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FIRING A MEMBER OF
By THOMAS W. KELTY, Chief Counsel, Illinois Municipal League and The Illinois Municipal League and its self-insuring program, the Risk Management Association, have historically received numerous inquiries, following municipal elections, concerning the ability of elected officials to terminate the employment of non-civil-service public employees. Those inquiries are often made prior to any action having been taken but from time to time are made after the responsible official has learned that he frequently can't fire an employee who opposes him, or after he has learned that he can't fire an employee because he is a member of a different political party or, to his great distress, after the responsible official has learned that he may have unwittingly created a situation which may result in his being the primary target in a time-consuming, stressful and expensive lawsuit. If the official considers the impact of terminating the employee only after the firing has been completed, then his concern may be too late. Elected officials frequently want the non-civil-service positions of their municipality to be occupied by members of the same political party with which the official is affiliated. This desire is based on reasons that have existed forever: "I want my own people," "I don't want someone here who opposed my election," "I don't want my opponents looking over my shoulder at everything I do," etc. These reactions are understandable, but are they sufficient for the termination of an employee? There is a good chance that such reasoning will not provide a proper basis for termination. Public officials must always consider the basis for discharging an unprotected employee prior to taking any action. It had been the practice of the Cook County Sheriff, when he assumed office from a sheriff of a different political party, to replace non-civil-service employees of the Sheriff's Office with members of his own party when the existing employees lacked or failed to obtain proper support from, or failed to affiliate with, that party. In December, 1970, the Sheriff of Cook County, a Republican, was replaced by Richard Elrod, a Democrat. At that time, the non-civil-service employees were affiliated with the Republican party and not covered by any regulation protecting them from arbitrary discharge. When Sheriff Elrod assumed his office, the unprotected individuals were fired or threatened with firing from their jobs solely because they did not support and were not members of the Democratic party and failed to obtain the sponsorship of one of the leaders of the Democratic party, John Burns and others filed a lawsuit against Sheriff Elrod and others to prevent their firings or to be restored to their jobs and for money damages on the theory that their civil rights had been violated. The United States District Court dismissed the suit but the Seventh Circuit Court of Appeals, at 509 F.2d 1133, reversed the trial court and the case was then accepted by the United States Supreme Court. Elrod v. Burns, 96 S.Ct. 2673, 427 U.S. 347, 49 L.Ed. 2d 547 (1976). The Supreme Court held that patronage dismissals severely restrict political belief and association, both of which are individual rights protected by the First Amendment to the United States Constitution, and the government may not, without seriously restricting those rights, force a public employee to relinquish his right to political association at the price of holding a public job. The court, in addition, stated that the acts of Sheriff Elrod and others were a violation of individual rights secured by the 14th Amendment, The court reasoned that maintenance of jobs by political employees could not be conditioned on the basis that those employees provide, in some acceptable manner, support for the favored political party. The threat of dismissal for failure to provide that support unquestionably restricts protected belief and association and dismissal for failure to provide that support only penalizes the exer- April 1989 / Illinois Municipal Review / Page 9 cise of one's belief and association. The government may not directly require an individual to be a member or supporter of a particular political group nor may it, through its elected officials, force the employee to cease exercising his protected rights as a condition of employment. The court went on to state that regardless of how evenhandedly these restraints may operate in the long run, after political office has changed hands several times, individuals protected interests are still infringed and the violation remains. The court, however, did not totally prohibit patronage firings. The court recognized the need for political loyalty of employees to prevent political tactics, by members of the opposition party, designed to obstruct implementing policies of the new administration, policies which are presumably favored by those people who voted the new party into office. This does not provide a basis for across-the-board patronage dismissals but limits such dismissals to individuals in policy-making positions reasoning that non-policy-making employees usually have only limited responsibility and are not in a position to restrict the goals of the party in office. The court went on to add that no clear line can be drawn between policy-making and non-policy-making positions. While non-policy-making individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily a policy-making position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policy-making position. In determining whether an employee occupies a policy-making position, consideration should also be given to whether the employee acts as an advisor or formulates plans for the implementation of broad goals. Thus, the political loyalty "justification is a matter of proof, or at least argument, directed at particular kinds of jobs." Illinois State Employees Union v. Lewis, 473 F.2d561 (7th Cir. 1973), certiorari denied, 93 S.Ct. 1364.410 U.S. 928, 35 L.Ed. 2d 590, 93 S.Ct. 1370, 410 U.S. 943, 35 L.Ed.2d 609. The Supreme Court in Branti v. Finkel, 445 U .S. 507 (1980) slightly modified its ruling in Elrod but again limited its consideration of the issues to patronage dismissals. In Branti, two county assistant public defenders, both Republicans, filed suit to prevent the newly appointed Public Defender, a Democrat, from discharging them from their jobs solely because of their political beliefs. The Branti court held that the issue is not whether the label "policymaker" or "confidential" fits the particular public office in question, but rather whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office. The continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government. The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State. Whatever policy-making occurs in his office must relate to individual clients' needs and not to any partisan political interests. Similarly, although an assistant is bound to obtain access to confidential information arising out of various attorney-client relationships, that information has no bearing on partisan political concerns. Under these circumstances, it would undermine, rather than promote, the effective performance of an assistant public defender's office to make his tenure dependent upon his allegiance to the dominant political party. The concerns of the appropriate public official considering the discharge of an employee when political questions are involved must include: 1. Under Elrod: Is the employee in a policy making position? 2. Under Branti: Can the official demonstrate an overriding interest of vital importance requiring that a person's private beliefs conform to those of the hiring authority? If an individual's constitutional rights have been violated by reason of a patronage dismissal, he then has a basis for a lawsuit alleging a violation of his civil rights under 42 U.S.C. § 1983. This statute essentially provides that every person who, under "color" of any statute, ordinance, regulation, custom or usage, of any state, subjects, or causes any citizen of the United States or any person within the jurisdiction of that state to be deprived of any rights secured by the Constitution and laws, that person shall be liable to the person whose rights have been violated. The Supreme Court determined that a patronage dismissal, when it fails to meet the tests of Elrod v. Burns, as modified and supported Page 10 / Illinois Municipal Review / April 1989 by Branti v. Finkel, is a violation of the individual's 1st and 14th Amendment rights and, of course, such violations then fall squarely within 42 U.S.C. § 1983. If the individual is successful in his civil rights suit, he is also entitled, under 42 U.S.C. § 1988, to an award of attorney's fees which, under current law, may be substantial, although the amount of damages awarded the individual plaintiff may be minimal. The typical lawsuit based on an alleged dismissal for political reasons seeks a reinstatement to the particular job, damages for lost wages and related items, punitive damages and attorney's fees. These items can obviously be of substantial amounts and are independent of the cost incurred in defending the case. Even if the termination is eventually found to have been proper, the consumption of time necessary to participate in the defense of the case and the costs of litigation are usually substantial. A public official must always consider the ramifications of his act prior to discharging an employee who may claim that his dismissal, or threatened dismissal, is politically motivated. The official should, prior to taking any action in this situation, consult with his attorney. If the concerned official cannot contact the municipal attorney or desires additional information on this subject, please call 1-800-635-9405. This article does not extend to other patronage practices such as hiring, rehiring, transfers, demotions or promotions. Those acts, when political concerns are involved, have produced different results by various courts and should, as in the case of discharges, be the subject of discussion between the appropriate official and municipal attorney. •
April 1989 / Illinois Municipal Review / Page 11 |
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