Politically motivated removals from public employment

Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479

In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.

James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.

According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.

The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:

1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.

2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”

3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.

Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.

Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.

In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:

(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and

(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.

A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.

Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.

Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.

However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.

The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.

But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”

The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.

In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”

The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.

The full text of the decision may be found at:
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