By Dan McKay
The Albuquerque Journal
ALBUQUERQUE, N.M. — Fire Capt. Emily Kane won a temporary restraining order on Thursday to prevent the city of Albuquerque from taking personnel action against her for running for office.
Kane said the decision is a victory for her First Amendment rights.
“I’ve got some campaigning to do,” she said as she left the courtroom.
Kane is one of three Democrats seeking the nomination in House District 15, an open seat. Her opponents in Tuesday’s primary election are Joe D. Craig and Matt David Muñoz.
The City Charter prohibits Albuquerque city employees from holding elected state offices, and city personnel rules based on the charter say employees can’t even be candidates for such an office.
Kane and her attorney, former City Councilor Michael Cadigan, argued Thursday that the prohibition is illegal and in conflict with the firefighters’ union contract. The city initiated disciplinary proceedings against her this week, Cadigan said.
Second Judicial District Judge Alan Malott granted their request for a 10-day order barring the city from taking any action against Kane.
Malott said there’s a “reasonable chance” that Kane will prevail on the merits of the case and that making the city wait at least 10 days before proceeding with discipline won’t cause any harm.
“The election is already under way,” he said.
A more-permanent decision will be made in future hearings, probably before a different judge. Malott heard the case on an emergency basis.
His decision came after about an hour of debate by Cadigan and Rebecca Wardlaw, who represented the city.
Wardlaw said the city had a reasonable interest in keeping its employees from holding elected offices where they’d be subject to pressure from political parties and special interest groups. More than just the City Charter was at play, she said, noting that the federal Hatch Act bars federally funded employees from seeking partisan offices.
Cadigan said the Hatch Act isn’t a factor because Kane’s salary is paid by the city, not federal government.
Kane also informed the city ahead of time that she intended to run, but formal action wasn’t taken against her until the week before the election, he said.
“I think that’s overly aggressive on the part of the city of Albuquerque,” Cadigan told the judge. “This is a matter of great public interest.”
Copyright 2012 Albuquerque Journal