Court of Appeal Strikes Down POBR Waiver, Awards $362,000 in Backpay

In Jaramillo v. County of Orange (November 8, 2011) 2011 WL 5338998, the Fourth District Court of Appeal awarded an assistant Sheriff  backpay because the County denied him a pre-termination administrative hearing.  The Court also voided his purported waiver of POBR rights.

Former Orange County Sheriff Mike Corona appointed Jaramillo as Assistant Sheriff after he had supported him during an election.  However, Jaramillo and the Sheriff’s relationship began to deteriorate when the Sheriff requested he participate in  illegal activities. Jaramillo became tired of covering for the Sheriff and reported the Sheriff’s illegal activities. The Sheriff then fired the him without providing him with a pre-termination hearing. After he was terminated, he was charged with misappropriation of public resources and perjury before a grand jury to which he plead no contest as part of a settlement agreement.

The County claimed Jaramillo waived his POBR rights when he signed two documents upon being appointed as Assistant Sheriff. Both documents contained provisions stating he was an “at-will” employee and he “could be released from his position at any time without notice.” Neither of the documents he signed made any reference to POBR. The Court determined the waivers were blanket waivers and undermined the purposes of POBR. The Court distinguished County of Riverside v. Superior Court, noting that case permitted only specified and narrow waivers of POBR rights.

The Court also found denying Jaramillo's right to a pre-termination hearing violated POBR, 14th Amendment due process, and Labor Code Section 1102.5 (on the basis the Assistant Sheriff had been fired for whistleblowing on the Sheriff’s illegal activities.) The Court awarded backpay from the date of Jaramillo's termination to the date he plead no contest to two state law felonies as well as injunctive relief in the form of amending the waivers for future management employees.

Ninth Circuit Sets Limits on "Policymaker Exception" to Public Employee First Amendment Protections

In Bardzik v. County Of Orange (Mar. 28, 2011) --- F.3d ---, Cal. Daily Op. Serv. 3692, the Ninth Circuit Court of Appeals clarified when the “policymaker exception” applies to public employees’ First Amendment claims. The case concerned Jeff Bardzik, a Lieutenant with the Orange County Sheriff’s Department. Lt. Bardzik was the Department’s Reserve Division Commander in 2005, in charge of 600 reserve deputies. Then he endorsed the incumbent Sheriff’s rival in an upcoming election. Shortly thereafter, the Sheriff allegedly retaliated by transferring him to a position in Court Operations where he only supervised three people. He was denied pay increases and promotional opportunities even after his transfer.

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.

Lieutenants are not automatically policymakers. Instead, whether the policymaker exception applies depends on nine factors: 1) breadth of responsibilities; 2) relative pay; 3) technical competence; 4) power to control others; 5) authority to speak for policymakers; 6) public perception; 7) influence on programs; 8) contact with elected officials; and 9) responsiveness to partisan politics. The Court also suggested a tenth factor, the ability to thwart the elected official’s agenda, was relevant to its analysis.

The Court applied these factors one-by-one to decide whether Lt. Bardzik counted as a policymaker when he was Reserve Division Commander. The Court held four of the factors favored Bardzik: he did not have a relatively high salary; he had to go through superiors before sending official memoranda to reserves; the public was unaware of his role; and it was unclear if he was responsive to partisan politics.

However, the Court found the other five factors warranted applying the policymaker exception. Engaging in a fact-intensive inquiry, the Court found Bardzik had broad discretion over the Reserve Division and often reported directly to the Sheriff. The Court also decided he had special skills and extensive authority over members of the Reserve division. Finally, the Court held Bardzik had significant influence over specific programs in the Division, a distinction the Court identified as “the most critical factor,” citing Walker v. City of Lakewood (9th Cir. 2001) 272 F.3d 1114, for authority. As a result, the Court decided the Sheriff was allowed to retaliate against Bardzik when he served as Division Commander.

The Court stressed, however, the retaliation crossed the line after the transfer to Court Operations. In Court Operations, Bardzik‘s job duties were limited to implementing, rather than making policy. As a result, the Court held his First Amendment rights prohibited continued retaliation for his political activity.

In his partial dissent, Judge Pregerson recast the facts and argued the evidence of Bardzik’s supervisory responsibilities as Division Commander did not support the majority’s conclusion he had significant control of others. Pregerson also questioned the majority’s reliance on Walker, arguing though “influence on programs” was the most critical factor in that case, the Court did not hold it would be in every case. As a result, the dissent contends, Bardzik was not a policymaker in either capacity.

Though the Court applied the "policymaker exception" on these facts, its holding is no victory for management. The holding sets a limit on "policymaker" retaliation where some retaliation renders the employee a non-policymaker. Thus, an elected official may quickly cross this line and incur liability with a series of retaliatory actions. Also, as Judge Pregerson’s dissent illustrates, whether the “policymaker exception” applies to a particular employee is a highly factual question which evades clear rank-based distinctions. Because this is a fact-intensive issue, employers will likely face significant burdens regardless of the ultimate outcome in litigation. Indeed, the Court heard Bardzik on an appeal from summary judgment after substantial discovery, press coverage and a District Court ruling for the employee.