Wrong analysis applied to qualified immunity in deputy’s ‘pure patronage’ dismissal

By Joy Waltemath

By Kathleen Kapusta, J.D.

In granting qualified immunity to a county sheriff in his individual capacity on a discharged deputy’s claim for deprivation of his First Amendment right of free association, the court below did not apply the proper analysis to determine whether the deputy was discharged because of his political affiliation, the Eighth Circuit ruled, vacating and remanding for an analysis under the Elrod-Branti line of precedent. But because the sheriff did not act as a final policymaker in the county’s employment decisions, the appeals court affirmed the grant of summary judgment to him in his official capacity (Thompson v. Shock, March 28, 2017, Smith, L.).

When the sheriff, who was a deputy at the time, ran for office in 2012, the employee, a fellow deputy, opposed him and publicly endorsed his rival. Although the employee campaigned for the rival while off-duty, this did not interfere with his work activities and he made no public statements regarding the sheriff’s office. After the sheriff won the election, the employee was notified of his non-selection for employment the next year, purportedly because of his “lack of good work ethic.”

Lower court proceedings. The employee and three other non-selected employees then sued, alleging violations of their rights under the Arkansas Political Freedom Act, the Arkansas Constitution, and the First Amendment of the U.S. Constitution. Finding that the employee’s claimed First Amendment right was not clearly established under the Pickering–Connick test, the district court granted qualified immunity to the sheriff in individual capacity and dismissed the related state-law claims. It also dismissed the employee’s official capacity claim because the sheriff lacked final policymaking authority in employment matters.

Different tests. On appeal, the Eighth Circuit noted that the Supreme Court has developed two lines of cases that assess how to balance the First Amendment rights of government employees with the need of government employers to operate efficiently. For “overtly expressive conduct,” federal courts apply the balancing test as found in the line of cases following Pickering and Connick. These cases typically involve a government employee causing workplace disruption by speaking as a citizen on matters of public concern followed by an adverse employment action.

For “pure patronage dismissals,” federal courts apply the narrow-justification test outlined in Elrod v. Burns and Branti v. Finkel, the court observed, noting that the typical Elrod–Branti case involves the dismissal of an employee because of his political affiliation or support for certain candidates. As for cases that present an “intermixed” scenario in which a policymaking employee receives an adverse employment action based on specific instances of speech or expression, the Eighth Circuit explained that it applies Pickering-Connick.

Wrong precedent. The district court, in granting qualified immunity, relied on the Eighth Circuit’s decision in Nord v. Walsh County. But because Nord presented an intermixed case that included both public statements and political affiliation, the Eighth Circuit explained that it declined to apply Elrod-Branti and instead applied Pickering-Connick to determine whether the employer was justified in terminating the plaintiff.

The employee’s case, here, however, was different because he made no public statements regarding the sheriff’s office. Instead, he simply supported an opposing candidate. Looking to the Supreme Court’s recent decision in Heffernan v. City of Paterson, published after the district court filed its judgment, the appeals court pointed out that using the Elrod-Branti analysis, the High Court determined that a government employer could violate an employee’s First Amendment rights even if acting under the mistaken belief that the employee was affiliated with a certain candidate.

Here, the employee, like Heffernan, suffered an adverse employment decision not because of his overt expressive conduct but because of his affiliation with the “wrong” candidate, said the court, finding that when the constitutional right at issue involves joining, working for, or contributing to the political party and candidates of the employee’s choice, it applies the Elrod–Branti test. Because the district court applied a different test, the appeals court remanded the question of qualified immunity for an analysis under Elrod-Branti.

Municipal liability. In affirming the district court’s grant of summary judgment to the sheriff in his official capacity, the court noted that under Section 1983, a municipality cannot be held liable for the tortious conduct of an employee unless he acts pursuant to a municipality’s “official policy.” In analyzing whether a single decision of a government official constitutes an official policy, the court observed that it looks to state law to determine whether the government official possesses “final policymaking authority in the area in which the challenged conduct occurred.” And in determining whether a government official serves as the final policymaker, the court consults two sources: “(1) ‘state and local positive law’ and (2) state and local ‘”custom or usage” having the force of law.’”

The employee argued that as a matter of positive Arkansas law, the sheriff possessed the final policymaking authority in matters of employment for the sheriff’s office. He relied on the Arkansas Constitution and the Arkansas Code, which generically give the county judge power to hire employees “except those persons employed by other elected officials of the county.” This exception, he asserted, placed final employment policymaking authority in elected officials for their respective offices.

But this contention, said the court, ignored that power of the quorum court to review employment decisions of county employers. Here, the county provided a grievance procedure through the quorum court to address unconstitutional employment decisions made by the county sheriff and the employee used this procedure to have his employment decision reviewed. The county’s retention of “the right of review” through its grievance procedure was inconsistent with “an absolute delegation of authority” by the county to its sheriff, the court concluded.

Source:: Wrong analysis applied to qualified immunity in deputy’s ‘pure patronage’ dismissal