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January 14, 2011

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA

Assistant Attorneys General ruled “policy makers” for the purposes of the First Amendment, Title VII and the ADEA
Butler v NYS Dept. of Law, CA2, [Appeal from summary judgment in favor of the State, see Butler v. New York State Dep’t of Law, 998 F. Supp. 336]

Who is a policy maker? This was one of the issues before the court when former Assistant Attorney General Barbara B. Butler sued then Attorney General Dennis Vacco, contending that she had been unlawfully fired from her position as a Deputy Bureau Chief.

Was Butler was a policy maker and thus subject to dismissal for reasons of political patronage? The Court concluded that Butler was a policy maker.

In determining whether an individual is a policymaker in accordance with the Elrod [427 US at 367] and Branti [445 US 507] standards, the Second Circuit said it considers whether or not the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others;

(4) is authorized to speak in the name of policymakers;

(5) is perceived as a policymaker by the public;

(6) influences government programs;

(7) has contact with elected officials; and

(8) is responsive to partisan politics and political leaders.

The Circuit Court said that as Deputy Bureau Chief, Butler was not protected against a political patronage dismissal because her position fell within the policymaker exception to First Amendment protection.

Further, said the court, Butler was not protected under Title VII because her position came within the statutory exception for an appointee on the policymaking level.

Finally, Butler’s ADEA claim failed because the State’s Eleventh Amendment immunity prevented her from suing the State Department of Law for age discrimination under ADEA.


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