Author Archives: Finney Law Firm

In Serafine v. Branaman, et al. the U.S. Fifth Circuit Court of Appeals recently ruled that a Texas law proscribing one’s ability to claim to be a psychologist fails Constitutional muster in the context of a political campaign. The case is part of a national trend in the wake of the the Alvarez, Stolen Valor Act decision, apply strict scrutiny to speech that is arguably both “political” and “commercial.”

Dr. Serafine, an attorney who completed a four-year post doctoral fellowship at Yale and whose dissertation for her Ph.D. in education was published in a psychology journal, Genetic Psychology Monographs, ran for the Texas state senate in 2010. Previously, Serafine had been a professor in the psychology departments at Yale and Vassar, even though her lack of a doctorate in psychology prohibits her from receiving a license to practice as a psychologist. Nonetheless, Dr. Serafine referred to herself as a “psychologist” in her campaign materials and website, as she was known collegially and in her role as a professor of psychology as a psychologist notwithstanding her lack of the formal credentials.

During her 2010 campaign for the Texas State Senate, the Texas State Board of Examiners sent Serafine a letter informing her that her political materials referring to herself as a psychologist violated state law and ordered her to cease using the title “psychologist” on her campaign website. Ultimately, Dr. Serafine did remove the title “psychologist” from her campaign materials but brought suit against the chairman and executive director of the State Board of Examiners claiming that the Texas Psychologists’ Licensing Act violates the First and Fourteenth Amendments.

Read the Court of Appeals decision here.

Read more from on the case from Eugene Volokh here.

In Wagner v. FEC, Wendy Wagner, a law professor who is working under a consulting contract for the Administrative Conference of the United States, sought to overturn a federal law prohibiting federal contractors from making contributions to federal candidates and their parties, so that she could make contributions to “candidates running for federal offices and/or their political parties.” Wagner argued that such a prohibition violates her First Amendment Rights.

The D.C. Circuit Court of Appeals, ruling en banc, applied a heightened scrutiny (the State must demonstrate “a sufficiently important interest and employ a means closely drawn to avoid unnecessary abridgment of associational freedoms”), a standard just below traditional First Amendment analysis (i.e. Strict Scrutiny, requiring a the state show a compelling governmental interest and the means must be narrowly tailored to achieve that interest).

Using the “rigorous standard of review” set forth by the Supreme Court in Buckley v. Valeo, 424 U.S., at 29, the Court of Appeals distinguished the recent Citizens United case in which strict scrutiny was applied, stating that strict scrutiny was applied in Citizens United not because the case involved a ban on contributions, but because the case involved independent expenditures rather than contributions.

The Court found that there are two important governmental interests at stake: (1) protection against quid pro quo corruption and its appearance; and (2) protection against interference with merit-based public administration. The Court pointed to historical examples of bribery and pay to play schemes involving among others, Duke Cunningham of California, and Ohio’s Bob Ney; as well as testimony to the Watergate Committee from government contractors that they felt pressured to contribute – that their contracts were dependent upon the President’s re-election.

In determining that the restriction on political contributions during the time of contracting and performing under the contract, the Court found that the risk of corruption is greatest at such time. ”Unlike the corruption risk when a contribution is made by a member of the general public, in the case of contracting there is a very specific quo for which the contribution may serve as the quid: the grant or retention of the contract… a contribution made while negotiating or performing a contract looks like a quid pro quo, whether or not it truly is.“

Likewise, the risk that politicians would coerce contributions from employees or contractors is greater than coercion of the general public. “Because a contractor’s need for government contracts is generally more focused than a member of the general public’s need for other official acts, his or her susceptibility to coercion is concomitantly greater. And coercing a contractor to contribute, even if limited by a contribution ceiling, is still coercion. ”

Thus, federal employees and contractors must accept, in the D.C. Court of Appeals’ eyes at least, a limit on their First Amendment rights as part of the bargain.

In a recent Ninth District Court of Appeals case, Teodecki v. Litchfield Township, 2015-Ohio-2309 the former fire chief sued the township and trustees for among other things, breach of contract relating to the release of an investigation report regarding the former chief’s activities in her role as fire chief.

Shortly after the report was completed (but before it was released to the public or any charges brought), Chief Teodecki resigned her position as part of a separation agreement with the Township under with the Township would not to pursue charges against her and (possibly) not to disclose the results of the investigation – whether the confidentiality clause was part of the agreement at the time it was executed is a matter of dispute.

After resigning, Mrs. Teodecki wrote a letter to the local newspaper criticizing the Township Trustees. The Trustees, seeking apparently to exact some revenge for the letter to the editor, voted to release the investigation report to the public. Mrs. Teodecki then brought suit claiming that Trustees breached the separation agreement by making the investigation report public.

However, as the Ninth District Court of Appeals ruled, even assuming the non-disclosure clause was part of the agreement, there was no breach because the Trustees could not legally keep the investigation report from the public. The confidentiality clause was against public policy of open public records, and, absent any of the statutory exemptions mandating release of public records; the investigation report could not be withheld from the public.

The Court’s analysis of the investigation report’s status as a public record is thoughtful and deserves note as well.

We conclude that the Report prepared by Sergeant McDermott following his extensive investigation into the Litchfield Township Fire Department and Mrs. Teodecki falls squarely within R.C. 149.43’s definition of a public record. The Report, which was commissioned by the township and kept in the township’s possession, was a document detailing findings concerning the fire department’s alleged noncompliance with state law. The township’s fire department is without question a public office. Thus, by statute, the Report is required to be disclosed to the general public.

This is a particularly enjoyable case it is rare to see public officials seeking to have Ohio’s public records law read in a keeping with the intent of the law. And, because in this case the old maxim proved true: Sunlight is the best disinfectant.