Friday, February 24, 2012

Ninth Circuit Finds for Former OCSO Lieutenant on Political Retaliation Claims

In Hunt v. County of Orange (February 13, 2012) 2012 WL 432297, the Ninth Circuit found the Orange County Sheriff’s Department violated a lieutenant’s constitutional rights by demoting him for allegedly bringing discredit to the Department after he ran against former Orange County Sheriff Mike Carona.

A lieutenant with the Orange County Sheriff's Department ran for sheriff against the incumbent sheriff and lost. During the election the lieutenant made statements criticizing the incumbent's performance and accused the sheriff of corruption. After the election was over, the Department placed the lieutenant on paid administrative leave pending an investigation into his speech and conduct during the campaign and gave him notice of demotion for violation of department rules and for bringing discredit upon the department. The lieutenant then filed a claim against Carona alleging violations of his First and Fourteenth Amendment rights.

Normally, an elected official cannot retaliate against a public employee for his or her political beliefs or activities. However, the “policymaker exception” allows elected officials to appoint “some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for.” As a result, if an employee is a policymaker, an elected official can retaliate against him for political activity.

To decide whether this exception applied in this case, the court evaluated whether "the hiring authority can demonstrate party affiliation is an appropriate requirement for the effective performance of the public office involved." The court also noted "if an employee's private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield.”

The court found political considerations were not appropriate requirements for the lieutenant's job and found the lieutenant did not fall within the policymaker liability exception. However, the court found the sheriff had qualified immunity since the sheriff could have reasonably, but mistakenly, believed the employee’s demotion was not unconstitutional.