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.
Showing posts with label lieutenant. Show all posts
Showing posts with label lieutenant. Show all posts
Friday, February 24, 2012
Monday, April 18, 2011
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.
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.
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