September 20, 2010

Terminations based on political affiliation

Terminations based on political affiliation
Bavaro v Pataki, CA2, 130 F.3d 46 9181

In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.

Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.

According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."

In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others; and

(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.

The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.

It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.

Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.

The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.