By THOMAS W. KELTY, Chief Counsel
STANLEY L. MORRIS*
Illinois Municipal League

PERSONNEL DECISIONS
AND POLITICAL AFFILIATIONS

In the April, 1989 issue of this magazine, we called the readers' attention to the rules relating to politically-based job terminations developed by the United States Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980). The Eirod/ Branti rules have now been extended in Rutan, et al. v. Republican Party of Illinois, U.S.Sup.Ct., Nos. 88-1872 and 88-2074, decided June 21, 1990. (The defendant has asked the Supreme Court for a rehearing of the Rutan ease but, for purposes of this article, such request is not considered.)

On November 12, 1980, Governor James Thompson issued an Executive Order proclaiming a hiring freeze for every agency, bureau, board, or commission subject to his control. The Order prevented state officials from hiring any employee, filling any vacancy, creating any new position, or taking any similar action without the Governor's "express permission after submission of an appropriate request to [his] office." Requests, which allegedly became routine, for the Governor's "express permission" were made to the Governor's Office of Personnel (the "Governor's Office"), an agency expressly created for this purpose. The various agencies screened applicants under Illinois' Civil Service System, making their personnel choices and submitting them as requests to be approved or disapproved by the Governor's Office. Among the employment decisions for which approvals were necessary were new hires, promotions, transfers and recalls following lay-offs. In reviewing a request that a particular applicant be approved for a particular position, the Governor's Office allegedly looked at, among other items, whether the applicant had voted in Republican Primaries in past election years, whether the applicant had provided financial or other support to the Republican Party and its candidates, whether the applicant had promised to join and work for the Republican Party in the future, and whether the applicant had the support of Republican Party officials at state or local levels.

Two suits attacking the described actions were filed by the following five plaintiffs: Rutan, who claimed she was repeatedly denied promotions because she had not worked for or supported the Republican Party; Taylor, who claimed he was denied a promotion because he did not have the support of the local Republican Party and who also claimed he was denied a transfer to an office nearer to his home because of opposition from Republican Party Chairmen in the counties in which he worked and to which he requested a transfer; Moore, who claimed that he was denied state employment because he did not have the support of Republican Party officials; Standefer and O'Brien, both of whom claim that they were not recalled after layoffs because they lacked Republican credentials. The various plaintiffs alleged that they had suffered discrimination, in violation of their rights of freedom of belief and of association under the First Amendment to the United States Constitution, because they had not been supporters of the Republican Party.

The trial court dismissed both suits. The Seventh Circuit Court of Appeals affirmed that part of the dismissals which held that the act of basing hiring decisions on political affiliation does not violate the First Amendment but reversed the remainder of the trial court's action, noting that the petitioners whose claims were based on failure to promote or transfer might be able to show that such practices of the defendant may have been the "substantial equivalent of a dismissal" ("dismissal" having been the focus of Elrod and Branti), i.e., would lead a reasonable person to resign, and that the failure to recall claims might be proven if there were a formal or informal system of rehiring employees in their positions.

The cases went to the United States Supreme Court which held that promotions, transfers, recall and hiring decisions based on party affiliation and support are an impermissible infringement on First Amendment rights of public employees. The Court stated that the Court of Appeals failed to recognize that there are deprivations less harsh than dismissal that nonetheless require state employees and applicants to conform their beliefs and associations to some state-selected beliefs. For example, those individuals who do not compromise their First Amendment rights stand to lose the considerable increases in pay and job satisfaction attendant to promotions, the shorter commuting hours and lower main-

September 1990 / Illinois Municipal Review / Page 25

tenance expenses incident to transfers to more convenient work locations and even the jobs themselves in the case of recalls. These are significant penalties, although not dismissals, which are imposed for the individuals' exercise of their First Amendment rights. The patronage practices alleged by the plaintiffs must, to be acceptable, further "vital government interests," meaning that such practices can be implemented only as they relate to "high-level" employees.

In summary, Elrod was concerned with politically-motivated discharges; Branti was concerned with whether or not the hiring authority could demonstrate that party affiliation is an appropriate requirement for the effective performance of the particular office but Rutan apparently covers almost any adverse personnel action based on political affiliation, unless the individual involved is a "high-level employee" who may be terminated on the basis of his political affiliation. It is admittedly often difficult to determine who is, or is not, a "high-level employee."

Public officials are cautioned to consult with their attorneys in each instance where a hiring, dismissal, promotion, transfer, recall or other personnel decision involving employees who are not "high-level" may be subject to a claim that the decision made resulted, directly or indirectly, from political party affiliation. •

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