Opinion
No. 1:03-cv-00898-JDT-TAB.
November 24, 2004
ENTRY ON MOTION FOR SUMMARY JUDGMENT (DKT. NO. 30)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Brenda Prough, brought this action under § 1983, alleging that her rights under the First Amendment were violated when she was not appointed deputy clerk-treasurer for Defendant Town of Monrovia ("Town" or "Monrovia"). Defendants move for summary judgment. Plaintiff opposes the motion.
I. Background Facts
In 2000, the Town Board of Monrovia passed Ordinance No. 11-2000, creating the office of deputy clerk-treasurer. The deputy was to be selected by the clerk-treasurer and "to perform such duties as the Town Clerk specifies or in the absence of the Town Clerk, to perform such necessary clerk functions as required by law." (Sichting Aff. ¶ 2, Ex. 1.) The office of clerk-treasurer for the Town is a part-time position, basically requiring 15 to 20 hours of work per week. (Prough Dep. at 15.) The deputy position was also a part-time position of approximately 15 hours per week. ( Id. at 13.) The Plaintiff was selected for the position of deputy clerk-treasurer by then clerk-treasurer Phyllis Eubanks, a Democrat, and began working in that capacity on January 1, 2001. ( Id. at 11.) Ms. Prough describes the deputy's duties as performing any function of the clerk-treasurer such as banking, accounting, filing or whatever the clerk-treasurer specifies, and acting as the Town's fiscal officer in the absence of the clerk-treasurer. ( Id. at 18-19.)
In 2002, Ms. Prough ran for clerk-treasurer as a Republican. (Prough Dep. at 13-14.) She filed as a candidate for the office after the incumbent Eubanks announced that she was not running for re-election. Ms. Prough lost the general election to Norieta Sichting, the Democratic candidate. ( Id. at 19.) Ms. Sichting then replaced Ms. Eubanks as clerk-treasurer.
Ms. Sichting advised Ms. Prough that she would not be reappointing her as deputy because she had decided to do the job herself. (Prough Dep. at 25-26.) Ms. Sichting denies that she considered Ms. Prough's political affiliation in deciding not to reappoint her as deputy. (Sichting Aff. ¶ 19.) Ms. Sichting has not appointed a deputy clerk-treasurer since taking office and has not established any other positions in the clerk-treasurer's office. ( Id. ¶ 15; Prough Dep. at 27.)
II. Discussion
Defendants seek summary judgment. Summary judgment should be granted when there is no genuine issue as to any material fact and the moving parties are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court construes all facts and inferences in the light most favorable to the non-moving party. See Fanslow v. Chicago Mfg. Ctr., Inc., 384 F.3d 469, 478 (7th Cir. 2004). Not all facts are material, and only disputes over facts that might affect the outcome of the suit under the governing law can preclude the entry of summary judgment. See id. Defendants contend that the deputy clerk-treasurer position is not protected by the First Amendment, Defendant Sichting is entitled to qualified immunity in her individual capacity, and Plaintiff cannot recover punitive damages.
A. Political Hiring
As a general rule, the First Amendment prohibits the hiring and firing of public employees because of their political beliefs or affiliation. Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347, 375 (1976); Carlson v. Gorecki, 374 F.3d 461, 464 (7th Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3287 (U.S. Oct. 21, 2004) (No. 04-571). Like most rules, this rule has exceptions. The rule is inapplicable when it is demonstrated that "party affiliation is an appropriate requirement for the effective performance of the public office involved." Carlson, 374 at 464 (citing Branti, 445 U.S. at 517-18). Stated more precisely, the question is whether "the position held by the individual authorizes, either directly or indirectly, meaningful input into governmental decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Kline v. Hughes, 131 F.3d 708, 709 (7th Cir. 1997) (quotation omitted); Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981). This requires that the court examine the "powers and duties inherent in the position," Carlson, 374 F.3d at 464; see also Kline, 131 F.3d at 710, not simply the functions performed by the person who holds the position. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 756 (7th Cir. 2002); Meeks v. Grimes, 779 F.2d 417, 424 (7th Cir. 1985) (instructing the district court on remand to "focus on the inherent powers of the office of the bailiff . . . rather than what these plaintiffs actually did or what the defendant plans for them to do"); Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985). However, the work actually performed by the person in the position is informative as to the inherent powers and duties of the position. See, e.g., Carlson, 374 F.3d at 465.
The Seventh Circuit has recognized another exception, or perhaps a variation of the first, which arises from the closeness, intimacy or confidentiality of the person's relationship with the elected official. See Zorzi v. County of Putnam, 30 F.3d 885, 893 (7th Cir. 1994); Matlock v. Barnes, 932 F.2d 658, 665 (7th Cir. 1991); Meeks, 779 F.2d at 422-24; Soderbeck v. Burnett County Wisconsin, 752 F.2d 285, 288 (7th Cir. 1985) (concluding jury question exists as to whether political affiliation is proper qualification for job as sheriff's secretary and bookkeeper in six-person office). The court said in Meeks:
Political animosity, while not a noble basis for discharging an employee, can in practice create a hostile work environment where face to face contact and cooperation are essential. It would strain credulity to read the First Amendment or Elrod to require an elected official to work in constant direct contact with a person viewed as a political enemy. This would seem to be contrary to the respect this court has given the governmental interest in efficient public administration under the Branti formulation, Soderbeck, 752 F.2d at 288, and therefore we refuse to extend the protections of Elrod to these intimate settings.Meeks, 779 F.2d at 423; see also Matlock, 932 F.2d at 665. The court limited its holding in Meeks, however, by explaining that:
it applies to a select number of government employees: only those employees who work in direct and constant contact with a political official-employer would be exempted from the First Amendment's protection against patronage dismissals. . . . Employees who work outside the everyday immediate work environment would be protected unless they were otherwise exempted under the Elrod-Branti formulation.Id. The paradigm example of such an intimate work setting is a judge's chambers. Id.
Defendants bear the burden of proving that an exception to the ban on political employment decisions applies. See, e.g., Kline, 131 F.3d at 710. While Plaintiff is correct that whether a position is one for which party affiliation is an appropriate requirement often is a factual question, see Pleva v. Norquist, 195 F.3d 905, 912 (7th Cir. 1999); Zorzi, 30 F.3d at 893, where the material facts are not disputed, the court may decide the question as a matter of law. See Pleva, 195 F.3d at 912; Heck v. City of Freeport, 985 F.2d 305, 310 (7th Cir. 1993).
In the court's view, the deputy clerk-treasurer position is one for which party affiliation is an appropriate consideration for the effective performance of the position. First of all, the Town's clerk's office had at most two employees — the clerk-treasurer and the deputy clerk-treasurer. The deputy would have to work in direct and constant contact with the elected clerk-treasurer. Even if the deputy and clerk-treasurer did not work side by side every day (the clerk worked 15 to 20 hours each week and the deputy worked 15 hours each week), the deputy served at the pleasure of and her duties were assigned by the clerk-treasurer. If the deputy and clerk did not have daily face-to-face contact, they would have had contact through messages and notes such as emails or voice mails and even telephone calls, so that each could know what had been done and what needed to be done in the office. It is hard to imagine of a more intimate work setting. The deputy clerk-treasurer would be expected to work closely with and remain loyal to the clerk-treasurer, especially since the deputy acted in the clerk's stead when the clerk was absent.
Therefore, recognizing that the intimacy of an office setting often poses factual issues, the court finds that the Town clerk's office presents an intimate setting where political animosity could create an unworkable environment. It would strain credulity to require Ms. Sichting to work in direct and constant contact with her political opponent, Ms. Prough.
Furthermore, the record discloses that the deputy clerk-treasurer position is one which authorizes meaningful input into governmental decisionmaking. The parties agree that the ordinance which created the deputy clerk-treasurer position authorized the deputy "to perform such duties as the [clerk-treasurer] specifies, or in the absence of the [clerk-treasurer], to perform such necessary clerk functions as required by law." Thus, the court considers whether party affiliation is an appropriate requirement for the effective performance of the clerk-treasurer position as well as the deputy position.
Indiana law provides that the deputy of a clerk-treasurer serves at the pleasure of the clerk-treasurer, Ind. Code § 36-5-6-7(a), and when the clerk-treasurer position is vacant, the chief deputy assumes the duties of the office. Ind. Code § 3-13-11-12. The duties of the clerk-treasurer include receiving and caring for all town money, keeping accounts, managing the finances and accounts of the town and investing town money, preparing budget estimates and proposed tax rates, and serving as clerk of the legislative body. Ind. Code § 36-5-6-6. Moreover, the clerk-treasurer is "an ex officio member [of the legislative body] for the purpose of casting the deciding vote to break a tie." Ind. Code § 36-5-2-8. These powers and duties, especially including being a member of the legislative body for purposes of casting a tie breaking vote, establish that the clerk-treasurer position authorizes meaningful input into governmental decisionmaking on issues where there is room for principled disagreement on goals or their implementation. As noted earlier, the ordinance which created the deputy clerk-treasurer position authorizes the deputy to perform such duties as the clerk-treasurer directs and, in the absence of the clerk-treasurer, to perform the duties of the clerk. State law further provides that when the clerk-treasurer position is vacant, the chief deputy assumes the duties of the office. Thus, the court concludes that the deputy clerk-treasurer position also authorizes meaningful input into governmental decisionmaking on issues where there is room for principled disagreement on goals or their implementation.
Plaintiff argues that the fact that the clerk-treasurer has the power to specify the duties the deputy will perform undermines the Defendants' assertion that the deputy clerk-treasurer position is exempt. While the clerk-treasurer could cabin the deputy's duties to ministerial tasks, the court looks to the powers and duties inherent in the deputy position. See, e.g., Carlson, 374 F.3d at 464-65. For the same reason, Plaintiff errs in asserting that the court should focus solely on the duties which she actually performed as deputy clerk-treasurer. See, e.g., id.
Ms. Prough contends that the potential impact on policy and speculative uses of the public position in question are insignificant at the summary judgment stage, relying on Carlson v. Gorecki. The Carlson court focused on the historical treatment of the job and the work performed by the people who currently held the special investigator positions. Carlson, 374 F.3d at 464-65. This may have been at least in part because there is no indication in the case that any statute or ordinance existed which set forth the special investigators' responsibilities and duties. Furthermore, the court reiterated that whether party affiliation is an appropriate job requirement is determined "by a functional test that examines the powers and duties inherent in the position." Carlson, 374 F.3d at 464 (citing Hudson v. Burke, 913 F.2d 427, 431 (7th Cir. 1990)). Thus, the court does not read Carlson as a departure from the rule that the powers and duties inherent in the position are what matter in deciding whether a position is protected from the ban on political patronage decisions.
The cases cited by Carlson as authority for considering the historical treatment of ` and the work performed in the position support this reading. Hudson emphasizes that "`the focus here is on the office or position rather than the individual officeholders'" and that "` Elrod and Branti require examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office.'" Hudson, 913 F.2d at 431 (quoting Meeks v. Grimes, 779 F.2d 417, 419 (7th Cir. 1985) and Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985)); see also id. at 432 ("we must not focus so much on what appellants or their replacements actually did as on what powers were inherent in the positions they held"). Thornburg v. Peters, 155 F. Supp. 2d 984 (C.D. Ill. 2001), also states that the inherent powers of a position are what matter. Id. at 990-91 ("The Court agrees that the inherent power is the only issue, but disagrees with the conclusion that the Court should not consider what ISI IIs generally do. Such evidence is probative of the inherent power of the position."). Moreover, nothing in Carlson directs district courts to ignore express language in an ordinance or statute which defines the functions and responsibilities of the position, the situation presented in this case. See, e.g., Kline, 131 F.3d at 710 (relying on state law which gave the deputy auditor the power to perform all duties of the elected auditor and gave the auditor the right to assign to the deputy appropriate duties in concluding that party affiliation was a reasonable consideration for appointment of the deputy auditor).
Ms. Prough notes the court's comment that "Gorecki's decision to entirely eliminate the special investigator position after firing Carlson and Smith also makes it difficult for Gorecki to establish that political affiliation is important to the job." Carlson, 374 F.3d at 465. The difficulty did not arise, however, from an inability to consider the work performed by the persons who currently held the position, but from the inference drawn by the court. When a position has been eliminated, the court obviously cannot consider the work performed by the person holding the position, but the court can consider what work was performed by the persons who held the position in the past. More important than the functions actually performed, however, as stressed by Seventh Circuit decisions including Carlson, are the functions inherent in the position — the functions which could be performed by someone holding the position. In Carlson the court inferred from the decision to eliminate the position that the job was a non-patronage job and unimportant for the functioning of the office. Id. While such an inference may arise in some cases, the court does not believe that it would apply in all situations in which a public employee's position has been eliminated. In this day and age of budget constraints, governments are downsizing and restructuring. Difficult decisions have to be made. Officials may decide to eliminate even those positions that are important to the function of the government office, and even those positions for which political patronage had been a consideration.
Ms. Prough believes that the duties of the deputy position make this case analogous to Zold v. Township of Mantua, 935 F.2d 633 (3rd Cir. 1991), where the appellate court reversed the grant of summary judgment to the defendant town on the First Amendment claim. The plaintiff Zold was a deputy clerk and had many duties similar to those of Ms. Prough. However, the case is distinguishable because the powers and duties inherent in the position were critically different than those of the position held by Ms. Prough. Though state law provided that the deputy clerk in Zold had all the powers of the clerk in the clerk's absence, the clerk's statutory duties did not include acting as a member of the legislative body and casting a tie-breaking vote. Further, the clerk's functions were described by the court as "ministerial," the clerk's position was an appointed position, and the clerk had job security under state law. Zold, 935 F.2d at 637-38. For these reasons, the Zold court concluded that political affiliation was not an appropriate consideration with respect to the clerk's position. Id. at 638. As a result, the court also decided that political affiliation was not a proper consideration for the deputy clerk — a mere surrogate for the clerk. Id. at 639-40.
Here, in contrast, the clerk-treasurer position is an elected one, and thus political affiliation is not only a proper consideration, but likely an important factor in determining who fills the position. And, because the clerk-treasurer is elected, the position presumably lacks statutory job security; Plaintiff has offered nothing to overcome this presumption. Moreover, the clerk-treasurer acts as a member of the legislative body and has the authority to cast a tie breaking vote. Thus, the record demonstrates that political affiliation is a proper consideration for the clerk-treasurer's position. And as stated, the ordinance creating the deputy clerk-treasurer position provides that the deputy performs the duties specified by the clerk and in the clerk's absence, performs all necessary clerk functions required by law, thus including the authority to vote in the case of a tie. Thus, it follows that political affiliation is a proper consideration for the deputy clerk-treasurer position as well.
Plaintiff claims that it is disingenuous for Defendants to argue that concerns about the effectiveness of her performance justified her dismissal. The court does not understand them to be arguing that Ms. Sichting did not retain Ms. Prough because of performance concerns. Instead, their position is that Ms. Prough's employment as deputy clerk-treasurer was not protected by the First Amendment's ban on political patronage decisions.
Finally, it is noted that despite the Defendants' evidence to the contrary, the record supports a fair inference that Ms. Sichting considered Ms. Prough's party affiliation and candidacy in making the decision not to rehire her as deputy clerk-treasurer. Ms. Prough, after all, ran against Ms. Sichting in the election and lost. Any reasonable person would take the fact of Ms. Prough's candidacy into consideration in deciding whether to keep her as the right-hand and only other employee in the clerk's office. Thus, it is reasonable to infer that Ms. Sichting took Ms. Prough's candidacy into account in deciding not to rehire her — even if the perceived lack of a need for a deputy also was a consideration. As well, Ms. Sichting testified that she was apprehensive Ms. Prough might make decisions as deputy clerk-treasurer with which she would not agree. Though Ms. Sichting attributed her apprehension to her belief that Ms. Prough thought she knew more about the office, the apprehension also could be founded upon differences of political beliefs and party affiliation which would affect Ms. Prough's decisionmaking. And, in December 2002, Ms. Sichting told Ms. Prough that she did not want her to be the deputy clerk-treasurer and she had someone else in mind, and Ms. Sichting still was considering appointing a deputy after taking office in January 2003. These facts could cast doubt on the explanation that Ms. Sichting eliminated the deputy position based on the workload and may imply that she was considering appointing someone of the same political party who shared her political beliefs. But these disputed facts are immaterial given the court's conclusion that party affiliation is a proper requirement for the effective performance of the deputy clerk-treasurer position.
The court concludes that the First Amendment's prohibition on politically motivated employment decisions is inapplicable to the deputy clerk-treasurer position which was held by Ms. Prough. Therefore, the Defendants' motion for summary judgment will be GRANTED.
B. Qualified Immunity Punitive Damages
Defendants contend that Ms. Sichting is entitled to qualified immunity. Because they have shown that there is no genuine issue of material fact and they are entitled to summary judgment on the merits, the court need not consider whether qualified immunity would shield Ms. Sichting from liability in her individual capacity. However, assuming that Ms. Sichting could show a violation of a constitutional right, she would have to show that the right was clearly established at the time of the violation. McGreal v. Ostrov, 368 F.3d 657, 683 (7th Cir. 2004). She may show the law was clearly established by pointing to "closely analogous cases demonstrating that the conduct is unlawful" or by demonstrating "that the violation is so obvious that a reasonable state actor would know that what [s]he is doing violates the Constitution." Id.
Ms. Prough has not pointed to any case in which the employee in question worked in such an intimate office environment as she and had full authority to perform all duties of the elected official in the official's absence, including the authority to cast a tie-breaking vote on legislative matters. Furthermore, given the small, intimate setting of the clerk's office and the authority inherent in the deputy clerk-treasurer position, no reasonable state actor would know that in declining to rehire Ms. Prough as deputy clerk-treasurer, she was violating Ms. Prough's constitutional rights. Thus, Ms. Sichting would be entitled to qualified immunity.
Defendants contend Plaintiff is not entitled to punitive damages. Because the court has decided they are entitled to summary judgment on the merits, it need not reach the punitive damages issue.
III. Conclusion
Defendants' Motion for Summary Judgment (Dkt. # 30) will be GRANTED and an appropriate judgment will be entered.
ALL OF WHICH IS ENTERED.