With case briefs filed on Monday and the process expected to continue at least three more weeks, Ray McKay admits his goal of raising $1.7 million to mount a campaign to win the Senate seat held by Jack Reed has become increasingly more difficult, but not impossible.
Both the city of Warwick and McKay’s lawyer, Matthew Fabisch, have filed briefs regarding city ordinances that prevent McKay from running for U.S. Senate because of his status as a “classified” employee.
McKay, who is head of the RI Republican Assembly, works as a network and telecommunication administrator for the city, a position considered to be classified under Chapter 48 of the city’s Code of Ordinances. According to Ordinance 48-107, classified employees cannot seek the nomination for any elected office. McKay was informed on March 14 that if he chose to declare candidacy or take action seen as evidence of a declaration, the city would take that as “abandonment of his employment and treat it as his resignation,” as stated in the city’s brief to the Court, filed by city solicitors Peter Ruggiero and David Petraca Jr.
McKay filed a complaint on March 17 in Kent County Superior Court, seeking an injunction to maintain his employment while running for U.S. Senate and a temporary restraining order to prevent the city from enforcing the ordinance. On March 25, the motion for a restraining order was argued before the court and was denied.
Now both briefs have been filed with U.S. District Court with both sides seeking a summary judgment, meaning there is no dispute over the facts of the case and both sides are seeking judge’s ruling on the matter. McKay is also seeking a permanent injunction that would prevent the city from enforcing the ordinance, allowing him to start campaigning without losing his job.
McKay’s attorney, Matthew Fabisch, said the next step would be to file objections to the opposing side’s brief. Those are due on May 5. A week after that, there is another opportunity to file a reply to any points brought up in those objections.
With the case set to last at least another three weeks, Fabisch doesn’t see it going much further. Up to this point, he says the city has been very receptive and doesn’t see either side making moves to drag the case out. But the matter needs to be settled soon if McKay is to start his campaign.
“He needs to have this answer sooner rather than later,” said Fabisch.
He went on to say while his client is “justifiably frustrated,” the plan is still to make a run for Reed’s seat.
“He is absolutely looking to still make a run,” said Fabisch. “There are great issues he would like to bring to the forefront through a campaign.”
During a phone interview yesterday, McKay admitted his goal to start fundraising by the first week in May has become difficult. “That timeline has become more tenuous,” said McKay.
In fact, McKay’s campaign has been pushed back nearly five months; he had planned an official campaign announcement event for Dec. 4 of last year when word of this ordinance came up.
“We’ve been sidelined with this ordinance since then,” he said. “We are way far behind from where we wanted to be.”
But McKay still has hope. While media coverage of his case has not helped to get any of his campaign points across, it has helped with name recognition. While many may be hesitant to donate to a campaign that begins so late, he hopes the media coverage shows that he is not a “Johnny-come-lately.”
“There is enough evidence out there to show I have been planning this going back,” said McKay. “It’s still doable; it’s just going to be harder.”
He said he would have to readjust his game plan and look over his budget if the timeline is delayed further or he is unable to raise the $1.7 million he planned on.
Fabisch says he feels confident about the case, which features a number of arguments; his brief is 33 pages compared to the city’s seven-page one. But overall, Fabisch is hoping to highlight two arguments.
The first is that McKay is not running for elective office in Warwick, but a statewide. In his brief, Fabisch refers to Rhode Island General Laws 17-1-5.1(a), which allows a municipal employee to hold a state elective office or municipal elective office, provided it is not in the municipality in which they are employed.
“The legislature would not have put that in there unless the intent was to make sure municipal employees could run for elected office [just not in the municipality in which they work],” said Fabisch.
The other argument is that running for elected office is a fundamental right; although the city cited case law that shows the Rhode Island Supreme Court has ruled otherwise in the past, overall Fabisch says that is not the case.
“The Rhode Island Supreme Court has been much more receptive to the idea of running for elective office as a fundamental right,” he said. “Mr. McKay works for the city. He wants to be an elected official.”
Fabisch also believes the city needs to have “reasonable justification” as to why this statute is in place, and why it affects his client, who works in the IT Department. He says the city needs to justify their concerns.
McKay said he fully agrees that if there is a conflict of interest that the city employee should not be allowed to run, but that doesn’t exist in his case. He is running for U.S. Senate, not a Warwick or state-level position.
“I would be leaving and moving on. I won’t be coming to Warwick every day for work,” said McKay.
He felt that this ordinance limits the pool of individuals who can run for elected offices, stealing from democracy.
“This helps others run,” said McKay, adding that it should be every American’s desire and right to serve in public office.
According to the city, McKay’s claims that the ordinances violate both the First Amendment’s Freedom of Speech and the Fourteenth Amendment’s Equal Protection are not true. The brief includes a number of examples of case law that show similar ordinances have been held by courts in the past, including the U.S. Supreme Court with U.S. Civil Service Commission v. National Association of Letter Carriers and Broadrick v. Oklahoma, both in 1973.
According to the brief, “a government may, consistent with the First Amendment, place restrictions on the partisan political activities of its employees, including restrictions on the rights of public employees to run for offices.” They say the case law is “clear, consistent and conclusive.”
The brief also explains that the ordinances do not target a specific political party or group, but are in place because the city has an interest in making sure “classified” employees can perform their job without the distraction that comes with mounting a political campaign.
There is also evidence within the brief that the U.S. Supreme Court and Rhode Island Supreme Court have ruled running for office is not a “fundamental right,” and therefore does not require equal protection.
Ruggiero plans to file a reply to McKay’s brief within the next two weeks for the May 5 deadline as well.