ARTICLES
A DECADE OF BRANTI DECISIONS: A
GOVERNMENT OFFICIAL'S GUIDE TO
PATRONAGE DISMISSALS
SUSAN LORDE MARTIN*
TABLE OF CONTENTS
Introduction ................................................
I. Background of Patronage ..............................
A. History of Patronage Dismissals ...................
B. Political Patronage: An Inveterate System .........
II. Elrod and Branti ........................................
III. Response of Lower Courts .............................
A. The First Circuit .................................
B. The Second Circuit ..............................
C. The Third Circuit ................................
D. The Fourth Circuit ...............................
E. The Fifth Circuit .................................
F. The Sixth Circuit ................................
G. The Seventh Circuit ..............................
H. The Eighth Circuit ...............................
I. The Tenth Circuit ................................
J.
The Eleventh Circuit .............................
K. The District of Columbia Circuit .................
IV. Protected and Unprotected Positions ...................
V. Related Issues .........................................
A. Varying the Facts ..................................
B. Due Process Claims ...............................
C. Qualified Immunity ................................
12
13
13
17
19
23
24
29
31
33
33
35
36
39
41
42
42
43
48
48
50
52
*
Special Assistant Professor of Business Law, Hofstra University School of Business;
J.D., 1987, Hofstra University School of Law; 1963, A.B., Barnard College. The author wishes
to thank Marisa Marinelli for her helpful editorial comments.
THE AMERICAN UNIVERSITY LAW REVIEW
VI.
[Vol. 39:11
D . Rem edies .........................................
Recommendations .....................................
54
56
INTRODUCTION
A commonplace American political scenario is now one which frequently results in lawsuits. The situation arises when a political
party that has been out of local office wins an election. "To the
victor belong the spoils" 1 echoes in the hearts and minds of the winners. Among the spoils a victorious party expects is the power and
right to dismiss government workers affiliated with the opposition
party who are not part of the civil service system, and to appoint the
2
party faithful in their stead.
Today, however, the naive election winner who attempts to make
a clean sweep of political opponents will most likely find himself or
herself the loser in court. 3 In recent years, many lawsuits have been
brought against government employers by former employees claiming that their dismissals were based on political affiliation, and as a
4
consequence, violated their first and fourteenth amendment rights.
The purpose of this Article is thus to suggest the appropriate course
of action for newly elected government officials when they wish to
replace government employees of the political opposition with their
own political supporters.
The first section of this Article outlines the history of politically
motivated dismissals of government employees as an accepted form
of patronage. 5 Second, the Article reviews the constitutional limitations on patronage dismissals that the United States Supreme Court
established in Elrod v. Burns 6 and Branti v. Finkel.7 The third section
of the Article examines the manner in which the lower courts have
interpreted Elrod and Branti throughout the 1980s.8 The fourth sec1. See GALES AND SEATON'S REGISTER OF DEBATES IN CONGRESS (Jan. 1832) (statement of
Sen. Marcy); infra note 44 and accompanying text (discussing origin of expression).
2. See infra notes 19-65 and accompanying text (discussing history of patronage in
United States).
3. See infra notes 281-312 and accompanying text (listing court decisions protecting employees of certain jobs from patronage dismissals).
4. See infra notes 281-345 and accompanying text (surveying circumstances under which
patronage dismissal suits have been brought).
5. "Patronage" is defined as "[tihe power to appoint to office or grant other favors,
especially political ones." WEBSTER'S NEW TWENTIETH CENTURY DICTIONARY OF TIlE ENGLISH
LANGUAGE 1315 (2d ed. 1980); see also M. TOLCHIN & S.TOLCHIN, TO THE VIcGTOR 5-6 (1971)
[hereinafter ToLCHIN] (noting that, in addition to government jobs, patronage consists of vast
range of favors, including government contracts, banking and insurance funds, and specialized treatment by government agencies).
6. 427 U.S. 347 (1976) (plurality opinion).
7. 445 U.S. 507 (1980).
8. See infra notes 103-280 and accompanying text (detailing lower courts' analysis).
1989]
PATRONAGE DISMISSALS
tion 9 lists government positions that have received constitutional
protection,' 0 and those positions that have not been granted protection."I The fifth section discusses the related issues of mixed motive
dismissals, 12 political affiliation versus political activities,' 3 additional claims in patronage dismissal suits, 14 qualified immunity, 15
7
remedies,' 6 and attorney's fees.'
The conclusion suggests a course of action for newly elected officials to follow before dismissing employees perceived to be political
foes. 18 This procedure allows the officials to avoid violating the
constitutional rights of those government employees protected
under Elrod and Branti, while ensuring the appointment of employees who will pursue vigorously the policies that the electorate has
chosen.
I.
BACKGROUND OF PATRONAGE
A.
History of PatronageDismissals
To avoid having unjustified moral judgments 19 influence views of
constitutional decisions, an objective understanding of the role
political patronage has played in American history is essential. Indeed, political patronage is a practice that has tfaditionally suffered
from widespread misunderstanding. 20 At the same time, because
past practice does not determine constitutionality, 2 ' the need to be
9. See infra notes 281-356 and accompanying text.
10. See infra notes 281-312 and accompanying text.
11. See infra notes 313-45 and accompanying text.
12. See infra notes 357-68 and accompanying text.
13. See infra notes 369-82 and accompanying text.
14. See infra notes 383-93 and accompanying text.
15. See infra notes 394-410 and accompanying text.
16. See infra notes 411-16 and accompanying text.
17. See infra notes 417-20 and accompanying text.
18. See infra notes 421-37 and accompanying text.
19. See Note, Recent Decisions: ConstitutionalLaw-Political Patronage-PublicEmployees May
Be DismissedOnly If PartyAffiliation Affects Job PerformanceBranti v. Finkel, 445 U.S. 507 (1980)....
11 CUmm. L. REV. 735, 737 n.13 (1980) [hereinafter Note, Political Patronage] (quoting E. CosTIKYAN, BEHIND CLOSED DOORS 252 (1966) (stating that thought of political patronage conjures up pictures of hordes ofJacksonian politicians descending upon Washington, D.C.; of
president assassinated by disappointed office-seeker; of fat and bloated Boss Tweed in Nast
Cartoons; of incompetents lounging about government offices; and of "political hacks" outrageously rewarded for devious political activity at public expense).
20. Id. at 737.
21. Elrod v. Burns, 427 U.S. 347, 354 (1976). Justice Brennan suggests comparing
Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (holding state laws permitting or requiring
racial segregation in public schools unconstitutional), with Plessy v. Ferguson, 163 U.S. 537,
550 (1896) (upholding state statute requiring racial segregation on public transportation system), as proof that practices once acceptable are not necessarily constitutional. Elrod, 427
U.S. at 354-55; see also R. Schoen, Politics, Patronage and the Constitution, 3 IND. LEGAL F. 35, 99
(1969) (stating that traditional political system has no claim to constitutional protection simply because it is traditional and not necessary incident of democratic government).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
aware of the nature of public employment and the existence of individual rights cannot be underestimated. This is true because the
characteristics of a particular government position may determine
what religious, speech, and associational rights will be conferred
upon the employee, and ultimately, whether the employee will be
22
protected from patronage dismissals.
The first time in American history that a government employee
was dismissed because of a political affiliation probably occurred in
1797, when the Secretary of the Treasury, a Federalist, fired the
23
United States Commissioner of Revenue, an avid Republican.
The Treasury Secretary stated that the reason for the dismissal was
"deliberate misconduct in office." 24 The misconduct, however, con25
sisted of aiding the political opposition.
When Thomas Jefferson assumed the Presidency in 1801, patronage dismissals in national public office were a matter of considerable concern to both Jeffersonian Republicans and the opposition
Federalists for reasons beyond those of personal economic well-being. 2 6 Jeffersonian Republicans believed that they should be given
government jobs because their political party had gained election to
office. 2 7 They believed that this turnover would allow them to direct
public affairs in a manner consistent with the wishes of the people
who had elected them.2 8 The Federalists, however, argued that the
general dismissal of competent and experienced government employees because of their Federalist affiliation would undermine the
29
success of the new republic.
22. Brand v. Finkel, 445 U.S. 507, 517-20 (1980) (limiting patronage dismissals to cases
where party affiliation is appropriate requirement for effective performance of public office).
23.
See C. FISH, THE CIVIL SERVICE AND THE PATRONAGE 19 (1963) (discussing Oliver
Wolcott's dismissal of Tench Coxe).
24. Id.
25. Id.
26.
See R. HOFSTADTER, THE IDEA OF A PARTY SYSTEM 133-35 (1969) (asserting that if
Republicans were to sweep Federalist followers from lesser offices, Federalists would perceive
this act as declaration of partisan warfare because act would suggest that Republicans and
Federalists were incapable of governing in concert, and would prompt Federalist concern that
level of civic competence would be reduced to point at which new government would be
ruined); N. CUNNINGHAM, JR., THE MAKING OF THE AMERICAN PARTY SYSTEM 1789 TO 1809, at
165 (1965) (discussing general views ofJefferson, Republican leaders, and Republican press
on federal patronage under Jefferson).
27. C. FISH, supra note 23, at 29 (noting that most Republicans agreed that Federalist
appointees should be replaced by Republicans whose political principles voters believed to be
better calculated to preserve Constitution and public prosperity).
28. See R. HOFSTADTER, supra note 26, at 158 (noting Jefferson's belief that Republican
majority was entitled to "proportionate share" in direction of public affairs); Letter from
Thomas Jefferson to Connecticut Federalists (July 12, 1801), quoted in N. CUNNINGHAM, supra
note 26, at 171 (stating that displacements are necessary for administration of government in
accordance with opinions of those elected).
29. See R. HOFSTADTER, supra note 26, at 135.
1989]
PATRONAGE DISMISSALS
Cognizant of these competing interests, Jefferson began his Presidency with a policy of dismissing only those Federalists who were
guilty of misconduct.3 0 There also seemed to be general agreement
that members of the opposition party could be dismissed from high
level cabinet and diplomatic positions, 3 -whereas those individuals
filling lower level jobs should not be replaced solely on the ground
of political affiliation. 3 2 These rules, however, did not arise from
any awareness of or concern for the individual rights of the job
33
holder, but rather from a concern for the stability of the nation.
Nevertheless, when adherence to these principles opened few jobs
to Republicans, Jefferson dismissed additional Federalist employees
who were especially politically active.3 4 As a result of these policies,
Jefferson dismissed 109 of 433 presidential appointees during his
eight years in office. 35
While general acceptance of patronage dismissals was thus developing in the national government, the use of such dismissals as a
political tool was becoming similarly entrenched in the states.3 6 For
example, by 1801, political parties in the State of New York were
acting openly on the belief that political affiliation was sufficient reason for employee dismissals, though the parties continued to identify misconduct as the justification for the removals. 37 Evidence also
exists of political removals in Pennsylvania at the turn of the nineteenth century. 38 In 1810, upon taking office in Rhode Island,
Republicans fired Federalist workers.3 9
The Presidency of Andrew Jackson made patronage dismissals an
40
integral and accepted part of the American system of governance.
During his term in office from 1829 to 1837, President Jackson insisted on overseeing personally all patronage appointments. 4 1 Believing that patronage could give the common man an opportunity
to participate in government, Jackson appointed individuals from
30.
Id. at 156; see also C. FISH, supra note 23, at 31.
31.
See R. HOFSTADTER, supra note 26, at 134, 157.
32. Id. at 133.
33. Id. at 133-35.
34. Id. at 156; C. FISH, supra note 23, at 38-39.
35. R. HOFSTADTER, supra note 26, at 157; C. FISH, supra note 23, at 42.
36. See C. FISH, supra note 23, at 79-104 (describing custom in many states of using public offices openly and continuously as ammunition in party warfare, and tracing evolution of
idea of rotation in office, which taken together constituted spoils system).
37. Id. at 90.
38. See id. at 93 (describing contents of letter from newly elected governor to Thomas
Jefferson in 1801 indicating that state civil offices were considered ammunition for political
warfare).
39. Id. at 95.
40. TOLCHIN, supra note 5, at 323; C. FISH, supra note 23, at 105-33.
41. TOLCHIN, supra note 5, at 324.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
outside the upper classes to his Cabinet. 42 Given Jackson's frequent
and notorious use of political patronage, his administration, not surprisingly, spent a substantial amount of time dealing with patronage
controversies. 4 3 Indeed, the Jackson administration exemplified the
statement of William Learned Marcy, then governor of New York,
summarizing the moral code of American politics at the time ofJackson's inauguration in 1829: "To the victor belong the spoils of the
44
enemy."
Furthermore, when Abraham Lincoln was elected President in
1860, he swept 1,195 of 1,520 presidential appointees from office,
installing his supporters in their places. 4 5 Historians agree that Lin46
coln's use of patronage was responsible for sustaining the Union.
Lincoln's control of governmentjobs reflects an important historical
justification for patronage, namely, that democratic governments
cannot exist without a political party system,4 7 and that system re48
quires patronage to maintain loyalty and strength.
Thus, patronage in government employment was a basic element
in the development of American democratic government. The players in this history viewed patronage as an acceptable, indeed as a
necessary, feature of democratic governance.
42. Id.
43. Id. at 325.
44. See TOLCHIN, supra note 5, at 323; see also C. FISH, supra note 23, at 132-33 (noting
that Marcy phrase summed up general sentiments of press at time); GALES & SEATON'S REGISTER OF DEBATES IN CONGRESS (Jan. 1832) (recording that in 1832 Marcy used expression in
speech before United States Senate).
45. ToLCHIN, supra note 5, at 326. The statistics have also been reported as 1457 removals of 1639 positions. C. FISH, supra note 23, at 170.
46. TOLCHIN, supra note 5, at 326; see also C. FISH, supra note 23, at 169-70 (noting that in
light of divisive nature of Civil War, patronage appointments were important to preservation
of Union).
47. See R. HOFSTADTER, supra note 26, at 224-26, 258, 263-65 (describing views of prominent political leaders and theorists that political parties are necessary to uphold and preserve
elective government); see also D. PRICE, BRINGING BACK THE PARTIES 114-16 (1984) (stating
that political parties provide check against unpopular, illegitimate uses of power by organizing minority-party forces in legislature and contesting elections, and that parties provide
means of pulling organs of government together for achievement of positive ends). But see A.
RANNEY, CURING THE MISCHIEFS OF FACTION 30-37 (1975) (noting political leaders who con-
demned political parties because they believed that: 1) cooperation among all citizens, rather
than competition among parties, is only basis for promoting public welfare; 2) public deliberations and civic decisions should be conducted openly rather than secretly; and 3) no "selfselected cabal" should intervene in people's selections of public officials).
48. See R. HOFSTADTER, supra note 26, at 225-26 (describing party as means ofccnenting
civil loyalty); see also D. PRICE, supra note 47, at 109-16 (asserting that political parties are
mechanism for democratic control, accountability, responsiveness, governance, and problemsolving). But see Schoen, supra note 21, at 99 (asserting that democratic government is assured
by right to vote, not by party system); Sorauf, The Silent Revolution in Patronage,20 PUB. ADMIN.
REV. 28, 30 (1960) (noting that although political parties are deeply entrenched in American
political process, patronage is no longer necessary for political parties, and also remarking
that patronage is declining and has fallen into public disfavor).
1989]
PATRONAGE DISMISSALS
B.
PoliticalPatronage: An Inveterate System
Against this historical background, patronage dismissals have become ingrained in the American political system. For instance, in
his dissent in Elrod v. Burns,4 9 Justice Powell discussed the important
contributions that patronage firing and hiring make to American democracy. 50 Justice Powell stressed that candidates, particularly at
the local level, would not have the human or financial resources to
disseminate political information to the voters if they could not
promise supporters patronage benefits in the event of a victory.5 1
Similarly, Justice Powell noted that without patronage, political parties would find it difficult 'to survive because they could not attract
workers, and the parties provide stability, permanence, accountability, and responsiveness in our government. 52
In his dissent in Branti v. Finkel,5 3 Justice Powell reiterated these
beliefs and further explained that patronage dismissals and appointments promote important government interests. 54 Specifically, he
noted that the desires of the voting public are carried out when
those they elect appoint like-minded individuals to government positions. 5 5 Little incentive exists for employees of the opposition to
implement vigorously the policies of a newly elected official. 56 In
addition, Justice Powell asserted that the voters not only expect
those they elect to appoint members of the same party, but also
delegate such authority to elected officials. 5 7 Indeed, to refrain
from appointing members of the same party subverts the wishes of
58
the electorate.
Within the inveterate system of patronage dismissals, consideration must also be given to the individual rights of the government
appointee. Early case law held that government workers possessed
only those rights allowed by an employer.5 9 This narrow view of
rights was based on two theories: right-privilege, which applied to
all government employees; and waiver, which applied to patronage
appointees. 60 The right-privilege doctrine embodied the judicial
49. 427 U.S. 347 (1976) (plurality opinion).
50. Elrod v. Bums, 427 U.S. 347, 382-87 (1976) (plurality opinion) (Powell, J.,
dissenting).
51. Id. at 384-85 (Powell, J., dissenting).
52. Id. at 385 (Powell, J., dissenting).
53. 445 U.S. 507 (1980).
54. Branti v. Finkel, 445 U.S. 507, 527-34 (1980) (Powell, J., dissenting).
55. Id. at 529 (Powell, J., dissenting).
56. Id. at 530 (Powell, J., dissenting).
57. Id. at 533 (Powell, J., dissenting).
58. Id.
59. R. DWOSKIN, RIGHTS OF THE PUBLIC EMPLOYEE 16 (1978).
60. For a discussion of the right-privilege and waiver theories, as well as reference to
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
notion that government employment was a state granted privilege
rather than a right owed to the individual; employment, therefore,
could be withdrawn or conditioned as the public employer desired. 61 The waiver theory assumed that a government worker, who
obtained his job through political patronage, relinquished the right
62
to assert constitutional protection from a patronage dismissal.
In 1952 the Supreme Court first recognized that individuals retain
certain constitutional rights even though they are employed by the
government. 63 Over the next twenty years, the Court gradually expanded the first amendment protection to which public employees
were entitled.6 4 Viewed in the context of the Court's doctrinal progression, Elrod seems but one more step in the expansion of relicases supporting both, see Note, PoliticalPatronage,supra note 19, at 735, 739-44 & nn.3 1-47 &
56-60 (discussing underlying rationale and judicial application of right-privilege and waiver
theories); Casenote, ConstitutionalLaw- Freedom of Association, 58J. URn. L. 291, 293 & nn.2930 (1981) [hereinafter Casenote, Freedom of Association] (noting that early challenges to patronage dismissals were defeated on right-privilege and waiver theories); Note, Constitutional
Limitations on Patronage Practice: Branti v. Finkel, 42 LA. L. REv. 310, 311 (1981) (describing
distinction between right-privilege and waiver theories).
61. R. DwoSKIN, supra note 59, at 20. It was Oliver Wendell Holmes' opinion in McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 518 (1892) (holding that city may
impose reasonable conditions upon holding offices within its control), which gave the rightprivilege doctrine its secure and long existing place in public employment jurisprudence. Id.
at 20-21. The doctrine was sanctioned in Bailey v. Richardson, 182 F.2d 46, 59 (D.C. Cir.
1950), aff'd mem., 341 U.S. 918 (1951) (holding that President and Congress, rather than Constitution, give government employees protection they may have from dismissal for political
reasons).
62. See Elrod v. Burns, 427 U.S. 347, 380 (1976) (plurality opinion) (Powell, J., dissenting) (referring to American Fed'n of State Employees v. Shapp, 443 Pa. 527, 528, 280 A.2d
375, 378 (1971) (holding that state employees who obtained jobs through party patronage,
and who were fired solely on political grounds, had no constitutionally protected right to their
jobs) and Nunnery v. Barber, 503 F.2d 1349, 1359-60 (4th Cir. 1974) (holding that employee
who received job through political affiliation acquired no constitutional right to relief from
dismissal), cert. denied, 420 U.S. 1005 (1970)); Note, PoliticalPatronage,supra note 19, at 743-44
(discussing rationale underlying waiver doctrine). But see Branti v. Finkel, 445 U.S. 507, 512
n.6 (1980) (stating that after Elrod, lack of reasonable expectation ofcontinued employment is
insufficient to justify dismissal based solely on employee's political beliefs).
63. See Wieman v. Updegraff, 344 U.S. 183, 191-92 (1952) (holding that state statute
requiring broad loyalty oath as condition of employment violated public employee's first and
fourteenth amendment rights of free association).
64. See, e.g., Perry v. Sindermann, 408 U.S. 593, 597 (1972) (holding that even though
individual has no right to benefit of public employment, government may not deny that benefit by infringing on constitutional protections); Pickering v. Board of Educ., 391 U.S. 563, 574
(1968) (holding that public school teachers may not be dismissed for exerting their first
amendment right to comment on matters of public interest); Keyishian v. Board of Regents,
385 U.S. 589, 603-04 (1967) (holding that state statute requiring public employee to sign
certificate denying Communist affiliation abridged constitutional right of association); Baggett
v. Bullitt, 377 U.S. 360, 373-74 (1964) (holding that broad loyalty bath restricted public
school teachers' freedom of speech); Cafeteria and Restaurant Workers Union Local 473 v.
McElroy, 367 U.S. 886, 898 (1961) (stating that government may not deny employment because of past affiliation with particular political party); Torcaso v. Watkins, 367 U.S. 488, 496
(1961) (holding that requiring public official to make declaration of belief in existence of God
violated first amendment religious guarantees); Shelton v. Tucker, 364 U.S. 479, 485-86
(1960) (holding that right of association was impermissibly constrained when state required
public school teachers to disclose past organizational memberships).
1989]
PATRONAGE DISMISSALS
gious, speech, and associational rights that government workers
enjoy.
II.
ELROD AND BRANTI
The Supreme Court's 1976 decision in Elrod v. Burns6 5 was presaged by commentators who criticized the civic utility of the patronage system -generally and predicted its demise. 66 Others
specifically challenged the constitutionality of patronage
67
dismissals.
In Elrod, Republican plaintiffs brought suit against Richard J.
Elrod, Sheriff of Cook County and a Democrat, Chicago Mayor
Richard J. Daley, and local Democratic organizations alleging, inter
alia, that their dismissal from their government jobs based solely on
their political affiliation violated the first and fourteenth amendments. 68 The plaintiffs had been employees of the Cook County,
Illinois Sheriff's Office. 6 9 When Elrod replaced the Republican
sheriff, he followed the past practice of the Sheriff's Office and dismissed the plaintiffs "solely" because they were members of a differ70
ent political party.
In this case, the Supreme Court concluded, with Justice Brennan
writing for the plurality, that patronage dismissals unconstitutionally infringe on the first amendment freedoms of political belief and
association. 71 The Court, however, carved a single exception for individuals in policymaking positions; 72 dismissal of these policymaking officials serves the vital government interest of facilitating the
implementation of a new administration's policies as mandated by
65. 427 U.S. 347 (1976) (plurality opinion).
66. Sorauf, supra note 48, at 30 (noting that patronage dismissals often cause public outrage and that patronage system is disappearing as result of changes in political parties and
politics in general).
67. See Schoen, supra note 21, at 83-89 (concluding that political patronage in public
employment, except for limited category of policymaking appointees, is unconstitutional, and
foreshadowing Justice Brennan's discussion and rejection of several proposed "compelling
government interest[s]" for patronage), cited in Elrod, 427 U.S. at 355 n.9.
68. Elrod v. Bums, 427 U.S. 347, 349-50 (1976) (plurality opinion). In pertinent part,
the first amendment provides that: "Congress shall make no law ... abridging the freedom of
speech ... or the right of the people peaceably to assemble. "U.S. CONST. amend. I. The
fourteenth amendment provides in part that the "State [may not] deprive any person of life,
liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1.
69. Elrod, 427 U.S. at 350 (noting that plaintiffs were non-civil-service employees, and
thus, not protected by statute against arbitrary discharge). Specifically, plaintiffs were John
Bums, Chief Deputy of the Process Division; Frank Vargas, bailiff and security guard at the
Juvenile Court of Cook County; Fred L. Buckley, a process server; and Joseph Dennard, an
employee in the Sheriff's Office. Id. at 350:51.
70. Id. at 351 (noting that while other plaintiffs had already been discharged, Buckley
was in "imminent danger of being discharged solely for the same reasons").
71. Id. at 373.
72. Id. at 367.
20
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
the voters. 7 3 In addition to including policymaking employees, the
exception in Elrod has been read by commentators7 4 and the Court
itself7 5 to include confidential employees, as mentioned in Justice
76
Stewart's concurrence.
Justice Brennan's categorical approach"7 in the plurality opinion
provided some guidance to lower courts confronted with challenges
of patronage dismissals, as well as to newly elected officials faced
with decisions concerning which employees to retain and which to
replace. 78 Although he acknowledged that no bright-line test separated policymakers from non-policymakers, 7 9 Justice Brennan noted
three characteristics which generally distinguish those in policymaking positions.8 0 First, whereas non-policymakers usually have specific and limited responsibility, policymakers often have
"responsibilities that are not well defined or are of broad scope." 8'
Second, one who acts in an advisory capacity may be considered a
policymaker.8 2 Third, an individual whose position involves planning "for the implementation of broad goals" may also be considered a policymaker.8 3 With regard to the definition of a confidential
employee, Justice Stewart provided no additional guidance in his
84
concurrence.
In 1980, the Supreme Court in Branti v. Finkel"5 again faced the
task of evaluating the constitutionality of patronage dismissals. In
73. See id. (stating that patronage dismissals of policymakers ensures that representative
government will not be undercut by tactics obstructing policies of new administration-policies presumably sanctioned by electorate).
74. See Note, Branti v. Finkel: Spoiling the Spoils System, 10 CAP. U. L. REV. 871, 878 (1981)
(noting that Justice Stewart's concurrence, making non-policymaking, non-confidential distinction supplanted plurality analysis); Note, Politics and the Non-Civil Service Public Employee: A
CategoricalApproachto First Amendment Protection, 85 COLUM. L. REV. 558, 561-62 (1985) (observing that after Elrod, public employees cannot be fired solely for political affiliation); Note,
PatronagePolitics: Democracy's Antidote to Enforced Neutrality in Civil Service-Brantiv. Finkel, 6 U.
DAYTON L. REV. 231, 241 (1981); Note, ConstitutionalLimitations on PatronagePractice: Branti v.
Finkel, 42 LA. L. REV. 310, 313 n.21 (1981) (discussing Justice Blackmun's andJustice Stewart's concurrence).
75. Branti v. Finkel, 445 U.S. 507, 517-18 (1980).
76. Elrod, 427 U.S. at 375 (Stewart,J., concurring) (framing plurality's holding as prohibiting discharge of non-policymaking, non-confidential government employee satisfactorily
performing job).
77. See id. at 367-68 (limiting permissible patronage dismissals to policymaking
positions).
78. See Henkin, Infallibility Under Law: ConstitutionalBalancing, 78 COLUM. L. REv. 1022,
1048 (1978) (noting that use of categorical principles in constitutional cases, rather than ad
hoc balancing approach, increases consistency in application of law).
79. Elrod, 427 U.S. at 367.
80. Id. at 367-68.
81. Id. at 368.
82. Id.
83. Id.
84. Id. at 374-75 (Stewart, J., concurring).
85. 445 U.S. 507 (1980).
1989]
PATRONAGE DISMISSALS
Branti, two Republican assistant public defenders brought suit after
the newly elected Democratic public defender dismissed them.8 6
Writing for the majority, Justice Stevens reaffirmed the Elrod holding that patronage dismissals violate the first amendment protection
of private political beliefs.8 7 The Branti opinion also confirmed the
Court's recognition that exceptions may exist which allow patronage
dismissals based on an overriding government interest.8 8 Indeed,
Branti went one step further than Elrod, stating unequivocally that
patronage dismissals are acceptable for some jobs because "First
Amendment rights may be required to yield to the State's vital interest in maintaining governmental effectiveness and efficiency." 8 9
In contrast, the Elrod opinion emphatically stated that effectiveness and efficiency in government do not constitute interests that
justify patronage dismissals. 90 According to Elrod, the only government interest sufficiently compelling to be a justification for patronage dismissals is the interest of representative government in
preventing obstruction to the implementation of policies the electorate has chosen.9 1 After Branti, however, it is possible that these two
distinct interests-effectiveness and efficiency-may be used in bolstering a government/defendant's position that a particular employee may be fired because the employee comes within the Elrod/
Branti exception. 92 Another significant difference between Elrod and
Branti is the explicit clarification in the latter that constitutional pro86. Branti v. Finkel, 445 U.S. 507, 508 (1980). The plaintiffs, Finkel and Tabakman, held
positions as assistant public defenders in Rockland County, New York. Id. When the Rockland County Legislature appointed Branti, a Democrat, as Rockland County Public Defender,
he issued termination notices to six of the nine assistants in his office. Id. at 509. The plaintiffs were among the six receiving such a notice. Id. at 509-10. Evidence indicated that the
only reason for the plaintiffs' dismissals was that they were not recommended by the Democratic caucus because they were not Democrats. Id. at 509 n.5.
87. Id. at 516-17.
88. See id. at 517 (stating that party affiliation may be acceptable requirement for some
types of government employment); see also Elrod, 427 U.S. at 367 (finding that individuals
holding policymaking positions may be dismissed based on party affiliation).
89. Branti, 445 U.S. at 517 (citing Elrod, 427 U.S. at 366). But see Elrod, 427 U.S. at 365
(stating that effectiveness and efficiency do not sustain patronage dismissals because "it is
doubtful that the mere difference of political persuasion motivates poor performance").
90. Elrod, 427 U.S. at 364-66. In other cases, the Supreme Court indicated that efficiency
in job performance is a legitimate government interest to be weighed against competing constitutional rights. See Connick v. Myers, 461 U.S. 138, 150-51, 154 (1983) (holding that employee's questionnaire to co-workers represented limited first amendment interest which did
not require government employer to tolerate disruptions in office caused by questionnaires);
see also Pickering v. Board of Educ., 391 U.S. 563, 572-73 (1968) (holding that teacher's interest in making public comment outweighs state interest in promoting efficiency of employee's
public services); Exparte Curtis, 106 U.S. 371, 375 (1882) (upholding statute prohibiting certain federal employees from soliciting contributions from other employees for political
purposes).
91. Elrod, 427 U.S. at 367.
92. See Branti, 445 U.S. at 517.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
tection against dismissals exists for mere political affiliation, and not
3
simply when coercion to change political allegiance exists.P
The primary effect of Branti, then, is to change the categorical exceptions established in Elrod.94 No longer are the descriptions
"policymaker" or "confidant" determinative in deciding whether an
employee may constitutionally be dismissed because of political affiliation. 9 5 After Branti, the test is whether party affiliation is an appropriate requirement for effective job performance. 96 Jobs
requiring party affiliation for effective job performance may or may
not be of the policymaking or confidential variety. 9 7 Thus, although
the labels "policymaker" and "confidant" may be relevant to the in98
quiry, they do not mandate a conclusion.
Justice Stevens acknowledged that it would not always be easy to
ascertain whether a particular government job falls within the category the Court established as determinative. 99 In dissent, Justice
Powell declared the Court's standard to be "vague" and "certain to
create vast uncertainty."' 10 0 Moreover, commentators readily
agreed that the Elrod/Brantidecisions were bound to create confusion for public officials making personnel changes and for lower
courts faced with former employees challenging those changes.' 0 '
Finally, the number of cases brought and won by former public em93. Branti, 445 U.S. at 517 (stating that "there is no requirement that dismissed employees prove that they, or other employees, have been coerced into changing, either actually or
ostensibly, their political allegiance").
94. Id. at 518.
95. Id.
96. Id. (remarking that "the ultimate inquiry is not whether the label 'policymaker' or
confidant' fits a particular position; rather the question is whether the hiring authority can
demonstrate that party affiliation is an appropriate requirement for the effective performance
of the public office involved").
97. Id. The Court gave the following examples: 1) a state election law judge may be
neither policymaking nor confidential employee, yet political affiliation would be an appropriate requirement to carry out his or her responsibilities, and 2) a governor's speechwriting
assistant may be required to share the governor's political beliefs. Id. The Court also noted
that party affiliation is not necessarily relevant to every policymaking or confidential position,
giving the example that a state university football coach sets policy, but political allegiances
are irrelevant to job performance. Id.
98. Id. After declaring that "policymaker" and "confidential" are no longer the applicable standard, the Court proceeded to analyze the plaintiff's job position-assistant public
defender-as being neither policymaking nor confidential in nature, and thus, not requiring a
particular party affiliation for effective job performance. Id. at 519-20.
99. Id. at 518.
100. Id. at 524 (Powell, J., dissenting).
101. See Note, Branti v. Finkel: Spoiling the Spoils System, supra note 74, at 872 (noting that
impact of Branti will only be fully resolved by continued litigation); Note, Does the First Amendment Incorporate a National Civil Service System?, 14 IND. L. REv. 985, 985 (1981) (stating that
Elrod/Brantistandard is difficult to apply, resulting in lower court confusion and inconsistency
in determining extent of protected class of public employees); Casenote, Freedom of Association,
supra note 60, at 306 (believing that Court invites further litigation as result of Branti'sfailure
to precisely define extent of prohibition on patronage practices, nature and degree of governmental interest required, and parameters of partisan political interest); Note, Constitutional
1989]
PATRONAGE DISMISSALS
ployees charging that their first and fourteenth amendment rights of
association were violated when they were fired because of their
political affiliation confirms that government employers do not understand their responsibilities under Elrod and Branti.10 2
III.
RESPONSE OF LOWER COURTS
Lower court interpretation of Elrod and Branti provides assistance
in determining the extent to which first amendment protection exists for public employees faced with patronage dismissals.10 3 Lower
court decisions also determine whether administrative officials can
expect to receive qualified immunity if a dismissed employee sues,
claiming a violation of constitutional rights.1 0 4 In fact, lower court
treatment of workers at opposite ends of the employment spectrum
has been straightforward and predictable. For example, a cleaning
woman in the governor's executive mansion clearly receives Elrod/
Brani protection. 10 5 At the other end of the spectrum, lawyersother than assistant public defenders 0 6 -generally have not received protection from patronage dismissals. 0 7 Difficulties arise,
Limitations, supra note 60, at 321 (noting that Court's differing analyses in Elrod and Branti
leave uncertain what other forms of patronage will also receive protection).
102. See infra notes 281-312 and accompanying text (citing court decisions holding that
employees of certain jobs are constitutionally protected from patronage dismissals).
103. See infra notes 111-354 and accompanying text (describing generally treatment of
circuit courts regarding appropriate standard for determining whether employee is constitutionally protected from patronage dismissal).
104. See infra notes 397-401 and accompanying text (discussing Supreme Court decisions
addressing circumstances under which government employees may be entitled to qualified
immunity).
105. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324 (1st Cir. 1987) (holding
that cleaning woman, waiters, and domestic services supervisor employed at Governor's mansion were not "confidential public employees" and thus were protected against politically
motivated discharge).
106. See supra notes 85-89 and accompanying text (discussing Branti decision).
107. See, e.g., Bauer v. Bosley, 802 F.2d 1058, 1062 (8th Cir. 1986) (holding that position
of Staff Legal Assistant in Office of Clerk of Circuit Court is excepted from Elrod/Brantirule as
matter of law), cert. denied, 481 U.S. 1038 (1987); Brown v. Trench, 787 F.2d 167, 169-70 (3d
Cir. 1986) (relying on court's prior decisions allowing political affiliation as ground for dismissals of city solicitor and assistant district attorney to uphold politically motivated dismissal of
county's director of public information), aft'd, 829 F.2d 30 (3d Cir. 1987); Livas v. Petka, 711
F.2d 798, 800-01 (7th Cir. 1983) (upholding politically motivated dismissal of public prosecutor); Ness v. Marshall, 660 F.2d 517, 522 (3d Cir. 1981) (allowing politically motivated dismissal of city solicitor and assistant solicitor); Finkelstein v. Barthelmy, 678 F. Supp. 1255, 1265
(E.D. La. 1988) (upholding politically motivated dismissal of assistant city attorney); Mummau
v. Ranck, 531 F. Supp. 402, 404-05 (E.D. Pa.) (upholding politically motivated dismissal of
assistant district attorney), af'd per curiam, 687 F.2d 9, 10 (3d Cir. 1982); Bavoso v. Harding,
507 F. Supp. 313, 316 (S.D.N.Y. 1980) (holding that city council members' consideration of
political party affiliation of mayor's nominee for corporation counsel was permissible); Montaquila v. St. Cyr, 433 A.2d 206, 210 (R.I. 1981) (holding that party affiliation is appropriate
selection requirement for solicitor and assistant solicitor). But see Tavano v. County of Niagara, 621 F. Supp. 345, 350 (W.D.N.Y. 1985) (ruling that consideration of assistant county
attorney's political affiliation was irrelevant to effective discharge of duties in family court),
aff'd, 800 F.2d 1128, 1128 (2d Cir. 1986); Layden v. Costello, 517 F. Supp. 860, 862-63
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
however, because most jobs fall somewhere in the middle of this
continuum. As a result, lower courts have attempted to create objective criteria by which to determine where the continuum's dividing line occurs and on which side a specific job lies. 0 8
Circuit courts have written extensive opinions on patronage dismissal cases in reliance on the Elrod/Brantistandard. 10 9 The threshold problem in these decisions is which standard to use in
determining whether the plaintiff/employee is constitutionally protected from being fired because of political affiliation, or, from the
opposite perspective, whether the defendant/official/government
was within its rights in dismissing the employee because the employee came within the Elrod/Branti exception. 10
A.
The First Circuit
The Court of Appeals for the First Circuit has been presented
with a significant number of cases involving patronage.' 1 1 Many of
these cases arose out of the change in administration following the
1984 gubernatorial election in Puerto Rico. 1 2 Presumably in response to the large volume of cases pending at this time,11 3 the First
Circuit, sitting en banc, heard Jimenez Fuentes v. Torres Gaztambide,"14
(N.D.N.Y. 1981) (holding party affiliation is impermissible basis on which to dismiss incumbent social services department attorney).
108. See infra notes 116-35, 154, 177, 220-24 and accompanying text (citing cases in which
circuit courts have attempted to apply principled decision-making to problem of determining
which jobs should receive Elrod/Brantiprotection).
109. See infra notes 115-37, 148-70, 176-86, 215-41 and accompanying text (discussing
cases based on Supreme Court's reasoning in Elrod and Brant?).
110. See infra notes 115-280 and accompanying text (reviewing circuit court rationales for
protecting or declining to protect various employees from patronage dismissals).
111. See, e.g., McGurrin Ehrhard v. Connolly, 867 F.2d 92 (1st Cir. 1989) (examining political discharge case in Massachusetts for director of Secretary of State's western office); Cordero v. DeJesus-Mendez, 867 F.2d 1 (1st Cir. 1989) (discussing patronage issue for municipal
employees in Puerto Rico); Figueroa v. Aponte-Roque, 864 F.2d 947 (1st Cir. 1989) (explaining application of patronage issue to janitor for Puerto Rico Department of Education); Rodriguez-Burgos v. Electric Energy Auth., 853 F.2d 31 (1st Cir. 1988) (following Branti in
context of replacement of public utility officials); Goyco de Maldonado v. Rivera, 849 F.2d
683 (1 st Cir. 1988) (addressing claims of improper dismissal by former first vice-president of
Puerto Rico Housing Bank and Finance Authority); Hernandez-Tirado v. Artau, 835 F.2d 377
(1st Cir. 1987) (ruling that Puerto Rican directors of vocational horse racing school did not
have position that concerned partisan interests); Nunez v. Izquierdo-Mora, 834 F,2d 19 (1st
Cir. 1987) (holding that qualified immunity protected public officials from former employee
challenge of dismissal).
112. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir. 1987) (stating that
steady stream of cases involving alleged discharge for political reasons had arisen following
1984 Puerto Rican gubernatorial election).
113. Seesupra note 111.
114. 807 F.2d 236 (1st Cir. 1986) (en banc), cert. denied, 481 U.S. 1014 (1987). Jimenez
Fuentes involved the demotion of two regional directors of the Puerto Rico Urban Development and Housing Corporation. The court held that the position of regional director is one
for which party affiliation is an appropriate requirement because it involves policy implementation as well as confidential aspects. Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236,
1989]
PATRONAGE DISMISSALS
and attempted to reduce Elrod/Branti to an easily applied test."15
After summarizing Elrod and Branti, as well as reviewing relevant
lower court cases throughout the country, the First Circuit established a two-step inquiry.' 16 The first step in this inquiry requires a
determination of whether the position from which the plaintiff/employee was removed involves "decisionmaking on issues where
there is room for political disagreement on goals or their implementation." 11 7 The second step of the inquiry examines the particular
responsibilities of the position in order to determine whether the
position is one of a policymaker, "18 one where the appointee is privy
to confidential information," 19 one where the appointee is a communicator, 20 or some other type of position whose function is such
that party affiliation is an equally appropriate requirement.' 2 ' The
court emphasized that the focus of the inquiry should be on the inherent powers of the position itself, rather than on the functions
22
performed by the individual holding the particular position.
In applying the first prong of this two-part test, the First Circuit
has made clear that if the position at issue involves services that the
237, 246 (1st Cir. 1986) (en banc), cert. denied, 481 U.S. 1014 (1987). The court apparently
assumed that the issue of demotion for political reasons was indistinguishable from dismissal
for political reasons for the purpose of assessing constitutional protection. See id. at 238.
115. See infra notes 116-22 and accompanying text (delineating analysis of court's twoprong test).
116. Jimenez Fuentes, 807 F.2d at 239-42 (discussing precedent and cases, and enunciating
two-step test for determining political nature of position); see also Roman Melendez v. Inclan,
826 F.2d 130, 132-33 (1st Cir. 1987) (explaining two-prong test delineated inJimenez Fuentes);
Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525, 527-28 (Ist Cir. 1987) (following
Jimenez Fuentes test); Mendez Palou v. Rohena-Betancourt, 813 F.2d 1255, 1257-58 (Ist Cir.
1987) (describing court's attempt inJimenez Fuentes to find workable test).
117. Jimenez Fuentes, 807 F.2d at 241-42. This language was originally used by Judge
Swygert in Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981) (holding that juror could
conclude senior citizen coordinator would qualify under test) and later quoted by Judge
Weinstein in Ecker v. Cohalan, 542 F. Supp. 896, 901 (E.D.N.Y. 1982) (citing language as one
formulation of policymaker/non-policymaker distinction).
118. Jiminez Fuentes, 807 F.2d at 242; see supra note 73 and accompanying text (discussing
policymaker exception created in Elrod).
119. Jiminez Fuentes, 807 F.2d at 242; see supra note 76 and accompanying text (discussing
ramifications of confidential employee status on employee's removal). This exception arises
from Justice Stewart's concurrence in Elrod. Elrod v. Burns, 427 U.S. 347, 375 (Stewart, J.,
concurring).
120. Jiminez Fuentes, 807 F.2d at 242; see supra notes 94-98 and accompanying text (discussing employment positions where political affiliation is appropriate requirement for effective
job performance).
121. Jimenez Fuentes, 807 F.2d at 242.
122. Id. Other circuit courts have also espoused this position. See, e.g., Dickeson v.
Quarberg, 844 F.2d 1435, 1442 (10th Cir. 1988) (noting focus on inherent powers of office of
sheriff and jailer); Bauer v. Bosley, 802 F.2d 1058, 1064 (8th Cir. 1986) (describing inherent
powers of attorney-client relationship), cert. denied, 481 U.S. 1038 (1987); Tomczak v. City of
Chicago, 765 F.2d 633, 641 (7th Cir.) (explaining critical political role in providing city police,
fire, and, in this case, water services), cert. denied, 474 U.S. 946 (1985); Ness v. Marshall, 660
F.2d 517, 521-22 (3d Cir. 198 1) (focusing on inherent power of mayor over city solicitor).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
electorate considers important, such as water,1 23 housing,12 4 or education, 125 and political parties differ in their approaches to supplying these services, 12 6 then the first prong is satisfied.' 2 7 Indeed,
subsequent toJimenez Fuentes the court held that positions involving
matters devoid of partisan concerns, such as the "proper flow of
work" in an agency or the preferred accounting method or computer system, would not satisfy the first prong. 128 Therefore, employees in such lositions would be constitutionally protected from a
29
political dismissal.1
In applying the second prong of the test, the First Circuit has
stated that the factors to be considered include relative pay, technical competence, power to control others, authority to speak in the
name of policymakers, public perception, influence on programs,
contact with elected officials, responsiveness to partisan politics and
political leaders, 30 and whether the responsibilities of the position
are not well-defined or are of broad scope. 13 The court inJitnenez
Fuentes did not, however, specifically consider each of these factors.
The court examined the job description of the position at issue, and
classified the duties listed into five groups: policymaking functions,
representative functions, spokesperson functions, personnel duties,
and ministerial duties.' 3 2 When fifteen of the twenty duties fell into
the first four categories, the court concluded that the position was
one which fell within the Elrod/Brantiexception.' 3 3 The court noted
that final decision-making authority is not a requirement for a posi123. fimenez Fuentes, 807 F.2d at 243 (citing Tomczak, 765 F.2d at 641, which held that First
Deputy Commissioner of Department of Water was not protected from patronage dismissal
because providing water was partisan concern).
124. See Collasco Rivera v. Torres Gaztambide, 812 F.2d 258 (Ist Cir. 1987) (ruling that
regional director of Puerto Rican Housing Administration held position for which party affiliation was appropriate object of consideration); supra note 114 and accompanying text (discussingJimenez Fuentes).
125. See Roman Melendez v. Inclan, 826 F.2d 130, 133 (Ist Cir. 1987) (upholding dismissal of regional director of Puerto Rican General Services Administration on basis of political
affiliation because of "undoubtedly partisan issue of education in public schools").
126. Seefiminez Fuentes, 807 F.2d at 242-43 (discussing political disagreements over provision of services).
127. Id. at 243.
128. See Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (Ist Cir. 1987) (citing
DeChouders v. Government Development Bank, 801 F.2d 5, 10 (1st Cir. 1986) (en banc) and
stating that if employee is responsible solely for duties measured by technical or professional
criteria, employee is constitutionally protected from political dismissal).
129. Id. at 1257 (stating that, after Elrod, vast majority of public employees enjoy constitutional protection).
130. Jimenez Fuentes, 807 F.2d at 242 (quoting Ecker v. Cohalan, 542 F. Supp. 896, 901
(E.D.N.Y. 1982)).
131. Id. at 242 (quoting Elrod v. Burns, 427 U.S. 347, 368 (1976)).
132. Id. at 244.
133. Id. at 244-46.
1989]
PATRONAGE DISMISSALS
27
tion to come within the exception. 3 4 The court also stressed that,
though not determinative, it is significant that the local personnel
system treats the positions in question as policymaking. 135
The First Circuit continues to use its Jimenez Fuentes two-part
test, 136 but recognizes the difficulty in predicting the final outcome
of any particular political dismissal.' 3 7 Because of this difficulty, the
Elrod/Brantistatus of any particular position will not be clear until a
body of law containing decisions about many specific positions develops.' 38 Decisions granting qualified immunity139 to government
officials who carried out politically motivated dismissals demonstrate the court's adherence to this view.' 40 These decisions, however, must be examined in the proper time context because, for
example, a decision rendered in the late 1980s usually concerned a
dismissal that occurred in the mid 1980S41-that is, a dismissal
made less than five years after Branti. Theoretically, then, government employers' difficulties in applying Elrod/Branti should be re134. Id. at 245.
135. See id. at 246 (noting that of twelve employees from Program of Public Housing who
were given confidential positions within agency, eleven were regional directors possessing
policymaking power). The court also referred to the categorization of the local government
in Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 321 (1st Cir. 1987) (holding that employees working in governor's mansion and Office of Cultural Affairs were not subject to discharge for political affiliation).
136. See, e.g., Roman Melendez v. Inclan, 826 F.2d 130, 135 (1st Cir. 1987) (holding that
plaintiff's position related to particular political interests and concerns as defined inJimenez
Fuentes); Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525, 528 (1st Cir. 1987) (applying
Jimenez Fuentes test to conclude that position of RHA Regional Director is outside class of
public officials protected from politically motivated dismissal under Constitution); Vazquez
Rios v. Hernandez Colon, 819 F.2d 319, 326, 328 (1st Cir. 1987); Mendez-Palou v. RohenaBetancourt, 813 F.2d 1255, 1261-63 (1st Cir. 1987) (expounding onJimenez Fuentes test, but
concluding its analysis is beyond scope of appellate review in this case); Collazo Rivera v.
Torres Gaztambide, 812 F.2d 258, 262 (Ist Cir. 1987) (applyingJimenez Fuentes to hold RHA
Regional Director position not protected from politically motivated dismissal).
137. De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1191 (1st Cir. 1986) (concluding, in
immunity context, that law on particular position is seldom "clearly established").
138. Id.
139. See infra notes 394-408 and accompanying text (examining grant of qualified immunity to public officials).
140. See, e.g., Goyco de Maldonado v. Rivera, 849 F.2d 683, 687 (Ist Cir. 1988) (allowing
qualified immunity for Puerto Rican bank president); Roure v. Hernandez Colon, 824 F.2d
139, 141 (Ist Cir. 1987) (holding that governor may claim qualified immunity with regard to
claim of translator); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 326-28 (1st Cir. 1987)
(concluding that widely varied duties of cultural attachE included sufficient policymaking
power to warrant qualified immunity for official who had discharged employee); MendezPalou v. Rohena-Betancourt, 813 F.2d 1255, 1260-63 (1st Cir. 1987) (declaring that Puerto
Rican public officials were entitled to qualified immunity from claims of administration employees); De Abadia, 792 F.2d at 1193 (holding that supervisors were entitled to qualified immunity); I'azquez Rios, 819 F.2d at 326 (holding that cleaning women, janitors, and supervisors
of domestic services are protected from patronage dismissals even though dimensions of
Elrod/Brantistandard are not precisely articulated in case law).
141. See Goyco de Maldonado v. Rivera, 849 F.2d 683, 683 (1st Cir. 1988) (addressing in
1988, claim of improper dismissal for action occurring in 1985).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
solved as time passes and cases are decided. 142
The First Circuit's opinions suggest that the court is inclined to
keep the Elrod/Brantiexception as broad as possible, as opposed to
extending constitutional protections to more employees.' 43 In
Jimenez Fuentes the court noted that:
[R]epresentative government needs a certain amount of leeway
for partisan selection of agents in order to work ....
In order for
the new administration to be given an opportunity to fulfill expectations, it must have available, and also appear to have available,
significant facilitators of policy, people who have the personal and
partisan loyalty, initiative, and enthusiasm that can make the difference between the acclaimed success of a government agency or
program and its failure or, more typically, its lackluster
44
performance. 1
In his dissent inJimenez Fuentes, however, Judge Torruella attacked
the majority for refusing to accept the holding in Branti.14 5 He
noted that Branti places a strong burden on the discharging individual to prove that party affiliation is necessary for effective job performance.1 4 6 IfJudge Torruella is correct, then one can expect the
First Circuit to hold that many positions satisfy theJimenez Fuentes
two-part test and, therefore, many non-civil service employees will
remain subject to political dismissals. 14 7
142. But see De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1206 (1st Cir. 1986) (Torruella,
J., dissenting) (claiming that within five years following Branti decision vast numbers of cases
have been decided that either cited or followed Branti).
143. See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (Ist Cir. 1986) cert.
denied, 481 U.S. 1014 (1987) (stating that "[ildentifying generic categories of positions where
partisan selection and rejection are permissible has ... proven to be an elusive and intractable
task").
144. Id.
145. See id. at 249 (Torruella, J., dissenting).
146. Id. (Torruella, J., dissenting).
147. See, e.g., Goyco de Maldonado v. Rivera, 849 F.2d 683, 687 (1st Cir. 1988) (holding
that first vice president of Housing Bank and Finance Agency was not protected from dismissal); Roman Melendez v. Inclan, 826 F.2d 130, 135 (1st Cir. 1987) (holding that regional
director of General Services Administration could be fired); Roure v. Hernandez Colon, 824
F.2d 139, 141 (1st Cir. 1987) (ruling that governor's translator was not protected from dismissal); Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525, 528-29 (1st Cir. 1987) (holding
that regional director of Rural Housing Administration could be fired); Vasquez Rios v. Hernandez Colon, 819 F.2d 319, 325-26 (1st Cir. 1987) (stating that editing assistant to governor,
executive secretary in governor's office of cultural affairs, and political advisors and personal
secretaries to governor were not protected from patronage dismissals); Mendez-Palou v.
Rohena-Betancourt, 813 F.2d 1255, 1260-63 (1st Cir. 1987) (concluding that director of administration for environmental quality board, assistant secretary for special services in department of agriculture and deputy executive director for special affairs, were not protected from
patronage dismissals); De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1195 (1st Cir. 1986)
(holding that First Deputy Commissioner of Water Department, Superintendent of Employment for Park District, and Assistant District Attorney could be fired). But see Vazquez Rios, 819
F.2d at 326 (holding that cleaning women, waiters, and supervisors of domestic services were
constitutionally protected from patronage dismissals).
1989]
PATRONAGE DISMISSALS
B.
The Second Circuit
The Second Circuit is openly hostile to expanding the categories
of public employees to which Elrod/Brantiprotection applies.14 8 In
Savage v. Gorski,1 49 the court labeled as dictum Branti's reformulation' 50 of the criteria for positions not protected from patronage
dismissals. 51 Moreover, the Second Circuit stated that the correct
way to interpret Branti is to except from constitutional protection
any position where "there is a rational connection between shared
ideology and job performance."'' 52 The court stated that the purpose of expanding the exception is to ensure that the policies cho15
sen by the voters are carried out.'
One factor that the Second Circuit believes should be emphasized
when considering whether a particular government job falls within
the Branti exception is whether the locality has exempted the job
from its civil service system.' 54 The court stated that if local governments are allowed to determine which jobs are precluded from protection, then federal intrusion into the essence of local governance,
every time a change of administration occurs, would be avoided.' 5 5
Thus, the Second Circuit finds that employees who are terminated
by an incoming administrator are not protected from dismissal
unless they can show special circumstances which would make deference
to
such
electoral and legislative
determinations
56
'
inappropriate.
148. See Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (exempting most policymaking
and confidential employees from protection from dismissal). But see Lieberman v. Reisman,
857 F.2d 896, 900 (2d Cir. 1988) (holding that denial of compensatory and vacation payments
because of political affiliation and campaign for public office raises constitutional claim which
does not unduly extend protections of Elrod/Branti). Although this Article focuses on patronage dismissals and has not included a discussion of the effect of Elrod/Branti on other
patronage practices, it may be significant that the Second Circuit has expanded the reach of
Elrod/Brantiin other areas. See id.
149. 850 F.2d 64 (2d Cir. 1988) (holding that three county employees were not entitled to
preliminary injunction preventing termination of their employment because inter alia they
were policymakers and, therefore, it was not likely they would be successful on merits of their
claim).
150. See Branti v. Finkel, 445 U.S. 507, 518 (1980). Specifically, the Supreme Court stated
that: "The ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective performance of the public office involved." Id.
151. Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988).
152. Id.
153. Id.
154. Id. at 69. The court in Savage noted that New York State has used similar factors in
determining exemptions for its civil service system. Id. The First Circuit also examines the
civil service status of the employee in question. See supra note 135 and accompanying text
(discussing policymaking ramifications mentioned inJimenez Fuentes).
155. Savage, 850 F.2d at 69.
156. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
One of the most frequently cited opinions involving Elrod/Branli
protection is Ecker v. Cohalan,157 written by Chief Judge Jack Weinstein of the United States District Court for the Eastern District of
New York.15 8 The Second Circuit quoted from his opinion, 159 and
seems to be in accord with his reasoning. 160 ChiefJudge Weinstein
noted that a lack of certainty as to which government jobs are constitutionally protected against patronage dismissals has a chilling effect on public employees in the exercise of their first amendment
rights, as well as on public officials in their exercise of voter-sanctioned powers. 16 ' To ameliorate these dangers, ChiefJudge Weinstein listed several factors that indicate whether or not an employee
is a policymaker.' 6 2 His analysis emphasized that the plaintiff in
Ecker was among the highest paid employees in the county, participated in policy meetings, was the sole deputy commissioner, and
most importantly, controlled the dispensation of patronage. 1 3
Thus, ChiefJudge Weinstein believed that this plaintiff was not protected under Elrod/Branti, and as a result, he held the plaintiff's
claim to be frivolous and awarded attorney's fees to the defendant. a64 ChiefJudge Weinstein concluded that if a conflict arises between the first amendment rights of public employees and the rights
of the electorate to have their chosen policies carried out by their
157. 542 F. Supp. 896 (E.D.N.Y. 1982) (upholding dismissal of deputy commissioner of
parks).
158. See, e.g., Savage, 850 F.2d at 69 (holding that correctional officer, pre-trial release
program coordinator, and veterans service agency service officer were subject to termination
for political affiliation); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir.
1986) (declaring that regional directors of Puerto Rican Urban Development and Housing
Corporation held positions for which party affiliation was appropriate requirement for effective job performance), cert. denied, 481 U.S. 1014 (1987); Brown v. Trench, 787 F.2d 167, 169
(3d Cir. 1986) (allowing termination of assistant director of county public information office
on basis of political affiliation because of necessity of common beliefs of director and county
commissioners), aff'd, 829 F.2d 30 (3d Cir. 1987); Barnes v. Bosley, 568 F. Supp. 1406, 1410,
1412 n.7 (E.D. Mo. 1983) (forbidding termination of two supervisors in circuit clerk's office
on basis of political affiliation, but allowing such termination of administrative assistant), aff'd
in part & rev'd in part, 745 F.2d 501 (8th Cir. 1984), cert. denied, 471 U.S. 1017 (1985).
159. See Savage, 850 F.2d at 69. The Second Circuit quoted ChiefJudge Weinstein's language that stated:
Though rarely lauded in party platforms and political speeches, patronage is a policy;
the decisions whether to dispense it and how are policy decisions; and the patronage
dispenser is among the most powerful of our political sachems. Failure to recognize
this fact of political life would yield the paradoxical result that in attempting to curtail future patronage, the courts had merely entrenched existing patronage systems.
Id. (citing Ecker, 542 F. Supp. at 903).
160. Savage, 850 F.2d at 69 (noting that Ecker suggests deference to electoral and legislative determinations).
161. Ecker v. Cohalan, 542 F. Supp. 896, 901 (E.D.N.Y. 1982).
162. Id.; see supra note 130 and accompanying text (listing considerations indicative of
policymaking position).
163. Ecker, 542 F. Supp. at 902.
164. Id. at 903.
1989]
PATRONAGE DISMISSALS
31
chosen representatives, then the latter must prevail.' 65
The Second Circuit has also used language from Garretto v.
Cooperman,' 6 6 an opinion written by Judge Leval of the United States
District Court for the Southern District of New York.167 Judge Leval
concluded tlat Branti did not state the law as it applies to government policymakers; 168 that is, whether an employment position involves policymaking decisions remains a relevant inquiry when
assessing the constitutional protections a particular employee receives. 16 9 According to Judge Leval, to hold otherwise would place
most policymaking-including presidential cabinet posts-within
the scope of the Elrod/Brantiprotections because these positions do
not require party affiliation for effective job performance.' 7 0 The
effect of such a law would be to nullify the choice of the voters, an
impossible result in a representative democracy.' 7 '
The Second Circuit's affirmation of this analysis 72 indicates that
the court is committed to disregarding as dictum Branti's test for
protected status. 17 3 The court seems to favor an expansive use of
the Elrod policymaker exception as more reflective of the realistic
74
world of local government and politics.'
C.
The Third Circuit
In contrast, the Third Circuit stated that Branti established a new
test, 17 5 and thus, supplanted Elrod to the extent that though rele165. Id.
166. 510 F. Supp. 816, 820 (S.D.N.Y. 1981) (holding worker's compensation judge to be
policymaking position, and thus excluded from Elrod/Brantiprotection), aft'd, 794 F.2d 676
(2d Cir. 1984).
167. See Savage v. Gorski, 850 F.2d 64, 69 (2d Cir. 1988) (contending that because responsibilities of Coordinator of Pretrial Services entail making recommendations to judges,
position involves "policymaking 'at the questionable fringes,' " and thus does not receive
Elrod/Branti protection) (quoting Garretto v. Cooperman, 510 F. Supp. 816, 819 (S.D.N.Y.
1981)).
168. Garretto, 510 F. Supp. at 820. Judge Leval stated that "[in this case I do not believe
the Supreme Court will adhere to the Branti dictum when the issue of a maker of governmental policy is before it. I believe the Court will continue, as suggested in Elrod, to recognize an
exception for policymaking offices." Id.; see Savage, 850 F.2d at 68 (asserting that "[a] better
interpretation of the language in Brani is to read it as saying that political affiliation is an
appropriate requirement when there is a rational connection between shared ideology and job
performance, a reading which would exempt from protection most policymaking and confidential emproyees"). But see supra notes 94-98 and accompanying text (discussing Branti and
contending that decision appears to minimize importance of policymaking and confidential
characteristics when determining whether employment is exempted from protection).
169. Garreto, 510 F. Supp. at 820.
170. Id. at 819.
171. Id. at 820.
172. See Savage, 850 F.2d at 68.
173. See supra note 150 and accompanying text (stating Branti test).
174. Savage, 850 F.2d at 69.
175. See Loughney v. Hickey, 635 F.2d 1063, 1064 (3d Cir. 1980) (vacating and remanding
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
vant, one's status as a policymaker or confidant is no longer determinative of an exception to constitutional protection. 76 The Third
Circuit claims that the key factor in a patronage dismissal case is
"whether the employee has 'meaningful input into decision making
concerning the nature and scope of a major... program.'"177
The effect of this interpretation on future Third Circuit decisions
is not easy to predict because a significant split appears to exist on
the court. Former Chief Judge Aldisert is extremely critical of the
Elrod/Branti decisions, asserting that his only reason for following
them is his loyalty to the doctrine of stare decisis.1 78 In Horn v.
Kean,179 he wrote for a plurality of an en banc court that Elrod and
Branti do not require that constitutional protection against patronage dismissals be extended to state motor vehicle agents acting
as independent contractors. 18 0 In a concurring opinion, Judge Adams emphasized the importance of not expanding the Supreme
Court's Elrod/Branti decisions because the issue raises separation of
powers questions and the judiciary "has an obligation to respect
political choices." 18 ' In contrast,Judge Garth,joined by Judge Higginbotham, stated in concurrence that the majority's criticisms of
Elrod and Branti do not appear warranted.'8 2
Nevertheless, in 1987, a year after Horn, the Third Circuit extended Elrod/Branti protection to plaintiffs who were not discharged, but demoted. 8 3 In Bennis v. Gabel,'8 4 a three-judge panel
distinguished Horn on the grounds that the plaintiffs were public
employees. 8 5 The court in Bennis also noted that a majority of the
court did not support the criticisms asserted in Horn nor the contenlower court's decision denying plaintiffs' claim for relief under 42 U.S.C. § 1983 to be decided
pursuant to newly announced Branti test).
176. See Brown v. Trench, 787 F.2d 167, 168-69 (3d Cir. 1986) (applying Branti to conclude that Assistant Director of Public Information could constitutionally be dismissed because of political affiliation).
177. Id. at 169-70 (quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981)).
178. Loughney, 635 F.2d at 1065-71 (Aldisert, J., concurring).
179. 796 F.2d 668 (3d Cir. 1986).
180. Horn v. Kean, 796 F.2d 668, 674 (3d Cir. 1986) (en banc) (plurality opinion). The
plaintiffs were agents who register motor vehicles, issue registration certificates, and license
drivers. Id. at 669-70. Under NewJersey law, such agents are not paid a fixed salary, but are
paid a fee for every registration and license issued. Id. at 670. They control and pay employees in their agencies without state interference. Id. All the plaintiffs were Democrats, appointed when a Democratic governor was in office. When Thomas Kean, a Republican,
became governor the plaintiffs were discharged from their positions. Id.
181. Id. at 679 (Adams, J., concurring).
182. See id. at 679 (Garth,J., concurring) (stating that Elrod/Brantiposes no grave threat to
democratic process).
183. See Bennis v. Gable, 823 F.2d 723, 732 (3d Cir. 1987) (stating that policemen could
not be demoted for exercising first amendment rights).
184. 823 F.2d 723 (3d Cir. 1987).
185. Id. at 732.
1989]
PATRONAGE DISMISSALS
tion that Elrod/Branti should be narrowly interpreted. 8 6 Thus,
taken together, Bennis and Horn provide government officials with
contradictory directions. Without clear instructions from the court,
town officials would be justifiably unsure of their power to dismiss
an opposition party employee who was at neither end of thejob continuum. If an official chooses to dismiss, then the official and the
town may bear the substantial risk of being co-defendants in a lawsuit brought by the terminated employee. If the official chooses not
to dismiss, the official is faced with an employee who may try to undermine the official's policies and the electoral statement of the
constituents.
D.
The Fourth Circuit
The Fourth Circuit clearly holds that the Branti test supplants
Elrod, and the court has applied the test to expand the class of employees protected from patronage dismissals.' 8 7 In Jones v. Dodson, I8 8 the court held that a deputy sheriff was protected from
removal on the basis of his party affiliation. 189 Moreover, in McConnell v. Adams' 9 0 the Fourth Circuit expanded Branti protection to
cases involving patronage refusals to rehire.' 9 '
E.
The Fifth Circuit
The Fifth Circuit has sharply limited the applicability of Elrod/
Branti by making a firm distinction between political affiliation dismissal cases and political activities dismissal cases; the court holds
that only the former cases receive the employee-favoring Elrod/
Branti categorical analysis.' 9 2 The Fifth Circuit reasoned that the
186. Id.
187. See McConnell v. Adams, 829 F.2d 1319, 1323 (4th Cir. 1987) (holding that failure to
reappoint county registrars violated first amendment);Jones v. Dodson, 727 F.2d 1329, 1338
(4th Cir. 1984) (ruling that deputy sheriff's duties not sufficiently related to warrant dismissal
on basis of party affiliation).
188. 727 F.2d 1329 (4th Cir. 1984).
189. Jones, 727 F.2d at 1338.
The Fifth Circuit had previously held under an Elrod/Brantianalysis, a deputy sheriff was
not entitled to protection from dismissal. See McBee v. Jim Hogg County, 730 F.2d 1009,
1014 (5th Cir. 1984) (finding that after Connick v. Myers, 461 U.S. 138 (1983), balancing
approach rather than Elrod/Branti categorical test was appropriate to facts of case); see also
Connick, 461 U.S. at 146-54 (holding practical realities of administering district attorney's office outweigh employee's first amendment rights to speak on public issues); infra notes 192208 (discussing Fifth Circuit decisions); infra notes 369-79 and accompanying text (discussing
dismissals based on political activity rather than affiliation).
190. 829 F.2d 1319 (4th Cir. 1987).
191. See McConnell v. Adams, 829 F.2d 1319, 1324 (4th Cir. 1987) (concluding there is no
constitutional difference between patronage refusal to rehire and patronage dismissal).
192. See McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984) (discussing
balancing test for weighing employee's free speech and association rights against state's right
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
plaintiffs in Elrod and Branti were discharged solely for their "private
and... abstract political views."' 9 3 That is, because the discharged
employees had not engaged in any overt political activities, their
constitutional rights could not be outweighed by any governmental
interest in their removal.' 9 4
In contrast, the Fifth Circuit asserted that when a public employee
initiates political action by speaking or campaigning, Elrod/Branti
protection does not apply.i 9 5 In the case of dismissal because of
political activities, the Fifth Circuit would apply a balancing testwhich could be denominated the Connick '9 6 /Pickering' 9 7 test-to determine whether the dismissal is constitutionally permissible. 9 8 Using this ad hoc balancing approach, the court weighs the extent to
which the employee's political activities involve "public concerns"
against the extent to which public responsibilities require "close
working relationships."' 9 9 Thus, if close working relationships are
required at the office, the determinative issue is whether the speech
sufficiently disrupted those relationships to undermine effective job
200
performance.
Without denouncing Elrod and Branti, as the Second and Third
Circuits have done, the Fifth Circuit has succeeded in limiting severely the reach of these decisions. 20 ' First, the Fifth Circuit's balancing approach extends constitutional protection to substantially
fewer public employees than would a strict application of the Elrod/
as employer to loyal and efficient service); see also Matherne v. Wilson, 851 F.2d 752, 757 (5th
Cir. 1988) (granting immunity to sheriff who dismissed investigator on basis of political activity); McCormick v. Edwards, 646 F.2d 173, 178 (5th Cir.) (holding that Elrod/Branti does not
apply to cases involving political activity), cert. denied, 454 U.S. 1017 (198 1)).
193. McBee, 730 F.2d at 1014.
194. Id.
195. Id.
196. Connick v. Myers, 461 U.S. 138, 151 (1983) (holding that assistant state prosecutor
could be dismissed when her protected speech rights were outweighed by government's legitimate interest in having its employees perform their duties "with efficiency and integrity,"
quoting Exparte Curtis, 106 U.S. 371, 373 (1882)).
197. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (requiring ad hoc balancing of
public employee's protected speech rights against state's interest in employee efficiency in
order to determine constitutional permissibility of discharging employee).
198. McBee, 730 F.2d at 1015-16. In Finkelstein v. Bartholemy, 678 F. Supp. 1255 (E.D.
La. 1988), the district court used the balancing approach to weigh a discharged district attorney's free speech and association rights against the government's interest in "loyal, trustworthy, and competent service." Finkelstein, 678 F. Supp. at 1259. The court held that the
plaintiff had no cause of action. Id. at 1262. Although this result probably would have been
achieved under the Elrod/Branti categorical test, that result would not necessarily be certain
when the plaintiff holds a position other than that of a government attorney. Id. at 1266.
199. McBee, 730 F.2d at 1016 (quoting Connick v. Myers, 461 U.S. 138, 151 (1983)).
200. Id. at 1017.
201. See supra notes 192-200 and accompanying text (discussing Fifth Circuit's interpretation of Elrod and Branti).
1989]
PATRONAGE DISMISSALS
Branti test.20 2 Second, if any political activity renders public employees ineligible for Elrod/Branti protection, then few employees
who obtained their jobs through patronage qualify. Many of these
employees have, at a minimum, worked for their local political organizations by being committeepersons, stuffing envelopes, getting
petitions signed, or attending fundraisers. If, however, an employee's only political activity involves registering as a member of
the opposition party, the employee may have a more difficult time
proving that party affiliation was the cause of his dismissal, a re20 3
quirement for a prima facie case under Elrod/Branti.
The Fifth Circuit has further limited the number of employees
protected under Elrod/Branti by refusing to apply the protection in
failure-to-rehire cases when the plaintiff has not applied for reappointment. 20 4 Specifically, in Simmons v. Lyons, 205 the court held that
the employees' "understanding" that they will not be rehired because of their active support of another public official will not be
sufficient to prove a violation of constitutional rights, absent specific
actions or statements by the hiring official. 20 6 In contrast, the
Fourth Circuit, in extending Elrod/Brantito include failure-to-rehire
cases, dismissed the defendants' assertion that the plaintiffs failed to
reapply for their jobs. 20 7 The Fourth Circuit stated that reapplication was unnecessary because the defendants had notice that the
20 8
plaintiffs wished to continue their employment.
F.
The Sixth Circuit
The Sixth Circuit has issued no opinions clearly indicating
whether it interprets the Elrod/Branti protection broadly or narrowly, or the particular test it would use to determine protected status. A brief paragraph in Conklin v. Lovely, 20 9 however, suggests that
202. Under a broad application of the Elrod/Brantitest, an employee maybe dismissed if it
can be shown that their position is one for which party affiliation is an appropriate requirement for effective performance. McBee v. Jim Hogg County, 730 F.2d 1009, 1013 (5th Cir.
1984) (citing Brand v. Finkel, 445 U.S. 507, 518 (1980)). This contrasts with the more fact
specific balancing test allowing employees to be dismissed if their political activity disrupts the
working relationships of the office to the extent that effective performance is prevented. McBee, 730 F.2d at 1017. Therefore, under Elrod/Branti, a policymaking position is usually required before termination can be valid; under the balancing test, however, the only
requirement for a dismissal to be upheld is that a disruption of working relationships occurs.
203. Branti v. Finkel, 445 U.S. 507, 517 (1980).
204. Simmons v. Lyons, 746 F.2d 265, 268 (5th Cir. 1984) (noting that official had no duty
to consider rehiring employees who failed to apply for reappointment); McBee v. Jim Hogg
County, 730 F.2d 1009, 1015 (5th Cir. 1984) (en banc).
205. 746 F.2d 265 (5th Cir. 1984).
206. Simmons, 746 F.2d at 268.
207. McConnell v. Adams, 829 F.2d 1319, 1323 n.3 (4th Cir. 1987).
208. Id.
209. 834 F.2d 543 (6th Cir. 1987).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
the court finds that Branti expands the Elrod policymaker exception
by allowing dismissal of non-policymakers if "the hiring authority
can demonstrate that party affiliation is an appropriate requirement
for the effective performance of the public office involved." 21 0 The
court deems this language Branti's holding, rather than mere dictum. 211 Moreover, the Sixth Circuit in Balogh v. Charron2 12 indicated
that despite Branti, confidential employee status can still determine
the permissibility of a patronage dismissal. 21 3
G.
The Seventh Circuit
The Seventh Circuit has addressed several patronage dismissal
cases. 21 4 In Nekolny v. Painter,21 5 a frequently cited case, 2 16 the court
concluded that the Elrod policymaking exception 2 17 is still viable after Branti,21 8 but noted the difficulty in the factual determination of
policymaking status. 21 9 The test that the Seventh Circuit created in
210. Conklin v. Lovely, 834 F.2d 543, 546 (6th Cir. 1987) (quoting Branti v. Finkel, 445
U.S. 507, 518 (1980)).
211. Conklin, 834 F.2d at 546; cf.supra note 151 and accompanying text (noting that Second Circuit has deemed same language to be dictum).
212. 855 F.2d 356 (6th Cir. 1988).
213. See Balogh v. Charron, 855 F.2d 356, 356-57 (6th Cir. 1988) (concluding that court
officer, assigned solely to one judge, occupies position in which confidentiality is essential).
214. See infra notes 215-40 and accompanying text (describing cases in Seventh Circuit).
215. 653 F.2d 1164 (7th Cir. 1981) (noting that narrow definition of what constitutes policymaking position could hamper implementation of new administration's policies), cert. denied,
455 U.S. 1021 (1982).
216. See, e.g.,Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir. 1986)
(citing Nekolny), cert. denied, 481 U.S. 1014 (1987); Rodriguez v. Munoz, 808 F.2d 138, 144-45
(1st Cir. 1986) (citing Nekolny and upholding discharge of public employees holding political
position based on political patronage); Ecker v. Cohalan, 542 F. Supp. 896, 900 (E.D.N.Y.
1982) (citing Nekolny and holding that once plaintiff demonstrates discharge based on political
activity, defendant may rebut by showing that either plaintiff would have been fired based on
other factors, or that political considerations are relevant to position).
217. See Elrod v. Bums, 427 U.S. 347, 367 (1976) (holding that employees in non-policymaking positions are not able to frustrate goals of party in power).
218. See Nekolny, 653 F.2d at 1169 (incorporating Branti functional test into Elrod policymaking exception). In Livas v. Petka, 711 F.2d 798, 800 (7th Cir. 1983), the court described
Branti as revamping the policymaking or confidential exception of Elrod. In that case, the
Seventh Circuit held that political considerations are an appropriate requirement for the effective performance of a public prosecutor's duties. See id. at 800-01 (stating that society's
interest in efficient judicial system demands that assistant prosecutors conform to policies of
prosecutor).
In Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985), cert. denied, 474 U.S. 946
(1985), the court described Branti as abandoning the labels of "policymaker" and "confidential employee" for a more functional analysis. See id. (allowing dismissal on political grounds
only if political loyalty is necessary for proper fulfillment of employee's responsibilities).
In Meeks v. Grimes, 779 F.2d 417, 418 (7th Cir. 1985), the court stated that the "crucial
issue" in deciding whether plaintiffs were subject to patronage discharge was whether they
were "policymaking or confidential employees." See id. (maintaining that even though Branti
has moved toward functional analysis, it would be error to disregard utility of determining
whether position entails policymaking or is confidential).
219. See Nekolny, 653 F.2d at 1169 (stating that sufficient evidence had been presented to
compel reasonable jury to conclude that status in question was policymaking, citing Rosenthal
1989]
PATRONAGE DISMISSALS
37
Nekolny, and later reformulated in Tomczak v. City of Chicago,220 seeks
to establish whether the position at issue allows "room for principled disagreement on goals or their implementation," 2 2 1 and allows
2 22
the employee meaningful input into the decision-making process.
The court uses evidence of a high salary as an indicator of a "position of some influence," 22 3 emphasizing that a position possessing
2 24
final decision-making authority is not determinative.
In Tomczak, the Seventh Circuit suggested that every service activity of the government 225 clearly created room for "principled disagreement" concerning the method of delivery of the particular
service to the public. 2 26 Among the factors indicating that a position in a service activity authorized decision-making input are re2 27
sponsibility for many employees, high salary, and broad duties.
Using this analysis, the court held that the position of First Deputy
Commissioner of the Department of Water for the City of Chicago
fell within the Branti exception 2 28 and thus, was not protected from
229
patronage dismissal.
Moreover, the Seventh Circuit emphasizes, and general agreement among the jurisdictions appears to exist, 230 that the inherent
powers of the position are at issue in determining Elrod/Brantiprotection, and not the tasks that the particular plaintiff/employee perv. Rizzo, 555 F.2d 390 (1977) (holding that full trial is generally required to resolve bona fide
issue as to facts pertaining to question of whether position is policymaking or not)). The
court in Rosenthal maintained that the issue of ultimate fact must be distinguished from questions regarding facts which relate to evidence or circumstances. Rosenthal, 555 F.2d at 395.
220. Tomczak, 765 F.2d at 641 (stating that emphasis should be placed on office and its
function, rather than on office holder).
221. Nekolny, 653 F.2d at 1170; Tomczak, 765 F.2d at 641.
222. See Nekolny, 653 F.2d at 1170; Tomczak, 765 F.2d at 641 (noting that influence on
decision-making powers could be used to thwart policies of governing party).
223. Nekolny, 653 F.2d at 1170. The First Circuit adopted the Seventh Circuit's formulation as well. See supra note 117 and accompanying text (discussing First Circuit's position).
224. See id. (noting that although position did not have final decision-making authority,
high pay could be evidence of its policymaking status).
225. See Tomczak, 765 F.2d at 641 (naming police and fire protection, public schools, hospitals, transportation, libraries, water, garbage, and sewage services as government service
activities).
226. See id. at 641 (indicating that although city water department's general goal is providing services to public, major disagreements as to achievements of this objective could still
exist).
227. Id. at 642.
228. See id. at 643 (holding that defendant had established that plaintiff's position involved effective participation in decision-making process in areas of potential conflict).
229. Id.
230. See, e.g.,Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir. 1986)
(noting that to determine whether policymaking exception applies, determination must be
made as to whether party affiliation is properly required or function of position), cert. denied,
481 U.S. 1014 (1987); Ness v. Marshall, 660 F.2d 517, 522 (3d Cir. 1981) (stating that city
code imposes such duties on official as to properly require party affiliation); Ecker v. Cohalan,
542 F. Supp. 896, 903 (E.D.N.Y. 1982) (allowing requirement of political affiliation when position may be legally utilized to perform policymaking functions).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
forms. 23 ' The reasons for this approach are: (1) to limit litigation
by having a decision rendered about a particular job be applicable
to that job no matter who is performing it;232 (2) to provide certainty for jobholders as to whether their job is a protected one; 2 33
and (3) to give officials the flexibility of having an employee exercise
all possible powers of a position even though a prior holder of that
position performed only a few ministerial functions. 2 34
The Seventh Circuit characterized its analyses in these cases as an
attempt to achieve a rough balance between governmental efficiency, political reality, and individual liberty. 2 35 In making this attempt, the court takes a pragmatic view of Elrod/Branti
protection, 2 3 6 and regards Branti as sufficiently broadening the Elrod
exception to include certain situations which arise in the real, political world. 23 7 Thus, the Seventh Circuit recognizes a category of
government jobs-other than policymaking or confidential-that do
not fit neatly within the Branti exception but which, nonetheless,
may not be entitled to constitutional protection. 2 38 That is, positions in which a non-confidential, non-policymaking employee
works in such close, constant contact with a public official that political opposition would create an impossible working atmosphere. 23 9
Examples of such employees might be a judge's exclusive secretary,
a law clerk, a court reporter, or a bailiff.240 These jobs also seem to
231. Wrigley v. Greanias, 842 F.2d 955, 958 (7th Cir. 1988) (refusing to grant summary
judgment to employer because bona fide issue of fact existed as to whether employer was
entitled to qualified immunity), cert. denied, 109 S. Ct. 132 (1988); Meeks v. Grimes, 779 F.2d
417, 419 (7th Cir. 1985) (holding that sufficient evidence had not been presented to justify
requirement of political affiliation for position of city court bailiff); Tomczak, 765 F.2d at 641
(claiming dismissal on political grounds only if political loyalty is necessary for proper fulfillment of employee's responsibilities).
232. See Greanias, 842 F.2d at 958 (holding that clear definition of position is required
before employees can be discharged on political grounds).
233. See Tomczak, 765 F.2d at 641 (stating that one reason for Nekohzy test is to provide
litigants with some certainty as to whether their job is protected).
234. Greanias, 842 F.2d at 958 (maintaining that employer's decision to limit powers of
position does not affect position's inherent powers); Tomczak, 765 F.2d at 640-41 (finding that
inherent powers are constant).
235. See Meeks, 779 F.2d at 418 (assuming patronage to be ever present in politics and
therefore, reconciling its natural conflict with first amendment rights of employees).
236. See Soderbeck v. Burnett County, 752 F.2d 285, 288 (7th Cir.) (holding that government official cannot be forced to keep confidential secretary belonging to opposition party),
cert. denied, 471 U.S. 1117 (1985).
237. Soderbeck, 752 F.2d at 288. Unlike the Second Circuit's view that the Branli reformulation is so limiting that, if it were not dicta and had to be carried out literally, almost no
position would be exempt, the Seventh Circuit attempts to place Branti within the scope of its
analysis. See supra notes 148-52 and accompanying text (describing Second Circuit's position).
238. See Meeks, 779 F.2d at 422 (holding that neither Elrod nor first amendment requires
government officials to work in constant contact with their political enemies).
239. See id. at 423 (stating that to require constitutional protection for these positions
would be detrimental to efficient operation of government).
240. Id.
1989]
PATRONAGE DISMISSALS
be the types of positions that troubled the Second Circuit, prompting its formulation of the "rational connection between shared ideology and job performance" test.24 1 Furthermore, these positions
are illustrative of the difficulties facing judges and public officials
who are trying to protect the first amendment rights of public employees while simultaneously ensuring that government continues
to operate in a representative and efficient manner. 24 2
H.
The Eighth Circuit
The Eighth Circuit has made no sweeping statements on the application of Elrod/Branti, though it has been called upon to apply
those decisions. For example, the court held that a lawyer in the
Office of the Clerk of the Circuit Court of the City of St. Louis was
not protected from a patronage dismissal because an attorney-client
relationship requires mutual confidence and compatibility. 24 3 At
the other end of the job continuum, the court found that deputy
circuit court clerks had protected positions because their jobs were
primarily ministerial, and their personal politics would not influence
policymaking. 24 4 The Eighth Circuit also stated that Elrod/Branti
protection does not extend to persons who are not public
24 5
employees.
The Eighth Circuit, however, has addressed an interesting issue
not faced by the other circuit courts. In Barnes v. Bosley, 24 6 one of
the plaintiffs had been an administrative assistant in the Office of the
Circuit Court Clerk of the City of St. Louis. 2 47 The position requires the exercise of independent judgment and the initiation and
implementation of policy. 2 48 Two weeks before the newly elected
opposition party circuit court clerk took office, the plaintiff was
241. See supra note 152 and accompanying text (describing Second Circuit's test).
242. See Meeks, 779 F.2d at 422 (holding that employee in confidential position is not protected by first amendment); see also Soderbeck, 752 F.2d at 288-89 (stating that question of
whether position is policymaking or whether political affiliation is required for efficient performance of duties is not always one of law, and may be submitted to jury).
243. Bauer v. Bosley, 802 F.2d 1058, 1063 (8th Cir. 1986) (maintaining that relationship
between plaintiff and defendant required high degree of trust because plaintiff provided defendant with legal representation and advice), cert. denied, 481 U.S. 1038 (1987).
244. Barnes v. Bosley, 745 F.2d 501,508 (8th Cir. 1984) (maintaining that although plaintiffs wielded influence on decision-making process under previous officials, such powers were
not inherent in their position), cert. denied, 471 U.S. 1017 (1985).
245. Sweeney v. Bond, 669 F.2d 542, 545 (8th Cir. 1982) (refusing to extend Elrod/Branti
protection to fee agents who were more like independent contractors or franchisees than like
public employees), cert. denied, 459 U.S. 878 (1982).
246. 568 F. Supp. 1406 (E.D. Mo. 1983), aff'd in part &rev'd in part, 745 F.2d 501 (8th Cir.
1984), cert. denied, 471 U.S. 1017 (1985).
247. Barnes v. Bosley, 568 F. Supp. 1406, 1411-12 (E.D. Mo. 1983), aff'd in part and rev'd
in part, 745 F.2d 501 (8th Cir. 1984), cert. denied, 471 U.S. 1017 (1985).
248. Barnes, 568 F. Supp. at 1412.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
transferred to the position of court clerk, ajob with primarily ministerial duties. 24 9 The transfer was made to protect the plaintiff from
a patronage dismissal and entailed the displacement of a court clerk
already in office. 250 Nevertheless, upon taking office, the new circuit
1
court clerk dismissed the plaintiff.2 5
The district court held that employment responsibilities of the
plaintiff's new job were not pertinent for purposes of Elrod/Branti
analysis. 25 2 The court regarded the transfer as mere subterfuge to
gain first amendment protection for the plaintiff, while putting at
risk the employee dismissed from the position.2 5 3 The district court
concluded that the intent of Elrod/Branti did not command that the
plaintiff receive constitutional protection. 2 54 Under the court's
analysis, the plaintiff's discharge was permissible because political
affiliation was determined to be an appropriate requirement for an
administrative assistant, the position which the plaintiff originally
2 55
held.
The Eighth Circuit reversed the district court's decision, 2 56 holding that the manner in which the plaintiff acquired the job was irrelevant to an Elrod/Branti analysis.2 5 7 The court found that the
employer could dismiss the plaintiff for incompetence or could
lower the plaintiff's salary, 25 8 but the employer was precluded from
removing the plaintiff because political affiliation was not an appropriate requirement for the position of court clerk.2 5 9 The Eighth
Circuit did not explain its literal interpretation of Elrod/Branti any
further than finding that those decisions protected the job at issue. 2 60 The Eighth Circuit did not indicate if the manner in which
the plaintiff obtained his job was irrelevant because the Supreme
Court-in rejecting waiver arguments supporting patronage dismissals 26 -previously held that a decision regarding an employee's
249. Id.
250. See id. (noting that court's decision may be different if plaintiff transferred to vacant
position).
251. Id. at 1408.
252. Id. at 1413.
253. See id. at 1413 (stating that transfer was done to avoid dismissal).
254. See id. (drawing conclusion based on equitable interpretation of circumstances).
255. Id.
256. Barnes v. Bosley, 745 F.2d 501, 503 (8th Cir. 1984), cert. denied, 471 U.S. 1017
(1985).
257. See id. at 508 (noting that plaintiff was dismissed from ministerial position).
258. The plaintiff was receiving the same salary in his new post as he did in his former
position. Barnes, 568 F. Supp. at 1412.
259. Barnes, 745 F.2d at 508.
260. See id. (holding that transfer was irrelevant to Efrod/Branti analysis).
261. Elrod, 427 U.S. at 359-60 n.13 (holding that public employees do not waive right to
object to government practice of allowing employees to retain theirjobs only if they are affiliated with, or support, party in power); Branti, 445 U.S. at 512 n.6 (stating that plaintiff's
1989]
PATRONAGE DISMISSALS
right to be protected from patronage removal should not encompass the issue of whether the employee's hiring was based on polit26 2
ical affiliation.
Furthermore, the decision did not reflect whether the Court considered the extent to which its holding could impact on government
efficiency and on the mandate of the electorate. For instance, the
Court failed to address the question of whether the outgoing party
is permitted to promote employees affiliated with the incoming
party to non-protected positions and demote all the policymakers
and confidants affiliated with the outgoing party to protected ministerial jobs immediately before leaving office. One may argue that
these issues merited the attention of the court when reaching its decision in Barnes.
I.
263
The Tenth Circuit
2
The Tenth Circuit broke no new ground in Dickeson v. Quarberg, 6
holding that under the Elrod/Branti standard, a head jailer and an
administrative assistant to the sheriff were entitled to protection
from dismissal based on their political affiliation. 26 5 Because no formaljob description existed in the record for either position at issue,
the court analyzed the actual duties of the plaintiffs. 2 66 The court
noted that though the basis for any analysis focuses on the inherent
powers of the position, the duties the employee actually performed
must also be considered. 26 7 The record indicated that the primary
functions of the head jailer included the supervision of the housing
and feeding of prisoners, as well as the supervision of four
subordinate jailers.2 68 Ninety percent of the administrative assistant's duties were secretarial, and the remainder of the duties involved matron work and serving civil process. 2 69 Based on this
awareness that they were hired under patronage system did not necessarily mean that they
could not reasonably expect to be rehired if opposition political party took office).
262. See supra note 261.
263. The Ninth, Twelfth, and Federal Circuits have not written opinions on political
dismissal cases subsequent to Elrod and Branti.
264. 844 F.2d 1435 (10th Cir. 1988).
265. See Dickeson v. Quarberg, 844 F.2d 1435, 1443 (10th Cir. 1988) (applying factual
standard of Branti with consideration given to policymaking or confidential relationship factors developed in Elrod).
266. See id. (maintaining that scope of duties can be determined through testimony on
record).
267. See id. at 1442 (maintaining that duties actually performed must be analyzed to determine whether requirement of political affiliation is proper under circumstances). But see supra
notes 230-31 and accompanying text (stating that Seventh Circuit analyzes inherent powers of
position, rather than tasks particular employee performed in determining whether requirement of political affiliation is proper).
268. Dickeson, 844 F.2d at 1443.
269. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
record, the court concluded that party affiliation was not an appropriate requirement for either of these positions. 2 70 The court remarked, however, that decisions in close cases should favor the
27
dismissed employee. '
J.
The Eleventh Circuit
The Eleventh Circuit has also made no sweeping pronouncements
2 72
regarding its interpretation of Elrod/Branti. In Ray v. City of Leeds,
the Eleventh Circuit held that the director of community services for
Leeds was subject to discharge for political reasons. 273 Its decision
was based on the policymaking nature of the position,2 74 which required decisions on the allocation of scarce resources. 2 75 Such decisions, the court reasoned, made political affiliation an appropriate
2 76
requirement for effective job performance.
K
The District of Columbia Circuit
The District of Columbia Circuit has not decided any patronage
277
dismissal cases but utilized an Elrod/Brantianalysis in Hall v. Ford.
Hall involved the firing of a city university athletic director; the director alleged that the dismissal infringed upon his constitutional
free speech rights. 2 78 The court subscribed to the First Circuit's
two-prong test for determining whether an employee may be dismissed for his political affiliation. 2 79 In addition, the court noted
that although the government cannot generally require a public employee to relinquish a constitutional right, this rule can be overcome
by the government's legitimate interests in carrying out the electo280
rate's mandates and in efficient operation of the government.
270. See id. (indicating that size of office, lack of wholesale dismissals, and close working
relationship between plaintiff and official are not relevant under circumstances).
271. See id. at 1442 (stating that because government must justify intrusion on employee's
rights, all doubts should be resolved in favor of employee). But see supra note 165 and accompanying text (asserting that right of voters to have chosen policies implemented must prevail).
272. 837 F.2d 1542 (11th Cir. 1988).
273. Ray v. City of Leeds, 837 F.2d 1542, 1545 (11th Cir. 1988) (discussing plaintiff's
argument that political beliefs were irrelevant to performance of duties).
274. See id. at 1544 (noting that plaintiff set policy for department, subject only to mayor's
approval).
275. Id.
276. See id. at 1544-45 (maintaining that plaintiff had no property interest in her
employment).
277. 856 F.2d 255 (D.C. Cir. 1988).
278. See Hall v. Ford, 856 F.2d 255, 257 (D.C. Cir. 1988) (drawing similarities between
patronage dismissals and cases involving employee speech).
279. Id. at 262; see notes 114-22 and accompanying text (describing First Circuit test).
280. See Hall, 856 F.2d at 262-63 (noting importance of allowing high government officials
to implement their own policies through politically loyal and compatible employees).
1989]
PATRONAGE DISMISSALS
IV.
43
PROTECTED AND UNPROTECTED POSITIONS
The purpose of reviewing courts' rationales for protecting or declining to protect various categories of employees from patronage
dismissals is to develop guidelines for public employers' future personnel decisions. The most persuasive information can be provided
when a specific job category has already been subjected to court
scrutiny. Among those positions that courts have determined to be
constitutionally protected from patronage dismissals are: waiter, 28 1
cleaning woman, 28 2 supervisor of domestic services, 28 3 road
grader, 28 4 superintendent of roads, 2 5 director of roads, 28 6 carpentry inspector,2 8 7 office worker, 28 8 bookkeeper, 28 9 city clerk, 2 90 second deputy clerk, 29 1 registrar, 29 2 security guard, 29 3 bailiff,29 4 deputy
sheriff,295 special deputy in sheriff's office, 2 96 head jailer,29 7 process
281. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 322 (1st Cir. 1987) (stating that
waiter, cleaning woman, and domestic services supervisor were employed at governor's mansion and that their functions did not involve any matter bearing on political concern or
affiliation).
282. Id.
283. Id.
284. See Horton v. Taylor, 767 F.2d 471,478 (8th Cir. 1985) (holding that authority to fire
road department employees did not extend to dismissal of road graders for political reasons).
285. See Abraham v. Pekarski, 537 F. Supp. 858, 865-66 (E.D. Pa.) (indicating that dismissal of roads superintendant was due to insubordination, and was not politically motivated, and
implying that if dismissal was politically motivated, court would have disallowed it), aff'd in
part and appealdismissed in part, 728 F.2d 167 (3d Cir. 1982), cert. denied, 467 U.S. 1242 (1984).
286. Id.
287. See Goodwin v. LaPolla, 589 F. Supp. 1423, 1429 (N.D.N.Y. 1984) (noting that carpentry inspector had established that this discharge was due to campaign contribution to
mayor's opponent).
288. See Elrod v. Bums, 427 U.S. 347 (1976); see also supra notes 68-84 and accompanying
text (discussing Elrod v. Bums).
289. See Grossart v. Dinaso, 758 F.2d 1221, 1226-27 (7th Cir. 1985) (holding that though
office worker's position was non-policymaking and protected, dismissal was proper because
office worker failed to be zealous and loyal to employer).
290. See Visser v. Magnarelli, 530 F. Supp. 1165, 1173 (N.D.N.Y. 1982) (noting that city
clerk had only narrow technical responsibilities); Paradise v. O'Laughlin, 621 F. Supp. 694,
698 (W.D.N.Y. 1984) (indicating that city clerk's duties did not involve policymaking).
291. See Mitman v. Glascott, 557 F. Supp. 429, 430 (E.D. Pa. 1983) (holding second deputy clerk need not show that political affiliation was sole reason for dismissal), aft'd, 732 F.2d
146 (3d Cir. 1984).
292. See McConnell v. Adams, 829 F.2d 1319, 1324 (4th Cir. 1987).
293. See supra notes 68-84 and accompanying text (discussing Elrod v. Burns).
294. Id.
295. SeeJones v. Dodson, 727 F.2d 1329, 1338-39 (4th Cir. 1984) (holding that affiliation
with sheriff's political party was not proper requirement for deputy sheriff's position); Barrett
v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981) (ruling that Texas statute stating that deputies served at pleasure of sheriff did not authorize sheriff to dismiss or demote deputies on
basis of political affiliation).
296. See Dickeson v. Quarberg, 844 F.2d 1435, 1443 (10th Cir. 1988) (holding that though
sheriff's deputy did not have property interest in employment, sheriff could not dismiss on
basis of political affiliation).
297. Id.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
server, 298 chief deputy of process division, 2 99 deputy court clerk,3 0 0
supervisor in circuit clerk's office, 3 0 ' administrative assistant to
state's attorney, 3 02 assistant public defender, 3 03 attorney for the department of social services, 30 4 assistant county attorney in family
court, 30 5 supervisor in branch of county auditor's office, 30 6 county
license inspector,3 0 7 liquor control board hearing examiner, 30 8
branch manager for department of revenue, 30 9 second deputy recorder of deeds, 31 0 assistant director of department of motor vehicles, 3 1' and senior vice president of development bank.3 12
Among those positions that courts have determined to be subject
to patronage dismissals are assistant district attorney, 31 3 city solici298. See Elrod v. Burns, 427 U.S. 347 (1976); see also supra notes 68-84 and accompanying
text (discussing Elrod v. Burns).
299. See Elrod v. Burns, 427 U.S. 347 (1976); see also supra notes 68-84 and accompanying
text.
300. See Barnes v. Bosley, 745 F.2d 501, 508 (8th Cir. 1984) (holding that deputy court
clerk and supervisor were discharged for political reasons, and that political affiliation was not
requirement for positions), cert. denied, 471 U.S. 1017 (1985).
301. Id.
302. See Gannon v. Daley, 561 F. Supp. 1377, 1386 (N.D. Il. 1983) (stating that issue of
whether position of administrative assistant to state's attorney office was political precluded
granting summary judgment for defendant).
303. See supra notes 85-99 and accompanying text (describing Branti v. Finhel).
304. See Layden v. Costello, 517 F. Supp. 860, 862-63 (N.D.N.Y. 1981) (holding that government's interest in better communication did not justify dismissal of social services department attorney on political grounds).
305. See Tavano v. Niagara County, 621 F. Supp. 345, 349-50 (W.D.N.Y. 1985) (noting
that dismissal of assistant county attorney in family court was not shown to be politically motivated but stating that political affiliation is not required for effective performance of county
attorney in Family Court).
306. See DeLaCruz v. Pruitt, 590 F. Supp. 1296, 1301-02 (N.D. Ind. 1984) (stating that
defendant failed to show that supervisor in branch of county auditor's office would have been
discharged regardless of political beliefs, and that discharge was mostly due to supervisor's
political association).
307. See Parker v. Wallace, 596 F. Supp. 739, 74446 (M.D. Ala. 1984) (holding that
county license inspector's first amendment rights were violated by dismissal).
308. See Savage v. Commonwealth, 475 F. Supp. 524, 536-37 (E.D. Pa. 1979) (noting that
policy against political activity by public employees had not been relayed to dismissed liquor
control board hearing examiner), aff'd, 620 F.2d 289 (3d Cir. 1980).
309. See Gibbons v. Bond, 668 F.2d 967, 968-69 (8th Cir. 1982) (holding that branch
manager could not be dismissed on purely political grounds).
310. See Furlong v. Gudknecht, 808 F.2d 233, 239 (3d Cir. 1986) (noting tht party affiliation was not requirement for efficient performance of second deputy recorder of deeds
position).
311. See Crisp v. Bond, 536 F. Supp. 137, 141 (W.D. Mo. 1982) (prohibiting dismissal of
assistant director of motor vehicle department).
312. See DeChoudens v. Government Dev. Bank, 801 F.2d 5, 8-10 (1st Cir. 1986) (en
banc) (disallowing demotion of senior vice president of Puerto Rican Development Bank on
basis of political motivation), cert. denied, 481 U.S. 1013 (1987).
313. See Livas v. Petka, 711 F.2d 798, 800-01 (7th Cir. 1983) (holding that dismissal of
assistant district attorney and assistant attorney was not politically motivated and that even if
it had been politically motivated, employee could not obtain relief; Mummau v. Ranck, 531 F.
Supp. 402, 405 (E.D. Pa. 1982) (stating that district attorney's authority over personnel in his
office is not limited to those holding policymaking positions).
1989]
PATRONAGE DISMISSALS
tor and assistant solicitor,3
14
city corporation counsel, 31 5 assistant
deputy city attorney, 3 17 assistant city attorney,3 18
state
town solicitor and assistants, 31 9 workers' compensation law
judge,3 20 legal assistant to clerk of the circuit court's office, 32 1 deputy sheriff (in small department), 3 22 trial judge's bailiff,3 23 coordinator for pre-trial services, 3 24 police captain, 32 5 governor's editing
assistant, 3 26 executive secretary in the office of cultural affairs,3 2 7
personal secretary,3 28 confidential secretary to the director of
county correctional facility, 3 29 fee agent, 330 political advisor, 331 regional director of Rural Housing Administration,3 3 2 assistant director of public information, 33 3 first deputy commissioner of water
attorney, 3 16
314. See Ness v. Marshall, 660 F.2d 517, 520-22 (3d Cir. 1981) (holding that city solicitor
and assistant solicitor had policymaking duties, and therefore could be dismissed on political
grounds).
315. See Bavoso v. Harding, 507 F. Supp. 313, 316 (S.D.N.Y. 1980) (holding that consideration of city corporation counsel's political association was permissible).
316. See supra note 313 (discussing Livas v. Pelka).
317. See Newcomb v. Brennan, 558 F.2d 825, 829 (7th Cir. 1977) (holding that city attorney's interest in requiring loyalty from employees overrode deputy city attorney's first amendment rights).
318. See Finkelstein v. Barthelmy, 678 F. Supp. 1255, 1261 (E.D. La. 1988) (holding that
mayor and city attorney could dismiss assistant city attorney based on his opposition to bill
supported by mayor or to make plaintiff's position available for political supporter of mayor).
319. See Montaquila v. St. Cyr, 433 A.2d 206, 211 (R.I. 1981) (holding that two solicitor
and assistants positions were filled at pleasure of town manager and solicitor respectively).
320. See Garretto v. Cooperman, 510 F. Supp. 816, 818-19 (S.D.N.Y.) (holding that reappointment of workers compensation law judge may be denied due to political reasons), af'd,
794 F.2d 676 (2d Cir. 1984).
321. See Bauer v. Bosley, 802 F.2d 1058, 1068 (8th Cir. 1986) (stating that legal assistant
to clerk of circuit court's office was confidential in nature and subject to dismissal based on
political reasons).
322. See McBee v. Jim Hogg County, 703 F.2d 834 (1983), vacated and remanded, 730 F.2d
1009, 1013 (5th Cir. 1984) (holding that original opinion must be reconsidered in light of
Connick v. Myers, 461 U.S. 138 (1983); original opinion provided that because deputy sheriff
had done more than merely hold abstract political thoughts, state's burden in establishing
permissibility of dismissal depended on nature of employee's expression).
323. See Balogh v. Charron, 855 F.2d 356, 356 (6th Cir. 1988) (stating that because of trial
judge's bailiff's confidential position, support for trial judge's election opponent was grounds
for dismissal).
324. See Savage v. Gorski, 850 F.2d 64, 68-69 (2d Cir. 1988) (refusing to grant pretrial
release services coordinator injunction against dismissal).
325. SeeJoyner v. Lancaster, 553 F. Supp. 809, 817-18 (M.D.N.C.) (holding that divergent
political beliefs between police captain and sheriffhampered captain's ability to fulfill duties),
cert. denied, 484 U.S. 830 (1982).
326. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 325 (1st Cir. 1987).
327. Id.
328. Id. at 325 (holding that personal secretaries may work with confidential documents
and thus are subject to dismissal on political grounds).
329. See Savage v. Gorski, 850 F.2d 64, 68-69 (2d Cir. 1988).
330. Sweeney v. Bond, 669 F.2d 542, 546 (8th Cir. 1982) (holding that fee agents were
not public employees and therefore not protected, and maintaining that even if they were
protected, political affiliation would be proper requirement).
331. See Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 325 (1st Cir. 1987).
332. See Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525, 528-29 (1st Cir. 1987).
333. See Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), aff'd, 829 F.2d 30 (3d Cir. 1987).
46
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
department, 3 34 senior citizens' coordinator, 335 deputy parks com3 3 7 sumissioner,3 36 state director of Farmers Home Administration,
perintendent of employment for park district,33 8 director of
administration for environmental quality board, 339 second in command in water department, 340 regional director of General Services
Administration, 3 4 ' director of drug abuse services,3 4 2 first vice president of housing bank and finance agency,3 43 director of city social
services agency,3 44 and first deputy services officer for county veter345
ans service agency.
The two most unpredictable decisions in both these listings involve the position of attorney. That position's categorization suggests the difficulties facing public employers who are sincere in their
desire to retain employees with constitutionally protected positions,
but who, nonetheless, are eager to bring in their own teams. Because the Supreme Court's decision in Branti validated the constitutional protection afforded assistant public defenders, 34 6 while
expressing no opinion as to the permissibility of dismissal of an assistant prosecutor on political grounds, 34 7 all circuit court decisions-and almost all other court decisions-involving attorneys in
334. See Tomczak v. City of Chicago, 765 F.2d 633, 641-43 (7th Cir. 1985); see also supra
notes 220-29 and accompanying text (discussing Tomczak).
335. See Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455 U.S. 1021
(1982); see also supra notes 215-19 and accompanying text (discussing Nekohly).
336. See Ecker v. Cohalan, 542 F. Supp. 896, 903 (E.D.N.Y. 1982) (stating that position of
deputy parks commissioner is major political appointment).
337. See Brunton v. United States, 518 F. Supp. 223, 237-38 (S.D. Ohio 1981) (stating that
defendant had shown that political affiliation was needed for efficient administration of position of state director of Farmers Home Administration).
338. See Shakman v. Democratic Org., 722 F.2d 1307, 1309 (7th Cir.), cert. denied, 464 U.S.
916 (1983).
339. See Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1260-61 (1st Cir. 1987)
(holding that public official enjoyed qualified immunity from civil suit by environmental quality board's director for administration).
340. See Tomczak v. City of Chicago, 765 F:2d 633 (7th Cir. 1985); see also supra notes 22029 and accompanying text (discussing Tomczak).
341. See Roman Melendez v. Inclan, 826 F.2d 130, 135 (1st Cir. 1987) (holding that position of regional director of Federal General Services Administration was related to political
concerns and affiliation).
342. See McBride v. Griffin, 62 A.D.2d 520, 522, 405 N.Y.S.2d 353, 356 (N.Y. App. Div.
1978) (stating that director of drug abuse services held high position within city government).
343. See Goyco de Maldonado v. Rivera, 849 F.2d 683, 689 (1st Cir. 1987) (holding that
first vice president of Puerto Rican Housing Bank and Finance Agency's superior was immune
from damage action by first vice president).
344. See Ray v. City of Leeds, 837 F.2d 1542 (1 lth Cir. 1988); see also supra notes 272-76
and accompanying text (discussing Ray).
345. See Savage v. Gorski, 850 F.2d 64 (2d Cir. 1988); see also supra notes 149-56 and
accompanying text (discussing Savage).
346. See supra notes 85-98 and accompanying text (discussing Branti v. Finkel).
347. See Branti v. Finkel, 445 U.S. 507, 519 n.13 (1980) (suggesting that no position is
taken as to permissibility of terminating assistant prosecutor on political grounds because that
position entails broad public responsibilities).
1989]
PATRONAGE DISMISSALS
47
government service, other than public defenders, have held that
Elrod/Branti do not protect those positions.3 48 Nevertheless, the
United States District Courts for the Western District of New York
and the Northern District of New York have held, respectively, that
an assistant county attorney in family court,3 49 and an attorney for
the department of social services 350 are protected from patronage
dismissals under Elrod/Branti. Moreover, in contrast to the Seventh
Circuit's decision that, in carrying out one's duties, an assistant state
attorney may make some decisions that will actually create policy, 35 1
the District Court for the Western District of New York held that an
assistant county attorney is not a policymaker even though the position entails considerable latitude in handling caseloads, little day-today supervision, and no guidelines as to case management.3 52 Similarly, though the Seventh Circuit found that an important public interest existed in having assistant state attorneys be loyal to their
employers,3 5 3 the District Court for the Western District of New
York remarked that even if an assistant county attorney were a policymaker, party loyalty was still irrelevant to the performance of em3 54
ployment duties.
Thus, a newly elected official wanting to employ his or her supporters may face a lawsuit if the official attempts to replace any outgoing party employee other than the most high-ranking
policymakers or confidants. Few deterrents exist to dissuade a disgruntled former employee affiliated with the opposition party from
filing a section 1983 suit3 55 alleging an unconstitutional patronage
dismissal.3 56 Furthermore, even if a court eventually vindicates the
348. See supra notes 313-19 and accompanying text (discussing cases involving dismissal
on political grounds of government attorneys other than public defenders).
349. See Tavano v. County of Niagara, 621 F. Supp. 345, 349-50 (W.D.N.Y. 1985) (holding
that assistant county attorney in family court is not policymaker and that defendants had failed
to demonstrate that political affiliation is properly required for efficient administration of
post).
350. See Layden v. Costello, 517 F. Supp. 860 (N.D.N.Y. 1981) (finding that social services
department attorney was dismissed solely for political reasons, in violation of Constitution).
351. See Livas v. Petka, 711 F.2d 798, 801 (7th Cir. 1983) (holding that defendant's loss of
confidence in assistant state attorney, regardless of reasons, was permissible grounds for
dismissal).
352. See Tavano, 621 F. Supp. at 349 (noting that assistant county attorney had limited
discretion).
353. See Livas, 711 F.2d at 801 (holding that public has legitimate interest in efficiency of
system of justice requiring conformity by assistant prosecutor to general policies set by
prosecutor).
354. See Tavano, 621 F. Supp. at 350.
355. See 42 U.S.C. § 1983 (1982) (providing for private cause of action for injury caused
by deprivation of constitutional rights under color of law).
356. Rule 11 of the Federal Rules of Civil Procedure prohibits the bringing of a suit in
federal district court unless it is "warranted by existing law." FEn. R. Civ. P. 11. Courts have
been reluctant, however, to issue sanctions in areas of the law which are not well settled.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
official's decision to dismiss, the legal costs to the public and the
disruptions to the government may still be considerable.
V.
RELATED ISSUES
A.
Varying the Facts
The Elrod/Branti decisions concern employees dismissed solely because of their political affiliation. 357 Clearly connected to these decisions are cases involving dismissals based not only on an
employee's political affiliation, but also on other factors as well. 35 8
This section of the Article addresses the issues that arise when the
facts of the case indicate that the government employee was dismissed for other reasons in addition to political affiliation. In these
mixed motive cases, courts have applied the test set forth in the
Supreme Court's decision, Mount Healthy City School District Board of
Education v. Doyle, 35 9 to determine the constitutionality of such
dismissals.
In Mount Healthy, the Court held that a decision to dismiss or rehire a government employee cannot be based on that employee's
constitutionally protected activity. 3 60 The Court in Mount Healthy
formulated a two-part test: first, the former employee must show
that his or her constitutionally protected conduct was a "substantial" or "motivating factor" in the decision not to rehire; second,
upon such a demonstration by the employee, the employer/defendant has the opportunity to prove by a preponderance of the evidence that the employer would have decided not to rehire even if
Cavanagh, Developing Standards under Amended Rule 11 of the Federal Rules of Civil Procedure, 14
HOFSTRA L. REV. 499, 530 (1986). In addition, the employee's party, which has just been
ousted from office, may not be adverse to supplying legal counsel for such a suit. If the employee wins, the court may award attorney's fees, see 42 U.S.C. § 1988 (1982), and generally
does so. See Dawson v. Patrick, 600 F.2d 70, 79-80 (7th Cir. 1979) (noting that although
awarding of attorney's fees was at court's discretion, that discretion was narrow); Parker v.
Wallace, 596 F. Supp. 739, 747 (M.D. Ala. 1984) (holding that § 1983 entitles successful
plaintiffs to attorney's fees in suits for improper dismissal based on political reasons).
357. See supra notes 68 & 85 (outlining facts of Elrod and Branti decisions).
358. See, e.g., Laskaris v. Thornburgh, 733 F.2d 260, 264-66 (3d Cir.) (finding political
affiliation not substantial factor in termination), cert. denied, 469 U.S. 886 (1984); Nekolny v.
Painter, 653 F.2d 1164, 1168-69 (7th Cir. 1981) (holding that political affiliation was one
factor in termination), cert. denied, 455 U.S. 1021 (1982); Landry v. Farmer, 564 F. Supp. 598,
604-06 (D.R.I. 1983) (determining that efficiency, rather than politics, was motivation for termination); Goldberg v. Village of Spring Valley, 538 F. Supp. 641, 644-46 (S.D.N.Y. 1982)
(applying Mount Healthy standard); Farkas v. Thornburgh, 493 F. Supp. 1168, 1174-78 (E.D.
Pa.) (holding that dismissals were based on merit rather than politics), aff'd, 633 F.2d 209
(1980); O'Leary v. Shipley, 313 Md. 189, 196-206, 545 A.2d 17, 20-25 (1988) (discussing why
Mount Healthy test, rather than Elrod/Branti test, should apply).
359. 429 U.S. 274 (1977).
360. Mount Healthy City School Dist. Rd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977).
1989]
PATRONAGE DISMISSALS
the employee had not engaged in the protected conduct.3 6 1 Thus, if
the former employee alleges that he or she was unconstitutionally
dismissed because of political affiliation, then the employer/defendant may rebut the allegation by demonstrating that, notwithstanding
the employee's political affiliation, the employee would have been
discharged for other permissible reasons.3 6 2 Such reasons could include incompetence or the need to decrease the budget of the employer/defendant.3 63 Alternatively, the employer/defendant may
rebut the allegations under Elrod/Brantiby demonstrating that political affiliation was a necessary requirement for effective job
3 64
performance.
The two-part test of Mount Healthy was considered but rejected in
Ecker v. Cohalan.3 6 5 The district court reasoned that a decision based
on Elrod/Brantiprovided a more important delineation of the rights
and powers of employees and employers. 3 6 6 Specifically, the court
asserted that public employees' legitimate rights and elected officials' powers are chilled when uncertainty exists as to whether a particular position is subject to a valid patronage dismissal.3 67
Therefore, the court held that the judiciary is obligated to articulate
a clear and understandable standard.3 68
Another group of related cases involves dismissals based on political activity rather than mere political affiliation. The Fifth Circuit
interprets Elrod/Branti to apply only when the plaintiff is dismissed
solely because of private political thoughts.3 6 9 When the government employee participates in political activities-such as displaying
bumper stickers or attending political rallies-the court finds that
the appropriate method for determining the constitutionality of a
dismissal is the balancing test that the Supreme Court outlined in
Pickering v. Board of Education3 7 0 and Connick v. Myers. 37 1 This test
requires that the employee's first amendment rights be balanced
361. Id. at 287.
362. Id.
363. Id.
364. See supra notes 96-98 and accompanying text (discussing Elrod/Branti test).
365. 542 F. Supp. 896 (E.D.N.Y. 1982).
366. See Ecker v. Cohalan, 542 F. Supp. 896, 900-01 (E.D.N.Y. 1982).
367. Id.
368. Id.
369. See McBee v.Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984) (noting absence
of "weighing" language in Elrod and Branti).
370. 391 U.S. 563 (1968). In Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), a
school teacher was dismissed for publishing in a newspaper a letter critical of the Board of
Education. The Court held that the dismissal was an unconstitutional violation of the
teacher's first amendment speech right. Id. at 574-75.
371. 461 U.S. 138 (1982). Connick v. Myers, 461 U.S. 138, 142 (1982), involved the dismissal ofan assistant district attorney who had opposed being transferred, and who had circulated a questionnaire concerning office grievances, morale, and pressure to do political work.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
against the employer's interest in government efficiency. 3 7 2 In application, the test requires a case-by-case comparison of the nature
of the employee's actions with the nature of the employer's responsibilities. 3 73 The Fifth Circuit, in applying the balancing test in McBee v. Jim Hogg County, 374 noted several important factors: (1) the
necessity of "close working relationships" to fulfill a particular government function;3 7 5 (2) the time, place, and manner of the political
activity;3 7 6 (3) the disruption caused by the activity; 3 7" and (4) the
activity's relationship to "public concerns." 3 7 8 In 1988, the Fifth
Circuit reiterated that Elrod/Brantiis inapplicable when an employee
37 9
is dismissed for active political participation.
Similarly, the Court of Appeals of Maryland, in O'Leary v.
Shipley, 38 0 wrote an extensive explanation of the differing applications of Mount Healthy, Pickering, and Elrod/Branti.38s The court concluded that the narrow and rigid Elrod/Brantitest is appropriate only
when political patronage is the sole motive for discharge, and not
38 2
when overt conduct by the fired worker is involved.
The availability of these varying tests and the required inquiry
into the specific facts of each case further complicates the task of the
newly elected government official trying to carry out his or her duties without infringing on constitutional rights.
B.
Due Process Claims
Plaintiffs, who claim a violation of their first amendment associational rights under Elrod/Branti,often also assert a violation of their
fourteenth amendment due process rights. 38 3 In Board of Regents v.
The Court held that the employee's rights were not violated when she was dismissed because
her actions undermined her employer's ability to run his office. Id. at 154.
372. Picketing, 391 U.S. at 568 (holding that courts should balance interests of employee,
as citizen, in commenting on matters of public concern against interest of state, as employer,
in promoting efficiency of public services it performs through its employees).
373. Connick, 461 U.S. at 151-54 (stating that courts should examine whether employee's
action impeded ability to perform responsibilities needed for efficient and successful operation of office).
374. 730 F.2d 1009 (5th Cir. 1984).
375. McBee v.Jim Hogg County, 730 F.2d 1009, 1017 (5th Cir. 1984).
376. Id.
377. Id.
378. Id. at 1016-17.
379. Matherne v. Wilson, 851 F.2d 752, 757-59 (5th Cir. 1988) (holding Elrod/Brantiinapplicable where political activity, rather than political belief alone, was at issue).
380. 313 Md. 189, 545 A.2d 17 (1988).
381. O'Leary v. Shipley, 313 Md. 189, 197-205, 545 A.2d 17, 21-25 (1988).
382. O'Leary, 313 Md. at 196-206, 545 A.2d at 20-25 (noting that when there are mixed
motives for discharge, Elrod/Branti should not be used).
383. See, e.g., Dickeson v. Quarberg, 844 F.2d 1435, 1437-39 (10th Cir. 1988) (rejecting
due process claim); Hawkins v. Steingut, 829 F.2d 317, 321-22 (2d Cir. 1987) (finding no
property interest); Abraham v. Pekarski, 537 F. Supp. 858, 866-67 (E.D. Pa. 1982) (requiring
1989]
PATRONAGE DISMISSALS
Roth,3 8 4 the Supreme Court evaluated a dismissed employee's various due process claims. 38 5 First, the Court analyzed the employee's
liberty interest and held that in declining to rehire a teacher, the
state did not violate the due process clause because it did not limit
the employee from obtaining other employment or make any
charges that were damaging to the employee's reputation.3 8 6 The
Court also held that the state had not deprived the teacher of property without due process because any property interests which exist
in employment are created by state statutes, rules, or policies, 3 8 7
388
and no such entitlement was created in this case.
Accordingly, subsequent lower court decisions analyzing due process claims brought in Elrod/Branti-typecases have been based upon
interpretation of local law. 389 For example, the Tenth Circuit, in
rejecting a dismissed head jailer's and special deputy's due process
property claims, relied on Wyoming law granting sheriffs broad authority to appoint and remove deputies andjailers.3 9 0 Similarly, the
Second Circuit interpreted the New York Public Officers Law to
mean that a workers' compensation referee has no property interest
in the position upon expiration of one's term of office.3 9 1 In contrast, the United States District Court for the Eastern District of
Pennsylvania held that under Pennsylvania's Local Agency Law and
the Bristol Township Managers Ordinance, the dismissed Director
of Roads and Public Property had an "enforceable expectation" of
continued employment because he could not be discharged without
just cause.3 92 These cases suggest that, when evaluating an employee's rights under Elrod/Branti,government employers must also
be aware of whether local laws provide their employees with property interests in their jobs. If the laws do provide this right, then a
government employee may not be fired at will, but must be given
notice and the opportunity for some type of hearing.3 9 3
"legitimate expectation" of continued employment as prerequisite to fourteenth amendment
property claim), aft'd, 728 F.2d 167 (3d Cir.), cert. denied, 467 U.S. 1242 (1984).
The fourteenth amendment provides in pertinent part, "nor shall any State deprive any
person of life, liberty or property, without due process of law." U.S. CONST. amend. XIV, § 1.
384. 408 U.S. 564 (1972).
385. Board of Regents v. Roth, 408 U.S. 564, 573 (1972).
386. Id.
387. Id. at 577-78.
388. Id. at 578.
389. See supra note 383 and accompanying text (citing cases analyzing due process claims).
390. See Dickeson v. Quarberg, 844 F.2d 1435, 1438-39 (10th Cir. 1988). The Tenth Circuit has also held that no liberty interest violation exists when no public disclosure of the
reason for the discharge occurs. Id. at 1439.
391. See Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987).
392. See Abraham v. Pekarski, 537 F. Supp. 858, 867-69 (E.D. Pa. 1982), aft'd, 728 F.2d
167 (3d Cir.), cerl. denied, 467 U.S. 1242 (1984).
393. Cf. Bell v. Burson, 402 U.S. 535, 542 (1971) (holding that notice and opportunity for
52
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
C. Qualified Immunity
In cases in which a former employee alleges a violation of his or
her constitutional rights because of a patronage dismissal, the employee may sue both the local governing body for which he or she
worked and the discharging individual in both official and individual
capacities.8 94 Moreover, though state governments are wholly immune from such suits,3 9 5 local governments do not receive such immunity.3 9 6 Additionally, the governmental unit and its
representatives are not entitled to qualified immunity based on a
claim of good faith. 3 9 7 Nevertheless, the public official, in his or her
individual capacity, may be entitled to qualified immunity from a
damage suit.3 98 This fact adds yet another consequence for a government official to consider when deciding whether dismissing an
99
employee is constitutionally permissible.3
The Supreme Court finds that government officials who perform
discretionary functions may receive qualified immunity from damages as long as their conduct does not violate "clearly established
statutory or constitutional rights" of which a reasonable person
would have known at the time the conduct occurred. 40 0 The Court
also holds that to be clearly established, a right must be sufficiently
hearing is required before state may extinguish property interest); Boddie v. Connecticut, 401
U.S. 371, 379-80 (1971) (outlining elements of due process).
394. Generally, a claim against a person in his official capacity states a claim against the
governmental entity of which the person is an agent. See Monell v. Department of Social
Services, 436 U.S. 658, 690 n.55 (1978) (holding that local governments are not entitled to
absolute immunity).
395. See Quern v.Jordan, 440 U.S. 332, 339-41 (1979) (stating that such suits are barred
by the eleventh amendment). Suits barred include all those brought under 42 U.S.C. § 1983,
which otherwise provides for a private cause of action for constitutional deprivations under
color of law. 42 U.S.C. § 1983 (1982).
396. Monell, 436 U.S. at 690-91.
397. Owen v. City of Independence, 445 U.S. 622, 638 (1980). It is also well-established
that defendants have no immunity with respect to a plaintiff's claim for injunctive relief-such
as reinstatement. See Wood v. Strickland, 420 U.S. 308, 314 n.6 (1975) (holding that even if
defendants receive immunity from damages, equitable relief is not ordinarily barred as well).
398. See infra notes 400-01 and accompanying text (outlining test for grant of qualified
immunity).
399. It must be remembered, however, that to obtain the benefits of qualified immunity,
the government official need only show an objective reasonable belief that the employee
could be dismissed because of political affiliation; the official need not show that the belief was
correct. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (stating that if official can
prove that official neither knew nor should have known that employee could not be constitutionally dismissed, then dismissal will be upheld).
400. Id. at 818; see also Davis v. Scherer, 468 U.S. 183, 190-97 (1984) (discussing contours
of immunity defense). The reason for allowing this affirmative defense is to strike a balance
between the protection of citizens' constitutional rights and public officials' effective performance of their duties. The qualified immunity doctrine recognizes that officials can act decisively only if they can reasonably anticipate when they may be liable for damages, Davis, 468
U.S. at 195.
The Court also finds that even if the law is clearly established, the employer/official may
1989]
PATRONAGE DISMISSALS
clear that a reasonable official would understand that his or her actions violate the employee's right-that is, "the unlawfulness must
'40 1
be apparent.
Under this standard, the employer/official must consider where
on the policymaking/non-policymaking continuum of jobs the one
at issue would lie. 40 2 Courts have recognized that it may be difficult
for a government official to determine whether party affiliation is an
appropriate job requirement in advance of a court decision. 40 3 As
previously indicated, courts have generally proceeded on a case-bycase basis in determining whether a particular position falls within
the Elrod/Branti exception. 40 4 Presumably, the employer/official
must match the position for which a discharge is considered with a
similar position 4° 5 about which there existed court decisions in his
or her district or circuit. 40 6 Except for jobs at the extreme ends of
the continuum, 40 7 such a task would be guesswork at best, and impossible at worst. 40 8
This difficulty underscores
the Supreme
still prevail in his or her qualified immunity defense if the employer/official can prove that "he
neither knew nor should have known of the relevant legal standard." Harlow, 457 U.S. at 819.
Finally, the Court has included within an official's discretionary functions-as opposed to
his or her ministerial functions-any acts for which the law "fails to specify the precise action
the official must take in each instance." Davis, 468 U.S. at 197 n.14.
401. Anderson v. Creighton, 483 U.S. 635, 639-40 (1987) (holding that right which official is alleged to have violated must have been clearly established in particularized and relevant sense).
402. See supra notes 105-08 and accompanying text (discussing permissible range of employers' discretion under Elrod/Branti test).
403. See Figueroa-Rodriguez v. Aquino, 863 F.2d 1037, 1040-43 (Ist Cir. 1988) (holding
that nature of position was not clearly established); Hawkins v. Steingut, 829 F.2d 317, 320
(2d Cir. 1987) (noting that Branti does not lend itself to automatic application); De Abadia v.
Izquierdo Mora, 792 F.2d 1187, 1191-98 (1st Cir. 1986) (discussing lack of clarity). But see
Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987) (concluding that in 1982, reasonably active
politician would have believed that it would be impermissible to demote employee in retaliation for political speech and/or associations).
404. See supra notes 105-280 and accompanying text (reviewing circuit courts' varying application of Branti standard); supra notes 281-356 and accompanying text (discussing protected and unprotected jobs).
405. The First Circuit, for example, has held it must be "clearly established that employees in the particularpositions at issue ...were protected from patronage dismissal." MendezPalou v. Rohena-Betancourt, 813 F.2d 1255, 1259 (1st Cir. 1987) (emphasis in original); see
also Conner v. Reinhard, 847 F.2d 384, 388 (7th Cir. 1988) (stating that "[a]lthough we do not
require cases involving the exact fact pattern at bar, case law in a closely analogous area is
essential to permit us to conclude that the constitutional right was clearly established at the
time of the alleged violation").
406. But see Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987) (finding that "a district
court decision does not clearly establish the law even of its own circuit, much less that of other
circuits").
407. See Bever v. Gilbertson, 724 F.2d 1083, 1088 (4th Cir.) (holding that as early as 1981,
it was clearly established that lower echelon employees of West Virginia's Department of
Highways had a constitutional right not to be discharged solely because of political affiliation),
cert. denied, 469 U.S. 948 (1984); see alsoJuarbe-Angueira v. Arias, 831 F.2d 11, 14 (1st Cir.
1987) (stating that defendants will normally enjoy qualified immunity when upper-level, managerial-type employees are dismissed).
408. See Goyco de Maldonado v. Rivera, 849 F.2d 683, 684-89 (1st Cir. 1988). In consid-
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
Court's rationale for providing immunity, namely, that for effective
government, officials need a climate in which they can act decisively,
without fear of retaliation. 40 9 As the Court states:
[O]fficials are subject to a plethora of rules, "often so voluminous,
ambiguous, and contradictory, and in such flux that officials can
only comply with or enforce them selectively." .
.
. In these cir-
cumstances, officials should not err always on the side of caution.
"[O]fficials with a broad range of duties and authority must often
act swiftly and firmly at the risk that action deferred will be futile
4 10
or constitute virtual abdication of office."
This opinion is particularly meaningful in the context of a newly
elected, less experienced official who has just ousted an incumbent
and who is eager to implement his or her promise to the voters in
order to distinguish the new administration from the prior one.
D.
Remedies
Government employees, who have succeeded in their suits, have
received injunctive relief preventing their dismissal for political reasons when they have proven that they were going to be dismissed
because of their poitical affiliation. 41 1 Former employees successfully alleging that their dismissals were based on patronage have
been reinstated with full back pay and benefits including health,
41 2
pension, and credit for past service.
ering whether it was clearly established law that political affiliation was an appropriate requirement for the first vice president of Puerto Rico's Housing Bank and Finance Agency, the
court in Goyco de Maldonado compared the position to that of the senior vice president for
finance of the Puerto Rico Government Development Bank. Although the court held in De
Choudens v. Government Dev. Bank of Puerto Rico, 801 F.2d 5, 8-10 (Ist Cir. 1986)(en
banc), cert. denied, 481 U.S. 1013 (1987), that political affiliation was not an appropriate requirement for the latter position, it held in Goyco de Maldonado that the positions were sufficiently dissimilar that the law was not clearly established for the former position. Goyco de
Maldonado, 849 F.2d at 685-86; see also Roure v. Hernandez Colon, 824 F.2d 139, 141 (1 st Cir.
1987) (holding that it was not clearly established that press office translator could not be
discharged for political reasons); Doyle v. Dukakis, 699 F. Supp. 357, 359-60 (D. Mass. 1988)
(holding that it was not clearly established in 1985 that special assistant to the executive director of Massachusetts Housing Finance Agency could not be discharged for political reasons);
DeLaCrnz v. Pruitt, 590 F. Supp. 1296, 1307-08 (N.D. Ind. 1984) (holding that in late 1978early 1979 it was clearly established that supervisor of branch of county auditor's office could
not be discharged for political reasons).
409. See Davis v. Scherer, 468 U.S. 183, 195-96 (1984) (outlining Supreme Court's
rationale).
410. Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 246 (1976)).
411. See Gibbons v. Bond, 668 F.2d 967, 968 (8th Cir. 1982) (upholding injunction
prohibiting governor and director of state revenue department from dismissing revenue department branch managers because of political affiliation); Paradise v. O'Laughlin, 621 F.
Supp. 694, 698 (W.D.N.Y. 1984) (sustaining injunction prohibiting Mayor and City Council
from dismissing city clerk on basis of politics); Layden v. Costello, 517 F. Supp. 860, 863
(N.D.N.Y. 1981) (upholding injunction prohibiting county social services commissioner from
dismissing department attorney on basis of political affiliation).
412. See Barnes v. Bosley, 568 F. Supp. 1406, 1413 (E.D. Mo. 1983) (reinstating employ-
1989]
PATRONAGE DISMISSALS
Prevailing plaintiffs have also been awarded compensatory damages 41 3 and attorney's fees. 4 14 Generally, however, plaintiffs have
been unsuccessful in their claims for punitive damages. 41 5 Punitive
damages are available only when the defendant has behaved recklessly, with evil intent or with callous indifference to the plaintiff's
constitutional rights-a difficult standard to meet. 4 16 Prevailing defendants can be awarded attorney's fees as well, if the suit can reasonably be described as frivolous. 4 17 Although such awards are
unusual, 418 they were granted in Ecker v. Cohalan,4 19 when Chief
Judge Weinstein held a claim by the county's Chief Deputy Commis4 20
sioner of Parks, Conservation and Recreation to be frivolous.
ees with full back benefits), rev'd on other grounds, 745 F.2d 501 (8th Cir. 1984), cert. denied, 471
U.S. 1017 (1985); Goodwin v. LaPolla, 589 F. Supp. 1423, 1435 (N.D.N.Y. 1984) (ordering
reinstatement of discharged carpentry inspector with retroactive salary, benefits, and no loss
of seniority); Parker v. Wallace, 596 F. Supp. 739, 746 (M.D. Ala. 1984) (denying immediate
reinstatement which would require displacement of innocent party, but requiring defendants
to offer plaintiff another job at comparable salary, if available, and to offer plaintiff prior job
when available).
413. See, e.g., Soderbeck v. Burnett County, 752 F.2d 285, 287 (7th Cir.) (providing jury
award of $33,375 in compensatory damages), cert. denied, 471 U.S. 1117 (1985), rev'd on other
grounds, 821 F.2d 446 (7th Cir. 1987); DeLaCruz v. Pruitt, 590 F. Supp. 1296, 1308 (N.D. Ind.
1984) (awarding compensatory damages, plus prejudgment interest, for lost wages, less wages
earned and unemployment compensation received); Layden v. Costello, 517 F. Supp. 860,
863 (N.D.N.Y. 1981) (permitting plaintiff to prove compensatory damages). But see Barnes,
568 F. Supp. at 1413 (denying claims for compensatory damages for alleged emotional distress because of failure of proof); Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir. 1981)
(denying compensatory damages for mental and emotional distress because of failure to
prove causation), cert. denied, 455 U.S. 1021 (1982).
414. See, e.g., Barnes, 568 F. Supp. at 1413 (ordering plaintiffs to submit affidavits for attorney's fees); DeLaCruz, 590 F. Supp. at 1309 (awarding attorney's fees computed by considering time spent on case, value of attorney's work based on local legal fees, as well as attorney's
abilities, reputation, and success in this case, and whether this case precluded attorney from
doing other legal work); Layden, 517 F. Supp. at 863 (awarding attorney's fees); see also Barrett
v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981) (permitting award of attorney's fees against
public treasury when named defendant is public official sued in official capacity).
Harceg v. Brown, 536 F. Supp. 125, 128-31 (N.D. Il1. 1982), contains an extensive explanation assessing the method to determine attorney's fees under a section 1983 suit.
415. See generally DeLaCruz, 590 F. Supp. at 1309 (denying punitive damages); Holly v. City
of Naperville, 571 F. Supp. 668, 673 (N.D. Ill. 1983) (dismissing claims against city and officials sued in official capacity, while suggesting plaintiff amend complaint to sue officials in
individual capacities); Layden, 517 F. Supp. at 863 (rejecting plaintiff's claims).
416. See Soderbeck v. Burnett County, 752 F.2d 285, 295 (7th Cir.) (rescinding jury award
ofpunitive damages), cert. denied, 471 U.S. 1117 (1985), rev'd on other grounds, 821 F.2d 446 (7th
Cir. 1987); DeLaCruz, 590 F. Supp. at 1309 (explaining standard); Holly, 571 F. Supp. at 673
(citing test as established in Smith v. Wade, 461 U.S. 30 (1983)).
417. See Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (per curiam). Hughes involved a prisoner who sued under 42 U.S.C. § 1983, after he was placed in isolation without a hearing for
violating prison rules. Id. at 7-8. The Court noted that although fees may be awarded in
frivolous or unreasonable actions, id. at 14 (citing Christiansburg Garment Co. v. EEOC, 434
U.S. 412 (1978)), in this case punishment would be inappropriate for one not represented by
counsel. Id. at 15.
418. See generally Soderbeck, 752 F.2d at 295 (finding plaintiff's claim not frivolous).
419. 542 F. Supp. 896 (E.D.N.Y. 1982).
420. Ecker v. Cohalan, 542 F. Supp. 896, 903 (E.D.N.Y. 1982). The Chief Deputy Commissioner was one of the highest paid officials in the county, one of the most powerful dis-
THE AMERICAN UNIVERSITY LAW REVIEW
VI.
[Vol.
39:11
RECOMMENDATIONS
Elrod and Branti demonstrate that a government employer/official
who dismisses an employee solely because of political affiliation
clearly violates the employee's constitutional right of freedom of association. 4 2 1 An exception exists, however, when political affiliation
is required for effective performance of the job, a standard that is
most often met when the job involves policymaking or confidential
42 2
duties.
Almost a decade after Branti, no reasonably competent government employer should be unaware of its dictates; however, the employer still may be unsure of its application to each position for
which the employer has responsibility. Lower court interpretations
of Elrod/Brantihave clarified those positions falling at either end of
the ministerial/policymaking continuum. 42 3 Thus, a newly elected
official seeking to have his or her administration make a smooth
transition into its new role must proceed with some sophistication.
The newly elected official and the official's transition team should
gather all job descriptions for non-civil service employees and categorize them into three groups along the Elrod/Branti continuum:
clearly ministerial, clearly policymaking/confidential, and those involving mixed functions. Individuals holding jobs in the clearly
ministerial category may not be dismissed merely because they are
affiliated with the outgoing party. 4 24 Dismissals of such individuals
for competency or budgetary reasons should be well-documented
before being implemented. In order to have sufficient time to peruse employment records and investigate financial considerations,
an official might prudently postpone the decision to discharge until
after the new administration takes office. Those holding jobs in the
clearly policymaking/confidential category may be dismissed simply
because they belong to the losing party, 42 5 as the new official will
want to have the policymaking team on board from the first day in
order to set the tone for the new administration.
pensers of patronage in the county, and his position entailed policymaking duties for which
political affiliation was an appropriate criterion. Id. at 902-03. The court concluded that
plaintiff's suit was "deliberately vexatious" and "motivate[d] by a desire to generate publicity
adverse to a political opponent." Id. at 903. Why the court would take the unusual step of
awarding attorney's fees to the defendants is suggested by its characterization of the plaintiff
as a "powerful professional politician in the role of policymaker and patronage dispenser in
County government." Id. at 904.
421. See supra notes 68-98 and accompanying text (reviewing Elrod and Branti).
422. Id.
423. See supra notes 109-280 and accompanying text (reviewing circuits' interpretations of
Branti).
424. Branti v. Finkel, 445 U.S. 507, 517 (1980).
425. Id.
1989]
PATRONAGE DISMISSALS
The mixed function category will be the largest and, by far, the
most problematic. The job descriptions should be analyzed to determine the duties for which political affiliation is an appropriate requirement for effective performance. Any reasons for discharge
other than political affiliation should be clearly documented before
the discharge is initiated. For example, if the employee participated
in political activities that might have disrupted the smooth operation
and efficiency of the office, evidence should be amassed which
would satisfy a Pickering/Connickbalancing test. 42 6 If an employee's
competency is doubted, there should be documentation which
would satisfy a Mount Healthy test.4 27 Thus, the record should show
how the transition team found the employee to be incompetent, as
compared to the superior qualifications of the person's replacement. 4 28 Before employees are terminated for budgetary reasons, a
financial plan should be available showing that decisions were made
irrespective of the political affiliations of affected employees. 4 29
Study and discussion of all these factors must occur before any talk
of terminations begins. Landry v. Farmer430 illustrates a sensible
method for a newly elected official to pursue before implementing
employee terminations. The plaintiffs, employees of the Rhode Island Secretary of State, alleged that they were dismissed because of
their political affiliation in violation of their first and fourteenth
amendment rights. 4 3 1 The defendant, Rhode Island's Secretary of
State, did not dismiss the plaintiffs until several weeks after taking
office. 43 2 To improve effectiveness and efficiency, she then had her
deputy develop a reorganization plan which eliminated some of the
plaintiffs' positions and redefined others. 43 3 Before formulating the
plan, the deputy reviewed the qualifications of all employees. 4 34 A
comparison of the backgrounds of the dismissed employees and
their replacements made it clear that the latter were better qualified
than the former. 4 35 The court concluded that though political considerations played a role in the hiring process for replacements, 4 3 6
426. See supra notes 370-79 and accompanying text (describing Pickering/Connickbalancing
test).
427. See supra notes 359-61 and accompanying text (explaining Mount Healthy test).
428. See generally Goodwin v. LaPolla, 589 F. Supp. 1423, 1430-31 (N.D.N.Y. 1984) (documenting plaintiff's shortcomings).
429. Id. at 1428, 1432-33.
430. 564 F. Supp. 598 (D.R.I. 1983).
431. Landry v. Farmer, 564 F. Supp. 598, 599 (D.R.I. 1983).
432. Id. at 600.
433. Id. at 600-01.
434. Id. at 602.
435. Id. at 603-04.
436. Id. at 603.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 39:11
"the need for changes, the qualifications of the respective parties,
and the study and consideration given to the problem belie the
' 43 7
plaintiffs' allegations.
Moreover, it would be prudent for the new official to have a record of campaign promises and acknowledged areas of disagreement
between the new official and the prior administration. Such a record would substantiate a defense that a particular position involved
duties for which political affiliation was an appropriate requirement
to implement the electorate's mandate.
Newly elected officials must remember that they are entitled to
establish governmental policy, but neither they nor their constituents can afford to have the constitutional rights of government employees ignored. The prudent official will study, consider, and
document before firing employees perceived to be political foes.
437.
Id. at 607.