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Employment & Labor Law for Public Safety Agencies
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Political Activity/Patronage Employment
After county solid waste enforcement officer’s job was eliminated, he filed a federal civil rights lawsuit against the employer, claiming unlawful First Amendment retaliation because of his decision to run for county sheriff as an independent. Some members of the county board allegedly pressured him to drop out of the sheriff’s race before acting to eliminate his existing job. A federal appeals court upheld the rejection of the county’s motions for summary judgment, judgment as a matter of law, and a new trial after a jury verdict for the plaintiff. The appeals court ruled that the claims in the lawsuit were not barred based on his response in his unemployment benefits application that he had been “laid off,” and that the plaintiff’s failure to appeal the county board’s decision in state court did not bar his First Amendment civil rights claim. The appeals court also found that the job at issue was not a policymaking position, and that sufficient evidence supported the jury’s verdict. Specifically, there was evidence that at least three of the five board members had a retaliatory motive for the termination. Griggs v. Chickasaw County, #18-60401, 2019 U.S. App. Lexis 21354, 2019 WL 3229151 (5th Cir.).
A sergeant sued the county sheriff and several other county employees, asserting several claims related to treatment he asserted that he suffered as a result of his First Amendment protected political associations and beliefs The sergeant ran in an election as the Republican challenger to the Democratic sheriff. Upholding summary judgment to the sheriff on First Amendment discrimination and retaliation claims, a federal appeals court found that the plaintiff’s claims suffered from a “fatal flaw” because no adverse employment action was shown. His suspension fell outside the applicable two-year limitations period, and the record was devoid of any evidence that a reprimand or transfer in any way changed the terms or conditions of his employment. There was also no merit to the sergeant’s contention that being left off of the promotion list due to the suspension and reprimand was an adverse employment action where the sergeant offered no evidence as to how the promotion list was compiled or the significance of the list. None of the complained of actions, either separately or together, amounted to an adverse employment action. Charleston v. McCarthy, #18-1965, 2019 U.S. App. Lexis 17740, 2019 WL 2454230 (8th Cir.).
A sheriff’s deputy ran against the sheriff in a primary election and had publicly made statements about the department and how he would improve it. The incumbent sheriff won the election and then fired the plaintiff, claiming that his campaign had violated the department’s rules of conduct. The deputy sued, claiming a violation of his First Amendment rights. A federal appeals court, ruling en banc, held that the defendant was entitled to qualified immunity because he did not violate a clearly established statutory or constitutional right. As in Nord v. Walsh. County, #12-3249, 757 F.3d 734 (8th Cir. 2014), the defendant could have reasonably believed that the plaintiff’s speech was at least potentially damaging to and disruptive of the discipline and harmony of and among co-workers in the sheriff’s office, and detrimental to the close working relationships and personal loyalties needed for an effective and trusted operation. Morgan v. Robinson, #17-1002, 2019 U.S. App. Lexis 9325 (8th Cir.).
A federal appeals court ruled that a plaintiff’s claim that a sheriff’s failure to reappoint him as a deputy because of political disloyalty in supporting the sheriff’s election opponent violated his First Amendment rights of freedom of speech and association was properly dismissed. The court ruled that an exception which allows public officials to fire certain employees for their support of a political opponent when they hold a policymaking position, was applicable in this instance and that the sheriff’s decision not to reappoint the plaintiff did not violate his rights. McCaffrey v. Chapman, #17-2198, 2019 U.S. App. Lexis 10424 (4th Cir.).
An intermediate California appeals court denied a petition seeking a judicial order compelling county officials to put the plaintiff on the primary election ballot for county sheriff. It ruled that Calif. Government Code section 24004.3, which requires persons to be elected county sheriff to meet certain law enforcement experience and education, is constitutional. The plaintiff did not meet those qualifications, having no prior law enforcement experience. The court found that there were good reasons why the legislature imposed an experience requirement because, in order to have a true understanding of law enforcement, you must learn about it in the field doing it. The state Constitution empowers the legislature to provide for the election of county sheriffs and to set minimum qualifications for sheriff candidates. The court rejected the argument that section 24004.3 conflicts with or was preempted by the California Constitution. The court also held that there was no merit to the argument that the legislature exceeded its authority pursuant to the California Constitution in enacting section 24004.3 or that the statute violates the First Amendment rights of would-be candidates or of the voters. Boyer v. Ventura County, #B289919, 2019 Cal. App. Lexis 218, 2019 WL 1236050.
A county financial resources directory was a Democrat. When a Republican assumed control of the county board, she was fired. She brought claims under the First Amendment and Equal Protection Clause, claiming that Vermilion County and its chairman violated her right of political affiliation and engaged in political retaliation. The trial court dismissed the equal protection claim as duplicative of the First Amendment claim, and, after finding that the substantial fiscal and budgetary responsibilities of the plaintiff’s position fit within the exception to political patronage dismissals, granted the defendants summary judgment. A federal appeals court upheld this result, relying on U.S. Supreme Court precedents that, while public employers cannot condition employment on an individual’s political affiliation, an employee’s First Amendment right of political association leaves room for employers to dismiss employees in positions where political loyalty is a valid job qualification. Determining whether a particular job fits within the exception requires “focus on the inherent powers of the office as presented in the official job description,” while also looking at “how the description was created and when, and how often, it was updated.” The plaintiff held a senior position requiring the trust and confidence of the elected Board members, including the county chairman, and entailing substantial policymaking authority. Bogart v. Vermilion County, #18-1719, 2018 U.S. App. Lexis 33137 (7th Cir.).
A police officer claimed that he was terminated in violation of his First Amendment rights because of his support of a purported political opponent of the mayor. A federal appeals court held that the employee, who was accused of no wrongdoing, presented sufficient evidence to establish that he suffered an adverse employment action under the First Amendment as a result of his support of a city councilwoman because he did not learn of his firing until the moment that he received his letter of termination, and then he had a mere five minutes to agree to submit his resignation, a letter that the employer wrote, or accept his termination. Five minutes was not enough to overcome the coercive atmosphere and other circumstances that precipitated the employee's signing of the letter of resignation. The plaintiff did not voluntarily leave his employment with the city as the defendants argued, but rather was effectively terminated. A reasonable jury could conclude that his resignation was not a product of his free will, Rodriguez v. City of Doral, #15-11595, 863 F.3d 1343 (11th Cir. 2017).
Former workers' compensation arbitrators in Illinois filed a suit challenging a workers’ compensation reform statute. While that lawsuit was pending, the governor declined to reappoint them, ending their employment. But the arbitrators failed to show retaliation in violation of the First Amendment because the arbitrators were policymakers who could be terminated for engaging in speech on a matter of public concern in a manner that was critical of their superiors or their stated policies. Because the lawsuit sought to undercut the governor’s workers’ compensation reform initiative, it was sufficient reason for the decision not to reappoint the arbitrators because they were policymakers and not ministerial employees. Because they were gubernatorial appointees, their work was politically sensitive, and they exercised significant discretion in the performance of their duties. Hagan v. Quinn, #15-1791, 867 F.3d 816 (7th Cir. 2017).
An assistant state’s attorney claimed that she was fired for supporting the State’s Attorney’s political rival, in violation of her First Amendment rights. A federal appeals court upheld the trial court’s determination that the plaintiff was a policymaker exempt from the First Amendment’s protection against patronage dismissals. The court reasoned that to hold otherwise would undermine the public mandate granted to the victor of a hard-fought election and would needlessly interfere with a state official’s managerial prerogative. Borzilleri v. Mosby, #16-1751, 874 F.3d 187 (4th Cir. 2017).
When the mayor of Chicago announced that he would not seek reelection, several police officers volunteered to provide campaign security for what proved to be the successful candidate in the mayoral election. Six of the volunteers were appointed to the new mayor’s transition detail. He told the police superintendent that his permanent detail should reflect the city's diversity and be “bare bones.” The detail was reduced from 21 officers and two commanders to 16 officers and one commander. Five officers working on the transition detail were selected. The final detail contained seven white, five Hispanic, and five black officers. The department reassigned a number of white and Hispanic members of the prior mayor’s protective services as patrol officers. In their prior assignments, they held the rank of patrol officer but received a sergeant’s pay. The reassigned officers claimed patronage hiring in violation of the First Amendment, 42 U.S.C. 1983 violation of the “Shakman” consent decrees against patronage employment, and race discrimination. All of the claims were either dismissed or rejected at trial. A federal appeals court upheld this result and ruled that there was sufficient evidence that city officials did not consider political factors when appointing the detail and that the trial court did not err in excluding evidence of historic race discrimination. Houlihan v. City of Chicago, #16-2949, 2017 U.S. App. Lexis 17427 (7th Cir.).
When the mayor of Chicago announced that he would not seek reelection, several police officers volunteered to provide campaign security for what proved to be the successful candidate in the mayoral election. Six of the volunteers were appointed to the new mayor’s transition detail. He told the police superintendent that his permanent detail should reflect the city's diversity and be “bare bones.” The detail was reduced from 21 officers and two commanders to 16 officers and one commander. Five officers working on the transition detail were selected. The final detail contained seven white, five Hispanic, and five black officers. The department reassigned a number of white and Hispanic members of the prior mayor’s protective services as patrol officers. In their prior assignments, they held the rank of patrol officer but received a sergeant’s pay. The reassigned officers claimed patronage hiring in violation of the First Amendment, 42 U.S.C. 1983 violation of the “Shakman” consent decrees against patronage employment, and race discrimination. All of the claims were either dismissed or rejected at trial. A federal appeals court upheld this result and ruled that there was sufficient evidence that city officials did not consider political factors when appointing the detail and that the trial court did not err in excluding evidence of historic race discrimination. Houlihan v. City of Chicago, #16-2949, 2017 U.S. App. Lexis 17427 (7th Cir.).
An assistant county attorney was fired
after she was elected to the city council in a municipality in the county. She
sued, claiming that this violated her protection against political
discrimination under the First Amendment as well as state law and a county
ordinance. Rejecting the First Amendment argument, the federal appeals court
stated that prior U.S. Supreme Court rulings make it plain that public employers may prohibit their employees from
participating in a wide array of political activities, including running for
elective office. The record in the case showed multiple potential points of
conflict that could face the plaintiff as a member of the city council and an
attorney in the county attorney’s Office. Therefore, the court rejected
plaintiff's First Amendment arguments. Because plaintiff's termination did not
violate the First Amendment, her section 1983 claim was also properly
dismissed. The appeals court also held that the state law and county law claims
were also properly dismissed, since neither created a private right of action,
and neither protected the holding of a public office by a public employee. Loftus v. Bobzien,
#15-2164, 848 F.3d 278 (4th Cir. 2017).
A former
deputy sheriff was allegedly not rehired by the Broward County, Florida
Sheriff, allegedly because of his political loyalties and in violation of his
First Amendment rights. The county had designated the sheriff as its chief
correctional officer (CCO). The trial court, on this basis, held that the
sheriff, acting as the CCO in the hiring and firing of his deputies, was an arm
of the state and therefore entitled to the benefit of its Eleventh Amendment
immunity from suit in federal court. A federal appeals court rejected this
analysis and therefore overturned summary judgment for the sheriff. The
definition of sheriffs as county officers
in the Florida Constitution weighed toward county status, and a county could,
but need not, designate its sheriff as its CCO under a state statute. The
state's imposition of minimum hiring qualifications for deputies, a strong
indicia of state control, was counterbalanced by the county's unilateral
ability to designate its CCO and the county's involvement in the removal of
deputies. The fact that the sheriff's budget was funded entirely by the county,
even when acting as CCO, was a strong indicator of county control, and the
factor of county (not state) responsibility for adverse judgments weighed
against immunity. Stanley v. Broward County Sheriff, #15-13961, 843 F.3d 920 (11th Cir. 2016).
A U.S. Supreme Court
case involved a police detective who was a friend of the former police chief,
who was running against the incumbent mayor. He was not, however, involved in
his campaign, and could not even vote for him based on his city of residence.
He did, however, at the request of his mother, who was bedridden, pick up one
of the candidate's campaign signs to replace one that had been stolen from her
lawn. An officer assigned to the mayor's security staff saw this, and the next
day, the detective was demoted to a walking post as a result of his "overt
involvement in a political election." He sued, claiming that this was
unlawful retaliation for protected First Amendment activity. A federal appeals
court rejected his free speech claim, as he did not intend to convey a
political message when he picked up the sign. He did not show retaliation for
an exercise of the right to freedom of association as he had no affiliation
with the campaign. Prior precedent barred a claim of unlawful retaliation based
solely on a "perceived," as opposed to actual, exercise of First
Amendment rights. The U.S. Supreme Court reversed. It held that the officer was
entitled to seek relief for his demotion based on the city's mistaken belief
that he was engaged in political speech, since the city allegedly acted upon a
constitutionally harmful policy regardless of whether or not the officer did in
fact engage in political activity. The harm— discouraging employees from
engaging in protected speech or association in violation of the First
Amendment—is the same, regardless of factual mistake. Heffernan v. City of
Paterson, #14-1280, 136 S. Ct. 1412, 194 L. Ed. 2d 508, 2016 U.S. Lexis 2924.
In a further development in the case, in remanding for trial, the federal
appeals court said that, if, when the detective was disciplined, the city had
in effect (whether written or unwritten) a neutral policy prohibiting officers
assigned to the Office of the Chief of Police from overt involvement in
political campaigns, such a policy meets constitutional standards. The trial
court must then determine whether he was aware or reasonably should have been
aware of such a policy and whether he was disciplined for what reasonably
appeared to be a violation. Heffernan v. City of Paterson, #14-1610, 2016 U.S.
App. Lexis 15695 (3rd Cir.).
A deputy court clerk
challenged her termination by the court clerk for supporting his election
opponent as constituting political discrimination in violation of the First
Amendment. A federal appeals court found that the defendant was not entitled to
qualified immunity, as he had not established that the deputy clerk's job
duties made her position confidential or policymaking so that party affiliation
and loyalty was required. Lawson v. Gault, #14-2360, 2016 U.S. App. Lewis
12518, 41 I.E.R. Cas. (BNA) 820 (4th Cir.).
A previous sheriff had approved the plaintiff
deputy's request to work as the part-time police chief of a nearby
municipality. After the new sheriff took office, the plaintiff was injured
while working as a deputy and received disability benefits for a time. The
sheriff told him that his secondary employment was suspended until he could
return to work as a deputy. After that, the deputy openly discussed at a party
the possibility of running for sheriff in the next election. The sheriff
conducted an investigation that concluded that the plaintiff continued to work
at his secondary job after he was told it was suspended. The plaintiff was then
terminated for cause, and he sued. A federal appeals court held that the
plaintiff adequately alleged a political discrimination claim, presenting
evidence from which it could be found that the charged violation of department rules
was a pretext for political discrimination, as there was evidence that the
sheriff rejected lesser sanctions that were available and suggested because of
the plaintiff's expressed desire to run against him. The plaintiff's due
process claim was rejected, however, because he waived a termination hearing in
favor of an arbitration of a grievance concerning rule violations. The
grievance was not addressed to the termination which had then occurred, so due
process was available, but not pursued by the plaintiff. Yahnke v. County of
Kane, #15-2162, 2016 U.S. App. Lexis 9517, 41 I.E.R. Cas. (BNA) 656 (7th Cir.).
The chief deputy clerk in a courthouse
asserted that her firing constituted unlawful retaliation for political
affiliations as well as gender discrimination. Rejecting the political
affiliation claim, the appeals court found it was permissible to fire her on
that basis as she was in a job where it was appropriate to require personal and
political loyalty. She also failed to provide any evidence that the reasons
given for her termination were a pretext for sex discrimination. DePriest v.
Milligan, #15-1365, 2016 U.S. App. Lexis 9630 (8th Cir.).
An
employee of a state agency claimed that she suffered unlawful retaliation for
opposing an employment practice prohibited by Title VII and other employment
discrimination laws. The conduct she opposed - the amendment of internal
procedures in a manner that, she believed, would permit political
considerations to influence the evaluation of discrimination claims - was not a
“practice made an unlawful employment practice” by Title VII. Cooper v. N.Y.
State Dep’t of Labor, #15-3392, 2016 U.S. App. Lexis 7588, 100 Empl. Prac. Dec.
(CCH) P45543, 129 Fair Empl. Prac. Cas. (BNA) 44 (2nd Cir.).
A police detective was a friend of the former police
chief, who was running against the incumbent mayor. He was not, however,
involved in his campaign, and could not even vote for him based on his city of
residence. He did, however, at the request of his mother, who was bedridden,
pick up one of the candidate's campaign signs to replace one that had been
stolen from her lawn. An officer assigned to the mayor's security staff saw
this, and the next day, the detective was demoted to a walking post as a result
of his "overt involvement in a political election." He sued, claiming
that this was unlawful retaliation for protected First Amendment activity. A
federal appeals court rejected his free speech claim, as he did not intend to
convey a political message when he picked up the sign. He did not show
retaliation for an exercise of the right to freedom of association as he had no
affiliation with the campaign. Prior precedent barred a claim of unlawful
retaliation based solely on a "perceived," as opposed to actual,
exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610,
777 F. 3d 147 (3rd Cir. 2015). The U.S. Supreme Court reversed. It held that
the officer was entitled to seek relief for his demotion based on the city's
mistaken belief that he was engaged in political speech, since the city
allegedly acted upon a constitutionally harmful policy regardless of whether or
not the officer did in fact engage in political activity. The harm—
discouraging employees from engaging in protected speech or association in
violation of the First Amendment—is the same, regardless of factual mistake.
Heffernan v. City of Paterson, #14-1280, 2016 U.S. Lexis 2924.
An employee of a state agency was a political
appointee of the elected Republican Land Commissioner. The Commissioner's
decision not to seek reelection put her job at risk. Allegedly to see that she
remained employed by the state, the outgoing Commissioner appointed her to a
senior civil service job where she'd be protected by state law against being
removed for political reasons. A newly elected Democratic Commissioner
dismissed her, and she sued, arguing that she was a protected civil service
employee and that the new Commissioner had unlawfully retaliated against her
for exercising her right to free political association in violation of the
First Amendment. A federal appeals court upheld the denial of qualified
immunity to the new Commissioner, as there was evidence that the plaintiff's
political affiliation was a motivating or substantial factor in her dismissal.
The First Amendment rights allegedly involved were clearly established at the
time of the dismissal. Walton v. NM State Land Office, #14-2166, 2016 U.S. App.
Lexis 7030 (10th Cir.).
Under a agreement known as the Shakman Accord,
the city of Chicago agreed to eliminate political considerations in making
employment decisions except for certain high level employees. Eight applicants
for employment as city police officers who had been disqualified from further
consideration claimed violations of the Shakman Accord as well as of the city's
2011 hiring plan. Claims under the Shakman Accord were properly dismissed as
they were filed beyond the 180-day limit stated in the Accord itself. Further,
the plaintiffs failed to assert any facts whatsoever relating to their
political beliefs, affiliations, or activities, so no viable claim of political
discrimination was established. Bonnstetter v. City of Chicago, #14-2977, 2016 U.S. App.
Lexis 1795 (7th Cir.).
A Georgia deputy sheriff's First Amendment rights
were not violated when an elected sheriff, upon taking office, allegedly
transferred her to a position with less responsibility and authority, as well
as less prestige because she had supported his opponent. Under state law,
political loyalty was an appropriate requirement for the position of deputy
sheriff. The claim that her transfer constituted gender discrimination was
rejected. The sheriff stated that she was transferred to remedy problems with
the jail, and she failed to show that this was a pretext for discrimination.
Ezell v. Darr, #13-15851, 2015 U.S. App. Lexis 16851 (11th Cir.).
At a time when Illinois had a Democratic
governor, the plaintiff, a conservative who votes Republican, was working in
Chicago as a special agent for the state liquor control commission. She bought
a home in southern Illinois, and asked about transferring to that area. She
failed to submit a formal transfer request or apply for the job, and did not
get the position. She sued state officials, claiming that she was denied the
transfer in violation of her First Amendment rights because of her political
affiliation, as well as because of her gender. A federal appeals court upheld
summary judgment in favor of the defendants, since the undisputed evidence
showed that the plaintiff did not receive the desired transfer because she
never submitted the proper transfer request paperwork or otherwise apply for
the desired position. There was no causal link between this and her Republican
political affiliation. Bisluk v. Hamer, #14-3365, 2015 U.S. App. Lexis 16037,
127 Fair Empl. Prac. Cas. (BNA) 1729 (7th Cir.).
After a new mayor was elected for an Indiana
city, he replaced many city staff members with his political supporters. A
federal appeals court ruled that it could not exercise pendant jurisdiction
over the city's appeal on employees' First Amendment claims, as these claims
were not "inextricably intertwined" with the mayor's appeal from a
partial denial of qualified immunity against him personally, qualified immunity
was properly denied as to one employee's claim, as unless evidence to the
contrary was presented at trial, it did not appear that political affiliation
was an appropriate requirement for a job as the city utility department's
customer service supervisor. Allman v. Smith, #14-1792, 2015 U.S. App. Lexis
10680 (7th Cir.).
A police sergeant claimed that her termination
was retaliation for critical comments against the police chief that she made on
her Facebook page. A federal appeals court rejected her First Amendment claim.
While the statements she made were not within the ordinary scope of her duty,
so that she was speaking as a private citizen, her comments were not on a
matter of public concern, but rather primarily involved her displeasure with
the chief's intra-departmental decisions that impacted her personally. Further,
even if they had involved matters of public concern, the department's
substantial interests in preventing insubordination and maintaining discipline
and close working relationships outweighed her minimal interest in making the
statements. Graziosi v. City of Greenville, #13-60900, 2015 U.S. App. Lexis 370
(5th Cir.).
A police detective was a friend of the former
police chief, who was running against the incumbent mayor. He was not, however,
involved in his campaign, and could not even vote for him based on his city of
residence. He did, however, at the request of his mother, who was bedridden,
pick up one of the candidate's campaign signs to replace one that had been
stolen from her lawn. An officer assigned to the mayor's security staff saw
this, and the next day, the detective was demoted to a walking post as a result
of his "overt involvement in a political election." He sued, claiming
that this was unlawful retaliation for protected First Amendment activity. A
federal appeals court rejected his free speech claim, as he did not intend to
convey a political message when he picked up the sign. He did not show
retaliation for an exercise of the right to freedom of association as he had no
affiliation with the campaign. Prior precedent barred a claim of unlawful
retaliation based solely on a "perceived," as opposed to actual,
exercise of First Amendment rights. Heffernan v. City of Paterson, #14-1610,
2015 U.S. App. Lexis 967 (3rd Cir.).
A sergeant employed by a county sheriff's
department also served as the chairman of a law enforcement political action
committee (PAC). The sheriff, up for reelection in a contested race, approached
him while he was on duty and told him the PAC should support him. The sergeant
replied that the sheriff would be treated just the same as any candidate and
that the PAC's members would vote on whom to endorse. The sheriff allegedly
told the sergeant that he would be transferred to jail duties if the PAC failed
to support his reelection. The sheriff allegedly knew that the sergeant
supported his opponent. The PAC did not endorse the sheriff, and three weeks
later, the sheriff transferred the sergeant to a job at the jail that was
"extremely less desirable" than his former duties, according to a
lawsuit for political discrimination. He continued working at the jail for a
year before being fired after disseminating a recording allegedly containing
the sheriff's threat against another officer. The sheriff was not entitled to
qualified immunity on the retaliatory transfer claim as the sergeant
sufficiently alleged that he was demoted in violation of his First Amendment
rights for failing to endorse the sheriff. The sheriff was entitled to
qualified immunity on the claim that the sergeant was terminated due to
protected activities as there were no details supporting an inference that the
sergeant was involved in the recording that he was allegedly fired for
disseminating, and therefore no causal connection between protected activities
and the firing. Burnside v. Nueces Cnty., #13-41344, 2014 U.S. App. Lexis 23126
(5th Cir.).
Eleven former city employees sued the mayor and
city claiming that the mayor had violated their First Amendment rights by
firing them because of their political affiliations. The trial court granted
summary judgment to the mayor on the claims of nine of the eleven employees,
finding that his argument that political affiliation was a permissible
qualification for their jobs was sufficiently arguable to entitle him to
qualified immunity. The trial court had declined, however, to certify
interlocutory appeals with respect to the claims of the other two plaintiffs. A
federal appeals court stayed the proceedings pending an interlocutory appeal of
the issue as to whether the mayor was entitled to qualified immunity on the
claims of these two employees. The issue of whether a job is one for which
political affiliation is an allowable criterion is an issue of law, not a
question of fact as the trial court seemed to think. If the mayor was entitled
to qualified immunity, he was entitled not to stand trial and that privilege
would effectively be lost if the claims were erroneously allowed to go to
trial. Claims against the city were also stayed until this issue is decided.
Allman v. Smith, #14-1792, 764 F.3d 682 (7th Cir. 2014).
The collective bargaining organization
representing Philadelphia police officers, the Fraternal Order of Police,
operated a political action committee to distribute political contributions to
candidates for state and local office. The union, the political action
committee, and four officers sued to question the constitutionality of
provisions of the city charter that barred employees of the police department
from making contributions "for any political purpose. The provision only
applied to police, and not to other city employees and was adopted in 1951
because of a history of patronage employment. The federal appeals court found
that the ban was unconstitutional, reasoning that it may address valid concerns
(such as police partiality and politicized personnel practices) but that the
city did not explain how the ban addressed the feared harms in a direct and
material way. There was a lack of fit between the city's stated purpose and the
means chosen to promote it, and it was illogically under-inclusive. Lodge No. 5
of the Fraternal Order of Police v. City of Philadelphia, #13-1516, 763 F.3d
358 (3rd Cir. 2014).
A former fire captain claimed that his
termination was an act of political discrimination in violation of his First
Amendment rights in retaliation for his support for a candidate for Fire
Commissioner. A federal appeals court rejected this claim, finding that the
employer gave legitimate business-related reasons for their personnel
decisions, including a new familial relations policy forbidding officers from
working shifts with or supervising their family members, such as the
plaintiff's wife, a full time firefighter, and that the employee failed to show
that the reasons given were pretexts. Pierce v. Cotuit Fire District, #13-1428,
2014 U.S. App. Lexis 1746 (1st Cir.).
Six employees of a sheriff's office claimed that
they lost their jobs after expressing support for the sheriff's opponent in an
upcoming election. Some of them did so by "liking" or commenting on
the opponent's Facebook page. A federal appeals court found that expressing
likes on Facebook is protected free speech, and the "Internet equivalent
of displaying a political sign in one's front yard." The defendant sheriff
was entitled, however, to qualified immunity on three employee's claims seeking
damages against him individually as well as Eleventh Amendment immunity against
claims seeking money damages against him in his official capacity. No Eleventh
Amendment immunity was available, however, on three employee's claims seeking
reinstatement in their jobs. Bland v. Roberts, #12-1671, 2013 U.S. App. Lexis
19268 (4th Cir.).
An employee at a county jail wrote a letter to the
editor of a newspaper during an election campaign for sheriff, expressing his
support for the current sheriff's reelection and opposing his political
opponent. When the opponent was elected, the employee and a number of others
were told that they had two months to improve conditions at the jail or they
would be fired. Subsequently, the employee was demoted, and he took retirement,
and he sued the sheriff, his office, and the county for unlawful retaliation in
violation of the First Amendment. A federal appeals court found that summary judgment
for the defendants was inappropriate since there was evidence from which a jury
could find that the defendants had failed to show that they would have taken
the same actions against the plaintiff in the absence of his protected speech.
The court found that the plaintiff, in writing the letter, was speaking as a
citizen supporting a candidate during an election. Haverda v. Hays County,
#12-51008, 2013 U.S. App. Lexis 14485 (5th Cir.).
A police department detective supported a
candidate for mayor in a party primary. When the candidate lost, the detective
talked to a reporter about the election. One day after these comments were
published, the detective was reassigned to station duty officer, a more
deskbound position. He sued for unlawful retaliation in violation of the First
Amendment on the basis of his support for a political candidate, and for
demotion and constructive discharge without due process. The defendants
counterclaimed for abuse of process and malicious prosecution, and the trial
court granted the defendants summary judgment on the plaintiff's claims and
summary judgment to the plaintiff on the defendants' abuse of process claim but
not on their malicious prosecution claim, which the parties subsequently agreed
to be dismissed. The appeals court reversed on the retaliation claim, finding
that there was enough evidence for a reasonable jury to conclude that the
reassignment was motivated at least in part by a retaliatory motive, after
which the defendants would have to try to show that they would have taken the
same action even without the protected speech. Peele v. Burch, #12-3562, 2013
U.S. App. Lexis 13800 (7th Cir.).
A number of correctional officers were members of
a specialized Special Operations Response Team (SORT) that guarded inmates in
the Cook County Jail’s Abnormal Behavioral Observation Unit (ABO). When six
violent felons escaped from that unit, an officer confessed to allowing them to
escape and named three other officers as either having advance knowledge of the
planned escape or asssisting him. The SORT team was disbanded and the
plaintiffs were investigated and reassigned. In a lawsuit, they claimed that
they had been retaliated against because of their political support for a
particular candidate for sheriff. A federal appeals court rejected this claim,
noting that there had been probable cause for the investigation, so other
motivations for investigating them were less relevant. It was clearly
objectively reasonable to conduct an investigation of officers believed to have
been involved in a multiple-felon jailbreak. Hernandez v. Cook Cnty. Sheriff's
Dep't, #12-1941, 2013 U.S. App. Lexis 6417 (7th Cir.).
An employee of a county court clerk's
office asserted that her termination by the newly elected clerk was based on
her prior candidacy in the primary as the clerk's rival, and therefore
unconstitutional under the First Amendment. A federal appeals court rejected
this claim, finding that it did not violate the First Amendment. The jobs of
deputy court clerks were not protected by civil service, and those in the job
lacked a protected property interest in their employment. The court noted that
this was not a pure political patronage case nor a pure political affiliation
case, since both the newly elected clerk and the terminated employee belonged
to the same political party, both being Republicans. The court held that an
elected official may fire an immediate subordinate for opposing her in an
election without violating the First Amendment if the subordinate, under state
or local law, has the same duties and powers as the elected official, as they
are the type of confidential employee who can be terminated under applicable
U.S. Supreme Court precedents. The clerk had to be able to select a deputy from
whom she could expect undivided loyalty even if the day-to-day job did not
involve setting policy or the exercise of unlimited discretion. Underwood v.
Harkins, #11-13117, 2012 U.S. App. Lexis 21788 (11th Cir.).
An employee of a county detention facility was fired by
a federal court-appointed administrator. The administrator was appointed
pursuant to a settlement with inmates who sued over the conditions at the
facility. He argued that the termination, justified on the basis of budget
cuts, was actually motivated by his political affiliation, and was unlawful, in
violation of his federal civil rights. The defendant argued that, because he
was court appointed, he was entitled to absolute quasi-judicial immunity. A
federal appeals court rejected this argument, ruling that terminating an
employee is an administrative act which absolute immunity does not apply to.
None of the administrator's duties were judicial in nature. "Nor would the
administrators of a municipality that has filed for reorganization under
Chapter 9 be immune from claims under sec. 1983 if they engaged in patronage
hiring." Coleman v. Dunlap, #11-2669. 2012 U.S. App. Lexis 17696, 34
I.E.R. Cas. (BNA) 321 (7th Cir.).
A police commander claimed that he had lost
certain duties and perquisites and that this constituted a series of adverse
employment actions taken against him because of political animus. He failed to
show, however, that he was being discriminated against because of his
participation in constitutionally protected activities or his party preference
or any other political affiliation. Additionally as to a due process claim for
alleged deprivation of a property interest in his job, he had not alleged that
he was fired, demoted, or subjected to diminished compensation. He had no
protected property interest in the loss of particular job-related duties.
Rojas-Velazquez v. Figueroa-Sancha, #11-1447, 2012 U.S. App. Lexis 6395
(1st Cir.).
After a lieutenant lost his election bid to
replace the incumbent sheriff, during which he accused the sheriff-coroner of
corruption, he was placed on administrative leave and then demoted. In a
lawsuit by the ex-lieutenant charging unlawful retaliation in violation of his
First Amendment rights, a federal appeals court rejected the sheriff's defense
that the plaintiff had been a policymaker and therefore could be dismissed for
politically motivated reasons. "Moreover, dismissals on the basis of
political considerations must further a 'vital government end' [absent here]
because they infringe upon a constitutional right." The court ruled that
the sheriff was entitled to qualified immunity from liability, however, in
light of the plaintiff's concurrent service as chief of police services for a
city under a contract between the city and county. Under these circumstances,
the sheriff could have mistakenly believed that political loyalty was required
for someone with the lieutenant's job responsibilities. Hunt v. County of
Orange, #10-55163, 2012 U.S. App. Lexis 2815 (9th Cir.).
A newly elected mayor found that the city's
employees had swollen in number during the administration of the previous
mayor, a member of a different political party. Because the city now had a $7.2
million annual deficit, with 82% of its budget spent on salary and benefits, he
made personnel cuts. In a lawsuit by 61 terminated employees, he was accused of
due process violations and political discrimination. An appeals court ruled
that these claims failed because the personnel reductions were carried out
under a validly enacted ordinance as a bona fide reduction in force for
legitimate financial reasons. The selection of those who were terminated was
not based on their political affiliations. As for the due process claim,
pre-termination hearings "are not required by due process where a bona fide
government reorganization plan bases dismissals on factors unrelated to
personal performance." Rodriguez-Sanchez v. Municipality of Santa Isabel,
#09-2635, 658 F.3d 125 (1st Cir. 2011).
A city employee had severe attendance
difficulties due to health problems. When she was denied a closer parking space
at work that she had requested as a reasonable accommodation because of her
difficulty walking, she sued the city for disability discrimination under the
Americans with Disabilities Act (ADA). A federal appeals court ruled that she
was not an otherwise qualified employee for purposes of the ADA, because her
attendance was unpredictable, and regular attendance was an essential function
of her job. The record also showed that her absenteeism problem was present
long before she was diagnosed with fibromyalgia, her claimed disabling
condition. The court also rejected the plaintiff employee's retaliation claim,
since she could not show that she suffered any adverse employment action in
retaliation for requesting the accommodation of the closer parking space.
Colon-Fontanez v. Municipality of San Juan, #10-1026, 660 F.3d 17
(1st Cir. 2011).
A sergeant failed to prove that he was passed
over for promotion to lieutenant for political reasons by a Democratic sheriff
because he is a Republican, did not donate to the sheriff's election campaign,
and donated to and voted for his Republican opponent. The average donations to
the sheriff's election campaign by eligible officers not promoted exceeded the
average donations of those who were promoted. The plaintiff's "lurid"
evidence concerning possible sex discrimination in favor of a female officer
who was promoted, including a story about her having sex with a boyfriend in a
backyard hot tub in the view of others (and the fact that she was the
sister-in-law of one of the sheriff's top advisors) was irrelevant and
inadmissible hearsay, since the plaintiff had not claimed gender discrimination
in his complaint. He was properly denied permission to amend his complaint to
include such a claim 56 months after the suit was filed. "If all that's
charged is discrimination on political grounds, any nonpolitical ground that
the defendant can prove would have caused the discrimination regardless of the
presence of political hostility will preclude liability." Brown v. County
of Cook, #11-1953, 2011 U.S. App. Lexis 21513 (7th Cir.).
Sheriff could involuntarily transfer a
lieutenant for political reasons from a policymaking position. Bardzik v.
County of Orange, #09-55103, 2011 U.S. App. Lexis 6242 (9th Cir.).
In a political affiliation case, the plaintiff
alleged that he was fired from his job at the Puerto Rico Dept. of Correction
because his superiors disagreed with his political beliefs. A grant of summary
judgment for the defendants was affirmed because he failed to show that the
defendants knew of his political affiliation. Del Toro-Pacheco v. Pereira,
#09-2532, 2011 U.S. App. Lexis 2344 (1st Cir.).
Management's refusal to reinstate a Tennessee
state trooper who had voluntarily left his position to seek election as mayor
did not violate the First Amendment. Sain v. Mitchell, #09-5726, 376 Fed. Appx.
582, 2010 U.S. App. Lexis 9685, 2010 FED App. 0285N. (6th Cir. 2010).
Federal appeals court orders a jury trial on
liability and damaged for a lieutenant who claimed that he was wrongfully
demoted to sergeant because of a political party affiliation. Eckerman v.
Tennessee Dept. of Safety, #09-6181, 2010 U.S. App. Lexis 25849, 2010 FED App.
0387P (6th Cir.).
"An employee's past employment record of 38
years of service with no performance problems or disciplinary action is a
mitigating factor, but must be weighted against the seriousness of the offenses
in assessing whether the presumptive penalty of removal for a Hatch Act
violation is not warranted." Termination was appropriate for soliciting a
political contribution to a Presidential candidate's political campaign.
Special Counsel v. Ware, #CB-1216-09-0025-T-1, 2010 MSPB 105.
First Circuit affirms a jury award of $19,000
each to seven Ranger cadets who were terminated because of their party
affiliations. Cortes-Reyes v. Salas-Quintana, #08-2210, 2010 U.S. App. Lexis
12439 (1st Cir.).
In a First Amendment action, a federal court in
Manhattan rejects an unlawful dismissal claim of a terminated fire
commissioner. A fire commissioner is expected to perform his job duties in
response to partisan politics; it is important that a fire commissioner share
the political ideology or affiliation of the mayor; and, a fire commissioner
exercises policy-making duties in matters such as hiring, instruction, and
discipline of employees. A jury’s verdict on the plaintiff’s First Amendment
claim must be set aside; the mayor was entitled to judgment as a matter of law.
Cicchetti v. Davis, #07 Civ. 10546, 2009 WL 928618, 2009 U.S. Dist. Lexis 29354
[and 6511] (S.D.N.Y.).
A public employee’s decision to remain
politically neutral in the general election is entitled to the same protection
as a choice to support a political opponent of the mayor. Zerante v. DeLuca,
#08-1381, 2009 U.S. App. Lexis 2278 (7th Cir.).
Fifth Circuit rejects
the wrongful termination claim of a criminal investigator who was fired
immediately after announcing his intent to run for sheriff. The D.A
legitimately terminated the plaintiff because he reasonably feared disruptive
tension between the sheriff's office and the D.A.'s office. James v. Mellen,
#08-60285, #08-60285, 2008 U.S. App. Lexis 25311 (5th Cir.).
Federal court declines to dismiss a suit by a police
sergeant who alleged retaliation because her husband ran for public office.
Riddell v. Gordon, #04-1201, 2008 U.S. Dist. Lexis 88410 (D. Del.).
Sixth Circuit rejects a First Amendment lawsuit
filed by a deputy who was fired immediately after the sheriff learned in a
newspaper article that the deputy intended to run against him in the next
election. Greenwell v. Parsley, #07-5694, 2008 U.S. App. Lexis 18722 (6th
Cir.).
Federal court holds that a terminated Kentucky
homeland security civil servant must establish with evidence that her
Democratic affiliation was a substantial or motivating factor in the decision
to terminate her. And if she meets that burden, to avoid liability, the
defendants need to show that they would have fired her anyway, even if she were
a Republican. Back v. Hall, #07-5934/07-5935, 2008 U.S. App. Lexis 17057 (6th
Cir.).
Perceived slights and changed duties are not
enough to demonstrate that working conditions were inferior; she failed to show
that she suffered an adverse employment action. Torres-Martinez v. Puerto Rico
Dept. of Corrections, #06-1881, 2007 U.S. App. Lexis 9295 (1st Cir.).
In a 2-to-1 ruling, the federal Merit Service
Protection Board declined to review a lower ruling that a sheriff's dept. was
not an executive branch agency and therefore was not covered by the federal
Hatch Act, banning certain political activity. Special Counsel v. Jackson Co.
Sheriff Dept., #3B-1216-06-0010-T-1, 2007 MSPB 35 (MSPB) 2007, 2007 MSPB Lexis
1520.
Pennsylvania law banning political endorsements
by state workers did not apply to officers of a corrections union who were on
official leave for association purposes, even if their state salaries continued
while on leave. Pinto v. Civil Serv. Cmsn., #70 MAP 2005, 2006 Pa. Lexis 2519
(Pa. 2006). [N/R]
Federal court refuses to dismiss a First
amendment claim brought by furloughed city workers who claimed that the mayor
retaliated against them for their political activities by not rehiring them. Cochran
v. City of Huntington, #1:05-CV-249, 2006 U.S. Dist. Lexis 71873, prior ruling
at 2006 U.S. Dist. Lexis 39516 (N.D. Ind., 2006). {N/R}
Merit Systems Personnel Board dismisses a
wrongful termination claim by a probationary federal worker who alleged she was
discharged for partisan political reasons, because she failed to show her
separation was a result of an affiliation with a particular political party or
candidate. McCall-Scovens v. Merit Systems Protection Board, # 05-3238, 2006
U.S. App. Lexis 7936 (Fed Cir. 2006), relying on Mastriano v. Fed. Aviation
Adm., 714 F.2d 1152 (Fed. Cir. 1993). {N/R}
A prison warden held a policy-making position and
could not challenge his removal for partisan political reasons. Pierson v.
Blagojevich, #05-3019, 2005 U.S. App. Lexis 29328 (7th Cir. 2006). {N/R}
Federal court declines to dismiss a suit by a police corporal whose rank was
eliminated purportedly because he campaigned for the mayor's opponent. Harvey
v. City of Bradenton, #8:04-CV-1748, 2005 U.S. Dist. Lexis 38095 (M.D. Fla.
2005). {N/R}
Sixth Circuit affirms the demotion of a sheriff's
dept. lieutenant because of his political support of the previous sheriff.
"Where the effective performance of a particular office demands
affiliation with a particular party or subscription to a particular policy, the
Constitution permits dismissal based on political grounds." Cagle v.
Headley, #04-6162, 2005 U.S. App. Lexis 19153 (Unpub. 6th Cir. 2005). {N/R}
Seventh Circuit finds that assistant wardens of
Illinois state prisons are policymaking officials and therefore could be fired
by the governor because of their political affiliation. Riley v. Blagojevich,
#04-3085, 2005 U.S. App. Lexis 20631 (7th Cir. 2005). {N/R}
A county attorney in Michigan holds a
"policymaking or confidential position" and may be terminated for
politically-motivated reasons without violating the First Amendment. Simasko v.
County of St. Clair, #04-2292, 417 F.3d 559, 2005 FED App. 0325P, 2005 U.S.
App. Lexis 15916 (6th Cir. 2005). {N/R}
Federal appeals court declines to overturn the
decision of a newly elected sheriff to fire a superior ranking officer who
supported the defeated incumbent. "... political affiliation is an
appropriate requirement for the position of Asst. Deputy Superintendent for
Training." Hadfield v. McDonough, #04-2020, 407 F.3d 11, 2005 U.S. App.
Lexis 8259 (1st Cir. 2005). {N/R}
Retitling the position of jail classification
director was not a bona fide "reorganization" that eliminated the incumbent's
job. A county personnel board did not have to provide written reasons to
justify reinstatement of the terminated appellant. Sheriff of Plymouth Co. v.
Plymouth Co. Personnel Board, #SJC-09038, 440 Mass. 708, 802 N.E.2d 71, 2004
Mass. Lexis 15 (2004). [2004 FP Jul]
Third Circuit rejects the suit of a terminated
city manager that campaigned against winning council candidates. His interest
in free speech did not outweigh the government's interest in efficiency.
Curinga v. City of Clairton, #03-1278, 2004 U.S. App. Lexis 1654 (3rd Cir.
2004). {N/R}
Second Circuit finds that a union informational
poster about the positions of presidential candidates could not be posted on
government bulletin boards, as it clearly violated the Hatch Act. Burrus v.
Vegliante, #02-6257, 2003 U.S. App. Lexis 14125 (2nd Cir. 2003). [2003 FP Oct]
Ninth Circuit upholds the rights of a newly
elected prosecutor to terminate at-will confidential secretaries that were
hired by and loyal to his predecessor. Hobler v. Brueher, #00-35589, 2003 U.S.
App. Lexis 6596 (9th Cir. 2003). {N/R}
Sixth Circuit overturns an injunction against a
mayor for initiating transfers or demotions or interfering with promotions or
compensation of firefighters because of their political beliefs, associations,
or a desire to remain neutral in political matters. The injunction was overly
broad, was unnecessary to provide the plaintiffs the relief to which they are
entitled, and was not based upon a showing of likely future irreparable harm.
Sharpe v. Cureton, #00-5805, 2003 U.S. App. Lexis 2643, 2003 FED App. 0050P
(6th Cir.). {N/R}
Tenth Circuit refuses to dismiss the suit of a reserve
deputy who was decommissioned after he expressed support for a person who
intended to run against the sheriff in the next election. Bass v. Richards,
#01-1202, 2002 U.S. App. Lexis 16440 (10th Cir. 2002). {N/R}
Fourth Circuit holds that a county sheriff was
entitled to qualified immunity from a claim that his employees were not
reappointed because they supported his opponent in the election, because the
law was not clearly established at the time of the alleged First Amendment
violations. Pike v. Osborne, #01-2050, 2002 U.S. App. Lexis 15134 (4th Cir.
2002). {N/R}
The jobs of county sheriff's deputies were
protected under the First and Fourteenth Amendments for not supporting the
sheriff, as they were not confidential or policy-making employees. Heggen v.
Lee, #00-6315, 284 F.3d 675, 18 IER Cases (BNA) 732, 2002 U.S. App. Lexis 4374,
2002 FED App. 0094P (6th Cir. 2002). [N/R]
The wife of a
firefighter had standing to challenge a city charter provision that prohibits
city employees from contributing money to a candidate for mayor or city
council. IAFF of St. Louis v. City of Ferguson, #01-2277, 283 F.3d 969, 2002
U.S. App. Lexis 4750 (8th Cir. 2002). [N/R]
Second Circuit upholds a $400,000 award against a sheriff
and chief deputy who repeatedly mistreated a deputy who had supported an
opposition candidate. Phillips v. Bowen, #00-7525, 278 F.3d 103, 2002 U.S. App.
Lexis 980, 18 IER (BNA) 397 (2nd Cir.2002). [2002 FP Apr]
Federal jury finds that the City of Chicago Heights,
Illinois, fired one city employee and demoted or reassigned three police
officers in retaliation for their opposition to the mayor's re-election in
1999. It awarded the four a total $700,000 in damages; punitive damages were
assessed against the mayor in the sum of $15,000, against the current police
chief for $7,500 and against an ex-chief for $1,500. Kulwin, Murphy, Pilota and
Robustelli v. Ciambrone, verdict rptd. in the Chicago Tribune on 11/02/2001, p.
3 (N.D. Ill.). {N/R}
Federal jury in Chicago awards a suburban police
lieutenant $3.5 million in compensatory damages against his city, $8 million in
punitive damages against the mayor and $1 million against an ex-chief. They
allegedly sought to remove him for backing an opposition mayoral candidate.
Comanda v. Vil. of Country Club Hills, verdict rptd. in Daily Southtown
1/19/2001; facts and motion ruling in parallel action, Comanda v. Welch,
#00-C-5633, 2001 U.S. Dist. Lexis 8459 (N.D.Ill. 6/19/2001). [2001 FP 43]
Federal appeals courts are badly split on whether
a deputy sheriff is a “policymaker” and can be terminated for political
reasons. DiRuzza v. Co. of Tehama, #98-15997, 206 F.3d 1304, 2000 U.S. App.
Lexis 430, 16 IER Cases (BNA) 15 (9th Cir.). [2000 FP 121-2]
A Pennsylvania statute that restricted ability of
sheriffs to make personnel decisions, and that prohibited his deputies from
engaging in political action violated the equal-protection rights of the
sheriff. DeFazio v. Allegheny Co. Civ. Serv. Cmsn., 756 A.2d 1103, 2000 Pa.
Lexis 2020, 16 IER Cases (BNA) 1121 (Pa. 2000). {N/R}
Supreme Court declines to set aside the
termination of a bailiff for political reasons. Wagner v. Celebrezze, 1998 U.S.
App. Lexis 30136 (6th Cir.); cert. den., #98-1337, 1999 U.S. Lexis 3236 (1999).
[1999 FP 105]
Federal jury awards three Calumet City IL
officers $4.75 million. Their terminations for residency violations were found
to be subterfuge for not supporting the mayor's reelection campaign. Mora v.
Genova, # 97 C 7765, 1998 U.S. Dist. Lexis 2258 and 13216 (N.D. Ill. 1999).
[1999 FP 93]
Federal appeals court bans election signs in
residential yards belonging to state troopers, even if their wives placed the
signs. No disciplinary action can be taken if home is in joint names or is the
sole property of the spouse that erected the sign. Horstkoetter v. Dept. Pub.
Sfty., #97-6367, 159 F.3d 1265, 1998 U.S. App. Lexis 27584 (10th Cir.). [1999
FP 42]
Federal court upholds a police dept. rule
prohibiting officers from running for public office. Moses v. Wytheville, 959
F.Supp. 334 (W.D.Va. 1997). [1998 FP 91]
9th Circuit upholds the firing of an Assistant
District Attorney who opposed the DA in the next election. Fazio v. San
Francisco, 1997 U.S.App. Lexis 27289, 125 F3d 1328 (9th Cir.). [1997 FP 169]
7th Circuit upholds a sheriff who had placed a
deputy on unpaid leave when the latter filed his candidacy for sheriff. Wilbur
v. Mahan, 3 F.3d 214 (7th Cir. 1993). {N/R}
Decision of deputy sheriffs not to participate in
the campaign to re-elect the sheriff was "speech" protected by the
First Amendment. Harter v. Vernon, 953 F.Supp. 685 (M.D.N.C. 1996). {N/R}
The 1st Am. rights of deputies were not infringed
by a sheriff who terminated them for supporting the sheriff's opponent in an
election. Cutliffe v. Cochran, 117 F.3d 1353, 1997 U.S.App. Lexis 19964, 13 IER
Cases (BNA) 132 (11th Cir. 1997), relying on Terry v. Cook, 866 F.2d 373 (11th
Cir. 1989). {N/R}
State agency ordered to remove an employee who
sought election as a state representative. Agency receives federal funds; his
candidacy violated the Hatch Act. Special Counsel v. Alexander, 71 M.S.P.R.
636, 1996 MSPB Lexis 1029. {N/R}
County clerk's termination of deputy clerk for
running against her in the election was not based on the deputy's protected
speech or beliefs, but upon her unprotected political candidacy; the First
Amendment was not violated. Carver v. Dennis, #95-5873, 104 F.3d 847, 1997 U.S.
App. Lexis 686, 1997 FED App. 0018P (6th Cir. 1997). {N/R}
Federal Office of Personnel Management (OPM)
adopts the final rules relating to federal employee political activities. The
"Hatch Act" also applies to federally-supported state and local
personnel. Political Activities of Federal Employees, 5 C.F.R. 734.101-504, 61
(130) Federal Register 35088-35102. www.gpo.ucop.edu/search/default.html [1996
FP 171]
Defendant county sheriff was not entitled to
qualified immunity in a suit by a deputy who alleged his commission was not
renewed in violation of this First Amendment rights because he cooperated with
state law enforcement officials during an investigation of corruption in the
sheriff's dept., where the deputy's right to speak with investigators
concerning corruption was clearly established under the constitution. Cooper v.
Smith, 89 F.3d 761, 11 IER Cases (BNA) 1703 (11th Cir. 1996). {N/R}
Sheriff could have terminated deputy who
announced his candidacy for sheriff, but could not engage in a pattern of
harassment. Wallace v. Benware, 67 F.3d 655 (7th Cir. 1995). {N/R}
Sheriff's lieut.; political support of
opposition; sheriff entitled to qualified immunity. Rogers v. Miller, 57 F.3d
986 (11th Cir.1995). {N/R}
Deputy sheriff - failure of sheriff to reappoint;
jury instructions; preemptory strike of black juror; First Amendment
allegations. Jones v. Plaster, 57 F.3 417 (4th Cir. 1995). {N/R}
Jury award sheriff's officer $117,600; her was
job was downgraded in retaliation for supporting the sheriff's political
opponent. Morris v. Crow, 33 (1625) G.E.R.R. (BNA) 980 (verdict 6-23-95); prior
ruling: 825 F.Supp. 296 (M.D.Fla. 1993). [1995 FP 153-4]
Newly elected sheriff could not consider
political activities of employees in making employment decisions,
notwithstanding fact the commissions of all deputies expired when the sheriff
took office. Baum v. Webb, 863 F.Supp. 918 (E.D.Ark. 1994). {N/R}
Texas county commissioners had no authority to
modify the at-will status of sheriff's deputies by adopting a county personnel
manual requiring just cause for discharge. Without any legal effect, the manual
did not provide a cognizable property interest in continued employment. Garcia
v. Reeves Co., 32 F.3d 200 (5th Cir. 1994). {N/R}
Newly elected Texas sheriff could replace all
employees. No deputies had a property right to continued employment. Williams
v. Bagley, 875 S.W.2d 808 (Tex.App. 1994). {N/R}
Federal appeals court discusses case law
pertaining to the termination or demotion of deputy sheriffs for partisan
political reasons. See: Mitchell v. Thompson, 18 F.3d 425 (7th Cir. 1994) and
cases cited at 426-7. {N/R}
Corrections officer was lawfully required to
resign before running as a candidate for county sheriff. Asher v. Lombardi, 877
S.W.2d 628 (Mo. 1994). {N/R}
Detective who sued sheriff alleging her transfers
were actually demotions in violation of her First Amendment rights for supporting
the former sheriff stated a valid cause of action. Morris v. Crow, 825 F.Supp.
295 (M.D.Fla. 1993). {N/R}
A failure to rehire sheriff's deputies is the
same as terminating them. Adkins v. Miller, 421 S.E.2d 682 (W.Va. 1992). {N/R}
Federal court upholds damage award and
reinstatement for a firefighter; his termination was a subterfuge for union
activities. Boddie v. City of Columbus, 989 F.2d 745 (5th Cir. 1993). [1993 FP
106]
Divided federal appeals court upholds termination
of deputy who refused to assist the sheriff in his reelection campaign. Dimmig
v. Wahl, 983 F.2d 86 (7th Cir. 1993). See also: Terry v. Cook, 866 F.2d 373
(11th Cir. 1989) and Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991). [1993 FP
138]
Federal court annuls punishment against state
troopers for off duty campaign activities. Damages and attorney's fees awarded.
Wicker v. Gordon. 813 F.Supp. 676 (E.D.Ark. 1992). [1993 FP 170]
Appellate court strikes down rule that prohibited
firefighters from identifying themselves as city employees when they canvass
voters on issues affecting them. Evanston Firefighters L-742 v. Illinois St.
Labor Rel. Bd., 609 N.E.2d 790 (Ill.App. 1993). [1993 FP 171]
New police chief did not have to reappoint the
person who served as secretary to the former chief. Dismissed worker was a
"confidential employee." Soderstrum v. Town of Grand Isle, 925 F.2d
135 (5th Cir. 1991). [1992 FP 89-90]
State police regulation prohibiting officers from
running for political office is constitutional. Krisher v. Sharpe, 763 F.Supp.
1313 (E.D.Pa. 1991). [1992 FP 106]
If true, demotion of fire official for failure to
only hire patronage employees is a federal civil rights violation. Shanahan v.
City of Chicago, 777 F.Supp. 683 (N.D.Ill. 1991). [1992 FP 170-1]
Assignment of fire official to unfavorable
working hours as retaliation for political activities is a civil rights
violation. Walsh v. Ward, 757 F.Supp. 959 (C.D.Ill. 1991). See also: Rutan v.
Republican Party, 110 S.Ct. 2729 (1990). [1992 FP 58]
Federal appeals court rules that a
"policymaking" employee (who can be lawfully removed for political
reasons) is one who actually exercises policymaking authority, as opposed to a
job title arbitrarily classified as a policymaking position. Lohorn v. Michal,
913 F.2d 327 (7th Cir. 1990).
An elected official may terminate a key
subordinate who intends to oppose the official in the next election. Zellner v.
Ham, 735 F.Supp. 1052 (M.D. Ga. 1990).
Federal appeals court upholds suit by Highway
Patrol captain who was demoted and transferred because he sought appointment as
Superintendent. $400,000 verdict for "other" injuries should be
reduced to $50,000. Darnell v. Ford, 903 F.2d 556 (8th Cir. 1990).
Indiana suit by state trooper who was ordered to
resign immediately following his election as sheriff is settled. Anderson v.
State of Indiana, Indianapolis Star, Nov. 26, 1990.
Police officer, promoted to detective for his
political support of a new mayor, could not be demoted for his opposition to
the successor mayor. Perez v. Cucci, 725 F.Supp. 209 (D.N.J. 1989).
U.S. Supreme Court enlarges job protection rights
for partisan political affiliations. 1976 decision on political firings now
extends to hirings, recall of furloughed employees, promotions and transfers.
Rutan v. Republican Party of Illinois, 58 L.W. 4872, 110 S.Ct. 2729, (Jun. 21,
1990).
Sheriff's lieutenant was unlawfully retaliated
against because he challenged the sheriff in general election. Appeals court
affirms his right to sue to reputational losses and lateral promotional
opportunities. Thomas v. Carpenter, 881 F.2d 828 (9th Cir. 1989).
Bailiffs are confidential employees of the court,
and may be replaced or discharged by the judge for political reasons. Balogh v.
Charron, 855 F.2d 356 (6th Cir. 1988).
Deputy sheriff not entitled to leave of absence
to run for sheriff. Deeds v. Lindsey, 371 S.E.2d 602 (W. Va. 1988).
President of federal civil service
employees" union did not violate Hatch Act by writing news editorials
critical of the Reagan administration. Blalock v. U.S. Merit Sys. Prot. Bd.,
851 F.2d 1348 (11th Cir. 1988).
Court bailiff could be dismissed for political
reasons; bailiff was "confidential" at-will employee. Balogh v.
Charron, 666 F.Supp. 987 (E.D. Mich. 1987).
$400,000 compensatory and $200,000 punitive
damages awarded two untenured public employees who were terminated in a
"change of administration." Wallen v. Riley, Unrptd., U.S. Dist. Ct.,
summary at 31 ATLA L. Rep. 23, (E.D. Tenn. 1987).
Newly elected sheriff could not fire wife of
ex-sheriff; damage award against sheriff upheld, but not against county.
Soderbeck v. Burnett Co., Wis., 752 F.2d 285 and 821 F.2d 446 (7th Cir. 1987).
Two officers who claimed their demotions were
political, were awarded $133,000 in general and $280,000 in punitive damages;
appellate court orders new trial on evidentiary dispute. Bennis v. Gable, 823
F.2d 723 (3rd Cir. 1987).
Deputy who ran against Sheriff awarded $750,000
for unwarranted discipline and unfavorable publicity; federal appeals court
affirms. Young v. Langley, 793 F.2d 792 (6th Cir. 1986).
Deputy, terminated after unsuccessful candidacy
to defeat sheriff, awarded $81,466 plus legal fees. Perry v. Larson, 794 F.2d
279 (7th Cir. 1986).
Employee has a first amendment right to avoid
partisan politics; pretextual termination of deputy prompts $114,055 award.
Sykes v. McDowell, 786 F.2d 1098 (11th Cir. 1986).
Lieutenant lawfully suspended for actively
seeking nomination for governor without taking a leave of absence. State ex.
rel. Harkleroad v. New Mex. State Police Bd., 705 P.2d 676 (N.M. 1985).
Candidate for city council election cannot block
candidacy by a police or fire employee until after the election. Schloer v.
Moran, 482 N.E.2d 460 (Ind. 1985).
Police officer could not serve as city councilman
for the same jurisdiction; state statute inapplicable. Schloer v. Moran, 475
N.E.2d 1193 (Ind.App. 1985).
Missouri appellate court upholds prohibition on
electioneering but voids "sponsorship" ban. Ferguson Police Officers
Assn. v. City of Ferguson, 670 S.W.2d 921 (Mo.App. 1984).
Another federal appeals court upholds political
contributions by public employees. Reeder v. Kansas City Bd. of Police Cmsnrs.,
733 F.2d 543 (8th Cir. 1984); second opinion at 796 F.2d 1050 (8th Cir. 1986).
City could fire officer who contributed money to
a candidate for public office. Pollard v. Board of Police Cmsnrs., 655 S.W.2d
333 (Mo. 1984).
Federal court orders back pay and $15,000 for
"emotional distress" to deputies who ran against sheriff in primary.
Grysen v. Dykstra, #G83-61, 591 F.Supp. 282, 1984 U.S. Dist. Lexis 15453 (W.D.
Mich. 1984).
Newly elected city councilman automatically
forfeits his city job; cannot take "leave of absence”. Rogers v. Vil. of
Tinley Park, 451 N.E.2d 1324 (Ill.App. 1984).
Federal appeals court upholds ban on political
contributions, solicitations, holding campaign offices, public endorsement of
candidates and ban on employee donations to council candidates. Wachman v. City
of Dallas, 704 F.2d 160, reh. en banc denied, 710 F.2d 837 (5th Cir. 1983).
Alaska Supreme Court upholds ban on city
employees also serving as elected council members. Acevedo v. City of North
Pole, 672 P.2d 130 (Alaska 1983).
Federal court enjoins ban on non-partisan
political activity by fire and police personnel. Arden v. Vil. of Oak Lawn, 537
F.Supp. 181 (N.D. Ill. 1982).
"Resign to run" rule struck down by
Minnesota supreme court; unpaid leave of absence proper remedy. Holin v. State
of Minn., 1981-82 PBC ¶ 37,380 (Minn. 1981).
Pennsylvania court prohibits trooper from seeking
election as county sheriff. Nicodem v. Commonwealth, Penna. State Police, 439
A.2d 1325 (Pa. Cmwlth. 1982).
Retaliation against union activities designed to
influence city election was impermissible; coerced resignation found. Paul v.
Davis, 96 S.Ct. 1155 (1976); Reussow v. Eddington, 483 F.Supp. 739 (D. Colo.
1980).
Law barring certain public officials from seeking
elective officer held unconstitutional by federal court in Texas. Fashing v.
Moore, 489 F.Supp. 471 (5th Cir. 1980).
Police officer must take leave while campaigning
for state senate. Otten v. Schicker, 492 F.Supp. 455 (E.D. Mo. 1980) aff'd. 655
F.2d 142 (8th Cir. 1981).
Deputy who sought election as sheriff could not
be terminated for his refusal to take a leave of absence during his campaign.
Vincent v. Maeras, 447 F.Supp. 775 (S.D. Ill. 1978).
$80,000 verdicts against sheriff reversed;
deputies, fired for political activities, claimed civil rights violations.
McCollum v. Stahl, 579 F.2d 869 (4th Cir. 1978).
Federal Court in Cleveland modifies political
activity rule and upholds "chain of command" regulation. McNea v.
Garey, 434 F.Supp. 95 (N.D. Ohio 1976).
New Jersey Appellate Court rules that police
officer cannot also hold office as city councilman. Dunn v. Froehlich, 155 N.J.
Super. 249, 382 A.2d 686 (1978).
Federal court upholds federal civil service
commission subpoenas served on city employees; Hatch Act violations under
investigation, rights of city employees outlined. In Matter of Alleged
Political Activity, Philadelphia Redevelopment Authority, 443 F.Supp. 1194
(E.D. Pa. 1977).
Candidacy for Office. Boston Police Patrolmen's
Assn., Inc. v. City of Boston, 326 N.E.2d 314 (Mass. 1975).
Federal court enjoins Rhode Island city from
enforcing anti-candidacy provision against firefighters. Magill v. Lyncy, 400
F.Supp. 84 (D.R.I. 1975).
At-will chief could be fired by Mayor; law
requiring Mayor to give reasons does not create an expectation of employment.
Lee v. Walstad, 368 N.W.2d 542 (N.D. 1985).
Detectives demoted for alleged political
retaliation entitled to pursue a federal rights action. Bennis v. Gable, 604
F.Supp. 244 (E.D. Pa. 1984).
Federal Court awards damages against sheriff who
terminated two deputies who supported the opposition candidate. Grysen v.
Dykstra, 591 F.Supp. 282, 1984 U.S. Dist. Lexis 15453 (W.D. Mich. 1984).
Newly elected sheriff could refuse to rehire
deputies of former sheriff, but not cooks, dispatchers or secretaries. Whited
v. Fields, 581 F.Supp. 1444 (W.D. Va. 1984).
Termination of deputies who opposed sheriff
upheld. Green v. White, 580 F.Supp. 41 (E.D. Tenn. 1984).
Sheriff entitled to show deputy would have been
fired regardless of party affiliation, but jury disagreed. Jones v. Dodson, 727
F.2d 1329 (4th Cir. 1984).
"Small department exception" recognized
in suit by former employees who claimed their termination was a result of
support for opposing candidate; disloyalty a disruptive factor. McBee v. Jim
Hogg Co. Texas, 703 F.2d 834 (5th Cir. 1983).
Small county sheriff could terminate deputies who
worked for opposition candidate. Dove v. Fletcher, 574 F.Supp. 600 (W.D. La.
1983).
County could fire captain who supported a
challenger. Court found position was policymaking and confidential. Joyner v.
Lancaster, 553 F.Supp. 809 (M.D.N.C. 1982).
Deputy, fired for wearing shirt promoting the
election of sheriff's opponent, entitled to back pay, punitive damages and
other relief. Cerjan v. Fasula, 539 F.Supp. 1226 (N.D. Ohio 1982).
Employees not reappointed by new office-holder
due to political support for opponent were entitled to reinstatement, back pay.
Hinton v. Vetter, 507 F.Supp. 92 (D.N.H. 1981).
Republican sheriff wrongly demoted sergeant who
had supported democrat; sheriff could discipline him for abusive language to a
superior however. Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981).
Federal court affirms dismissal of employees not
rehired by sheriff; no proof that political considerations dictated employment
decisions. Tanner v. McCall, 625 F.2d 1184 (5th Cir. 1980).
Supreme court further restricts right to select
public employees on basis of party affiliations. Branti v. Finkel, 100 S.Ct.
1287 (1980).
Patronage employees may not be dismissed for
political party affiliations; Supreme Court affirms seventh circuit. Elrod v.
Burns, 96 S.Ct. 2673 (1976), affirming 509 F.2d 1133.
Federal court, in an unreported decision, affirms
the termination of a D.C. police officer who, while off duty, stuffed envelopes
and performed routine clerical duties as a volunteer in the McGovern for
President headquarters. Wren v. Walter Washington, Unrptd. (D.D.C. 1973).
See also: First Amendment
Related; Free Speech; Wrongful
Discharge.