership by contacting employees, in some cases at their homes, and presenting them with anti-union information to encourage them to leave their union and discourage union membership.”

Consequently, he ordered state agencies not to give out employees’ home addresses, phone or cell phone numbers, or personal email addresses—except to a union that is the employees’ certified bargaining representative, a union seeking to be certified as such, or for purposes of service of process, court orders, or as otherwise required by law. “In New York, we say no way, no how to union busting. New York is a union state, and as long as I am governor of the State of New York, we will do everything in our power to protect union members and ensure the labor movement continues to deliver on the promise of the American Dream,” Cuomo said. The governor also announced he would be advancing legislation to prohibit the disclosure of personal information for all public-sector employees, including state and municipal workers.

Cuomo’s measure appeared to be the first blue-state action looking to shield public employees’ unions on the heels of the Janus decision, which the governor’s office predicted would shrink public-sector unions by hundreds of thousands of members. In fact, it wasn’t Cuomo’s first effort in this vein. In anticipation of Janus, Cuomo on April 12 signed the nation’s first legislation, by way of a budget measure (S. 7509, see Part RRR) to protect public employee unions. That measure, among other provisions, granted unions notice when new state workers are hired into a bargaining unit, provided the union with the new employee’s name, address, and work location, and afforded the union an opportunity to meet with the new employee within 30 days of hire.

But now the law firm that brought the Janus case to the High Courthas filed suit, bringing a legal challenge to the state’s attempts “to keep public employees in the dark about their Janus rights.”

According to the Liberty Justice Center, Cuomo’s EO “aims to limit access to public information so government employees cannot be notified about their constitutional rights under the Court’s ruling.” The nonprofit law firm, along with the National Right to Work Legal Defense Foundation, represented Mark Janus, the plaintiff, in the landmark decision.

In April 2019, an attorney at the Liberty Justice Center submitted a request to the New York Department of Civil Service for basic payroll information for public employees, seeking to provide New York state employees with information regarding their rights following Janus. The state supplied most of the information requested in the public information request, but did not turn over the zip code information corresponding to the home addresses of the state employees. To support its decision to withhold the data, the state agency cited Executive Order 183.

The agency’s move prompted the law firm to file a special proceeding seeking a declaratory judgment that the state agency’s denial of its request was based on a faulty interpretation of the state’s Freedom of Information Law. The petitioners also want a declaration that EO 183 does not bar them from receiving the records, and ordering the agency to provide them. The petition, Suhr v. New York State Department of Public Service, was filed in the Supreme Court of the State of New York, County of Albany, on October 25.

“Every American should be able to freely exercise his constitutional rights. But to exercise those rights freely, he must know what those rights are. The State’s attempts to withhold information from government workers is a blatant campaign to stop them from exercising their First Amendment right not to pay a government union,” said Brian Kelsey, senior attorney at the Liberty Justice Center. “The Governor issued his executive order in an attempt to block groups like the Liberty Justice Center from educating public employees about their constitutional rights. The Supreme Court was clear: Every American has the right to decide for himself which groups to support with his money. Americans cannot be forced to pay a government union just because they work in public service. The governor should not stand in their way.”