Federal appellate court finds no First Amendment violation for dismissal of public employee for political affiliation
Embry v. City of Calumet City, No. 12-1649 (7th Cir. (Ill.) Nov. 26, 2012)
Abstract: A three-judge panel of the United States Court of Appeals for the Seventh Circuit (IL, IN, WI) has upheld the district court’s grant of summary judgment in favor of Calumet City, finding no First Amendment violation for the dismissal of Jay Embry, a public employee who claimed retaliation after backing the “wrong” candidate, because he held a policy-making position and could be removed from office solely for his political affiliation.
Facts/Issues: Embry had worked for the Department of Streets and Alleys for more than 10 years, eventually rising to the highest position in 2007, when Mayor Michelle Qualkinbush appointed him Commissioner of that department. In that role, he oversaw the construction and repair of all streets, paving, sidewalks, and other public improvements, and also reported ordinance violations to the City Council. Embry supervised all work in the Department, prepared its annual $4 million budget, and managed the Department’s payroll and scheduling for its 40 employees. He also met with the mayor and the heads of other departments to brainstorm ways to improve the City’s streets and other public ways.
During the 2009 municipal election, Embry campaigned for the “United to Serve You” team of candidates that included Mayor Qualkinbush and three of the four defendant-aldermen. During the campaign, the three defendant-aldermen broke ranks with the team and supported defendant Roger Munda against his opponent, whom the Mayor supported. Embry found himself caught in the political crossfire when the defendant-aldermen urged him to stop supporting the Mayor and “get on their team,” which he declined to do.
A few months after the election, the City merged Embry’s department with the Sewer and Water Department, creating a new Department of Streets, Alleys, Water and Sewer. The Mayor nominated Embry to be the Commissioner of the new department, after the previous Superintendent had planned to retire. However, after the defendant-aldermen vowed not to ratify his appointment, the Mayor nominated someone else.
After the City Council approved the new appointment, Embry sued the City, four City aldermen, and the City’s Director of Personnel under 42 U.S.C. § 1983, claiming that his First Amendment free speech rights were violated when he was demoted from his Commissioner position in retaliation for his support of the mayor during the election.
The district court granted the defendants’ motion for summary judgment, concluding that the Commissioner is a policy-making position and that Embry could therefore be removed from such a position because of his political affiliation without violating the First Amendment. Embry appealed.
Ruling/Rationale: The three-judge panel for the Seventh Circuit affirmed the district court’s decision in favor of the defendants. The panel began its analysis with the observation that political patronage dismissals, as a general matter, violate the First Amendment, citing Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980). Certain governmental positions, however, “require a heightened need for trust and confidence,” the panel said. In such “policymaking jobs,” the panel explained, the “government employer’s need for political allegiance … outweighs the employee’s freedom of expression … [and the] employer may fire individuals in policymaking jobs solely because of their political affiliation.” Citing Thomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985), the panel observed that the exception applies not only “when a new political party takes power, but when one faction of a party replaces another faction of the same party.”
In considering Embry’s argument that the Elrod-Branti patronage cases did not apply to his claim, the panel recognized that even policy-making employees possess a minimal level of First Amendment protection against retaliatory dismissal because the government cannot fire them for speech on public matters unconnected to political affiliation or policy viewpoints. Citing Connick v. Myers, 461 U.S. 138 (1983) and Pickering v. Bd. of Educ., 391 U.S. 563 (1968), the panel noted that an employee’s dismissal could survive First Amendment scrutiny if the government’s interest in promoting the efficiency of its public services outweighs the employee’s free speech interests. However, because Embry could not identify any statement of public concern that was not connected to his political affiliation and policy views, the panel found that his claim was not subject to review under the Connick-Pickering balancing test.
Instead, Embry argues that because he publicly supported the entire “United to Serve You” slate, the defendants must have fired him for his speech on public matters other than his political loyalties. But Embry’s complaint specifically alleged that defendants fired him “based on [his] political allegiance to Qualkinbush.” This alone places the case squarely within the Elrod-Branti line.
The panel then analyzed whether Embry’s position qualifies as a policy-making position under Elrod-Branti; if it does, then Embry’s dismissal does not violate the First Amendment. An employee holds a policymaking position when “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Political allegiance is a valid job requirement when “the position authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.” The panel noted that discretion is also important. With this, the panel examines the powers inherent in the office when considering whether an employee holds a policymaking job, even if the employee never actually exercises those powers.
Embry planned for and oversaw construction and repair of the City’s public ways, supervised the Department’s 40 employees and managed a $4 million budget. In addition to implementing policy, he met with the Mayor and other department heads to develop policies for improving city services. His position was filled by mayoral appointment, subject to City Council approval. Embry had discretionary authority to implement and influence policy. Finding these executive duties to closely resemble those of other public-works administrators that involved “policymaking,” the panel affirmed the district court’s entry of summary judgment in favor of the defendants.
Embry v. City of Calumet City, No. 12-1649 (7th Cir. (Ill.) Nov. 26, 2012)
[Editor's Note: Legal Clips sincerely thanks Patrick Rocks, of Jackson Lewis LLP in Chicago, for bringing this case to our attention, and for his summary. Mr. Rocks is a member of the Council of School Attorneys.]
