The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL SHAKMAN, et al. )
)
Plaintiffs, ) No. 1:69-CV-02145
)
v. )
) Judge Edmond E. Chang
CLERK OF COOK COUNTY, ) Magistrate Judge Gabriel Fuentes
)
Defendant. )
MEMORANDUM OPINION AND ORDER
In this decades-old case, the Clerk of Cook County (along with various other
Illinois governmental entities) has been subject to consent decrees enjoining her from
making employment decisions based on political discrimination, as forbidden by the
First Amendment. But certain job positions are exempt from the ban on political dis-
crimination. Way back in 1991, an initial list of exempt job positions was approved
by the Court. The parties and the court-appointed Compliance Administrator have
been working together to update the list, but 10 positions remain in dispute. The
Clerk has moved to add the disputed positions to the exempt list. For the reasons
explained below, the motion is granted in part and denied in part.
I. Background
In 1972, the Clerk of Cook County, along with other units of Illinois govern-
ment, entered into a consent decree barring the Clerk from “conditioning, basing or
knowingly prejudicing or affecting any term or aspect of government employment,
with respect to one who is at the time already a governmental employee, upon or
because of any political reason or factor.” R. 6946-1, 1972 Consent Decree ¶ (E)(1).1
In 1991 the Clerk separately entered into a supplemental decree that barred the
Clerk from “conditioning, basing or knowingly prejudicing or affecting the hiring of
any person as a Governmental Employee (other than Exempt Positions), upon or be-
cause of any political reason or factor ….” R. 6803-1, 1991 Consent Decree ¶ (D). That
same year, a list of exempt positions (the 1991 Exempt List) was approved and, up
until now, had remained unchanged.
Then, in April 2020, the Court found that the Clerk had violated the consent
decrees by unilaterally amending the Exempt List. R. 6829, Appointment Order. The
Court appointed a Compliance Administrator, and directed that the Administrator
“[w]ork with the County Clerk to develop (with the input of plaintiffs’ counsel) a list
of exempt positions to be approved by the Court.” Id. at 41. With this directive came
a moratorium on off-list exempt hiring: “[p]ending approval of any new list, the
County Clerk may not hire persons as []exempt employees for positions which are not
on the 1991 List of Exempt Positions without prior court approval.” Id.
Since then, the Clerk has proposed 41 exempt positions. R. 7378, Def.’s Br at
2. The Administrator and the Plaintiffs agree that 30 of those qualify as exempt. Id.
at 2–3. Of those positions, eight are pending finalized job descriptions. Id. at 3. The
Clerk has withdrawn its proposed exemption of one position. Id. That leaves 10 posi-
tions in dispute: (1) Director for the Clerk of the Board; (2) Director of Cybersecurity;
(3) Director of IT; (4) Director of Recording Operations; (5) Director of Training and
1Citations to the record are “R.” followed by the docket entry number and, if needed,
a page or paragraph number.
Professional Development; (6) Director of Vital Records; (7) Manager—Tax Exten-
sions/GIS; (8) Director of Real Estate and Tax Services; (9) Director of Elections Op-
erations Center; and (10) Director of Human Resources. Id. The County Clerk, the
Administrator, and the Plaintiffs have conferred several times on these positions, but
are at an impasse. The Clerk now moves to approve the addition of these positions to
the Exempt List. R. 7378.2 All of the disputed positions are Director-level positions,
with the exception of Manager—Tax Extensions/GIS.3 To evaluate the propriety of
exempt status, explaining the governing substantive and evidentiary standards is the
first step in the analysis.
II. Analysis
A. Branti
Generally speaking, the First Amendment prohibits governments from making
decisions about the employment fate of public employees based on their political be-
liefs. Branti v. Finkel, 445 U.S. 507, 515 (1980). That said, there are instances in
which political considerations are permitted, because confidentiality and policymak-
ing are necessities in some job positions, rendering political considerations relevant
to effective performance. Id. at 517. A job position satisfies this exception if “the hiring
2As an initial matter, the Clerk preserves its argument that the Plaintiffs lack stand-
ing to bring First Amendment challenges to hiring practices. See Def.’s Br. at 6 n.3. This was
recently addressed by the Seventh Circuit, which held that developments in standing doc-
trine did not warrant vacating the consent decree. Shakman v. Clerk of Cook Cty., 994 F.3d
832, 840 (7th Cir. 2021).
3The County Clerk’s office comprises several departments headed by their respective
Deputy Clerks. Def.’s Br. at 5. Directors occupy the next rung in the hierarchy, followed by
other budgeted staff, including managers and supervisors. Id.
authority can demonstrate that party affiliation is an appropriate requirement for
the effective performance of the public office involved.” Id. at 518.
B. Evidentiary Requirement
In evaluating whether a job position should be exempt under Branti, the par-
ties dispute what evidentiary requirements apply to the evaluation. The Clerk con-
tends that unless a job description bears “some systematic unreliability” or “has been
manipulated in some manner by officials looking to expand their political power,” the
Court’s examination “begins and ends” with the job description and the powers inher-
ent to the role. Def.’s Br. at 9 (quoting Riley v. Blagojevich, 425 F.3d 357, 361 (7th
Cir. 2005)). In contrast, the Plaintiffs argue that the Clerk prepared “made-for-litiga-
tion job descriptions” that are unaccompanied by evidence of reliability. R. 7408, Pls.’
Resp. Br. at 5, 7. Alternatively, the Plaintiffs argue that, even if the Court finds the
descriptions to be reliable, the Clerk must nonetheless provide additional evidence
showing that the exempt duties are actually performed by the job-holder (or will ac-
tually be performed in the future, in the case of vacant positions). Id. at 6, 10.
The right approach is somewhere in the middle of those two extremes. Given
the fact-laden nature of the Branti-exemption inquiry, see Selch v. Letts, 5 F.3d 1040,
1047 (7th Cir. 1993), the circumstances from case to case—and, indeed, from position
to position—will dictate what evidence, if any, is needed beyond the job description.
Although courts must rely on job descriptions whenever possible, no precedent
“stand[s] for the proposition that every Elrod/Branti case can be resolved just by
reading the job description.” Riley, 425 F.3d at 365. “[A]dditional evidence would be
necessary” when the “description might leave the reader unclear whether the job con-
fers any policymaking or confidential discretion ….” Id. Indeed, at times the Seventh
Circuit itself has looked beyond the job description to consider the duties actually
performed. See Allman v. Smith, 790 F.3d 762, 765 (7th Cir. 2015); Tomczak v. City
of Chicago, 765 F.2d 633, 642 (7th Cir. 1985). And additional evidence might be re-
quired especially when, as is the case for some positions here, job descriptions are
intended to cover new or vacant positions.
So, in light of the case-specific and job-specific nature of the exemption inquiry,
there is no blanket requirement (as the Plaintiffs suggest) that the Clerk must pro-
vide affidavits attesting to the conception, drafting, and updating of each job descrip-
tion in compliance with the Clerk’s Policy Manual. Pls.’ Br. at 7. It is true that the
process leading up to the creation of the job descriptions was not created in the ordi-
nary course of business. But it is also true that the County Clerk has engaged in some
back-and-forth efforts to consider the Plaintiffs’ and the Administrator’s questions
and objections on the descriptions. Although it might be appropriate in some in-
stances to look beyond the job descriptions (as discussed in more detail below), there
is no presumptive, across-the-board requirement in the first instance to furnish ad-
ditional evidence of the duties performed. Practically speaking, this means that, in
deciding the propriety of an exemption for each proposed position, the Court will ex-
ercise discretion to require further evidence only when specifically appropriate. It is
time now to turn to each of the disputed positions.
C. Proposed Exemptions
1. Director for the Clerk of the Board
According to its job description, this position is “responsible for supporting the
Deputy Clerk of the Board & Procurement in fulfilling the Cook County Clerk’s stat-
utory duty.” R. 7378-1, Def.’s Br., Exh. 1, Job Description for Director for the Clerk of
the Board, at 1. The position is currently vacant. Def.’s Br. at 12. The Clerk contends
that the position is similar to the Director of Procurement, which both parties agree
is exempt. Id. But the similarity is explained by the bifurcation of responsibilities
held by a single predecessor, the Director of Clerk of the Board and Procurement. Pls.’
Resp. Br. at 13. As the Plaintiffs correctly point out, it was the Director of Procure-
ment that retained political discretion in budgeting, contracting, and procurement,
whereas the Director of the Clerk of Board inherited mostly clerical responsibilities.
Id.
A review of the job description proves this point. The job duties include draft-
ing, editing, and revising web content, and responding to internal and external com-
munications. Job Description for Director for the Clerk of the Board at 2. The Clerk
contends that the person holding this position would be involved in “policy” because
the Director would play a role in developing the Clerk’s Policy Manual. Def.’s Br. at
13. But there is no reason to believe that this pertains to public policy as opposed to
internal-office policy. And the Clerk does not establish that this position’s “involve-
ment” in policy-making would entail any discretion requiring political alignment with
the Clerk.
The Clerk also argues, as it does for many of the positions, that the Director
would have access to confidential information. Def.’s Br. at 13. But mere participation
in confidential meetings or access to confidential information does not automatically
render the position as exempt. See Meeks v. Grimes, 779 F.2d 417, 420–21 (7th Cir.
1985). Instead, political considerations must be reasonably necessary for effective
performance, and there is insufficient evidence that this Director will have access to
the kind of confidential information that would require a particular political bent. So
the Clerk’s motion as to this position is denied. The denial is without prejudice: the
Clerk may move again on this position if the Clerk can submit evidence (if it exists)
that describes specifically how the position’s role in developing the Clerk’s Policy
Manual warrants consideration of political affiliation.
2. Director of Cybersecurity
The Director of Cybersecurity reports to the Deputy Clerk of Information Tech-
nology and is responsible for managing and maintaining multiple security technolo-
gies. R. 7378-3, Def.’s Br., Exh. 2, Job Description for Director of Cybersecurity, at 1.
Most importantly for purposes of this motion (and probably for the job too), the holder
of this position also plays a role in “develop[ing] the policy for election security and
develop[ing] the strategy to respond to security breaches.” Id.
Before recent times, one would have thought (or at least hoped) that election
security is a non-partisan issue and that political affiliation should not matter to ef-
fectively performing a cybersecurity role of this kind. But the unfortunate reality is
that, in contemporary government, election security indeed has become politicized.
Obviously, voting-rights protections are paramount in our system of government,
whether those protections are expressed through the First Amendment, the Fifteenth
Amendment, of federal and state statutes. So partisan-political policies and decisions
cannot cross those lines. In today’s climate, however, an elected official running the
voting operation of a unit of government would have valid reasons for wanting a po-
litical ally to manage election cybersecurity. Consider, for example, if the Cybersecu-
rity Director were to advance, on political grounds, a conspiracy theory that Vene-
zuela had hacked into voting machines during what was actually a free and fair elec-
tion. The Clerk ought to have free political rein in that scenario. Indeed, the job de-
scription for this position credibly delineates duties during politically sensitive situ-
ations, including identifying security risks and investigating cybersecurity attacks.
Job Description for Director of Cybersecurity at 2. Were it not so that elections man-
agement is a partisan issue. But it is. So the Clerk’s ability to carry out public policy
through this directorship can be undermined if it is occupied by a political adversary.
Although it is a close call, the Clerk’s motion on this position is granted.
3. Director of IT
This position (which is currently vacant) reports directly to the Deputy Clerk
of IT and oversees the technical infrastructure within the Clerk’s Office. R. 7378-5,
Exh. 3, Job Description for Director of IT, at 1. The Clerk contends that this position
should be exempted given its access to confidential information and politically sensi-
tive discussions. Def.’s Br. at 14. The Plaintiffs respond that this is true of every IT
technician. Pls.’ Resp. Br. at 15. The Plaintiffs also argue—to which the Clerk pro-
vides no rebuttal—that “the Clerk puts her confidential and political communications
on a public server subject to FOIA.” Id. Given these facts, the job description, which
largely delineates the need for technical expertise, is insufficient evidence to support
political affiliation as relevant to this position’s effective performance. The Clerk’s
motion as to this position is denied without prejudice. The Clerk may move again on
this job if there is more evidence (should it exist) supporting the need for this position
to be politically aligned with the Clerk for effective performance, or if there is evi-
dence to refute the generally FOIA-able nature of the servers to which the IT Director
would have access.
4. Director of Recording Operations
The Director of Recording Operations (a currently vacant position) reports to
the Deputy Clerk of Recording Operations and is responsible for the day-to-day oper-
ations and supervision of the Recording Operations Division staff. R. 7378-7, Def.’s
Br., Exh. 4, Job Description for Director of Recording Operations, at 1. Here, the job’s
duties—at least as set forth in the job description—do support the need for the Clerk
to consider political affiliation in filling this position. First, the job description states
that the occupant will represent the Clerk in meeting with other government officials
by “[a]ttend[ing] conferences and meetings with various Cook County agencies on be-
half of the Clerk.” Id. at 3 (emphasis added). Second, the role also involves “mak[ing]
recommendations to the Clerk, Chief Deputy Clerk, and Deputy Clerk of Finance re-
garding operational staffing or equipment that may have a budgetary impact.” Id.
Put another way, this Director makes direct recommendations to three top leaders of
the Clerk’s Office on the development of the budget. “Budgeting decisions often are
to municipal government what matters of foreign policy are at the national level.”
Bogart v. Vermilion Cty., Illinois, 909 F.3d 210, 214 (7th Cir. 2018).
Having said that, because this position is new to the Clerk’s Office and is cur-
rently vacant, the motion to deem this position as exempt is only provisionally
granted. Every 45 days (starting with the entry of this Order), the Clerk must provide
the Plaintiffs and the Compliance Administrator with relevant evidence that the role
is being fulfilled in a way that warrants the exemption. For example, if the Director
has met with other agencies on behalf of the Clerk, or if the Director has contributed
to budgetary planning, then records reflective of those activities must be disclosed.
5. Director of Training and Professional Development
This position (which is currently occupied) is primarily tasked with leading
internal and external training programs. R. 7378-8, Def.’s Br., Exh. 5, Job Description
for Director of Training and Professional Development, at 1. The Clerk contends that
the holder of this position has the ability to affect or to undermine elections because
the Director develops and teaches the training curriculum for election judges and
polling place technicians. Def.’s Br. at 16. But this alone does not explain how political
considerations are relevant to effective performance. The Clerk offers an analogy to
the administrative law judge in Thompson v. Ill. Dep’t of Prof’l Regulation, 300 F.3d
750 (7th Cir. 2002), but the comparison is inapt. There, the “ALJ perform[ed] a vari-
ety of functions overseeing activities of subordinates, implementing policy and broad
goals, and providing legal advice to numerous professional discipline boards.” Id. at
757. Unlike the position described here, the ALJ in that case exercised substantial
discretion in setting goals and policies. Here, the Director oversees training of policies
set by others. Without more, the Clerk’s motion as to this position is denied. The Clerk
may move again for the exemption if it can submit affidavits or other evidence (if it
exists) demonstrating how the Director’s role in developing training curriculum
would warrant political alignment with the Clerk for effective performance.
6. Director of Real Estate and Tax Services
This position, which is currently occupied, reports to the Deputy Clerk of Real
Estate and Tax Services. R. 7378-10, Def.’s Br., Exh. 6, Job Description for Director
of Real Estate & Tax Services, at 1. Here, the duties as set forth in the job description
do weigh in favor of exemption. This Director “[a]ssists the Chief Legal Counsel with
legal issues that may arise” related to the department, “[e]xercises discretion in im-
plementation and execution of policies related to property tax and records to carry
out the Clerk’s vision” for the department, “[w]orks with the Communications Divi-
sion to respond to press inquiries,” and “[c]ontributes to long range plans for the de-
partment.” Id. at 1–2. So those duties come with discretionary, advisory, strategic,
and representative responsibilities that warrant political consideration in who fills
it.
Having said that, there is a paucity of evidence that the incumbent is carrying
out these exemption-justifying duties. The Clerk’s motion on this position is provi-
sionally granted. Every 45 days (starting with the entry of this Order), the Clerk must
provide the Plaintiffs and the Compliance Administrator with relevant evidence that
the role is being fulfilled in a way that warrants the exemption.
7. Director of Vital Records
This position (which is currently occupied) reports to the Deputy Clerk of Vital
Records. The Vital Records Department receives and manages confidential docu-
ments, including birth, marriage, and death records. R. 7378-12, Def.’s Br., Exh. 7,
Job Description for Director of Vital Records, at 1. The Clerk contends that the role
has historically been involved in developing public policy, as opposed to merely inter-
nal policy pertaining to the management of documents. Def.’s Br. at 19. As evidence,
the Clerk proffers that the Director of Vital Records reached out to other county clerk
offices in Illinois to inquire how they handled registration of assumed business
names. Id. This is explained in a letter from Deputy Chief of Staff and Labor Counsel
James Gleffe. See R. 7378-18, Def.’s Br., Exh. 11, Gleffe Letter at 3. But as described
in the letter, the Director’s role was to merely collect information from other counties.
There is no basis to conclude that the Director had any influence in shaping the re-
sulting policy. Even assuming that the Director had significant influence, the Clerk
does not explain how exercising that influence over this narrow issue warrants polit-
ical consideration in determining effective performance.
The letter also asserts that the Director was involved in discussions around a
policy issue pertaining to changes in gender designations on marriage certificates.
Gleffe Letter at 3. But the letter merely declares—without specificity—that the Di-
rector has worked to “examine this issue.” Id. Although the issue of gender designa-
tions on vital records might very well be part of a larger public-policy debate (and
perhaps pending legislation), there is insufficient detail on what the Director’s role
was in this policy discussion. Nor is there any other reason to believe, based on the
job description, that this position ought to be exempt. The Clerk’s motion as to this
position is denied.
8. Manager—Tax Extensions/GIS
This position (which is currently filled) reports directly to the Director of Real
Estate and Tax Services. R. 7378-14, Def.’s Br., Exh. 8, Job Description for Manager—
Tax Extensions/GIS,. This is the one position out of the disputed 10 which is not a
Director-level position; instead the Manager reports to a Director. The Clerk contends
that, as described in the letter authored by Gleffe, the Manager was involved in the
implementation of a tax policy that allowed for electronic, rather than in-person, sub-
mission of tax levies. Def.’s Br. at 20; Gleffe Letter at 4. Again, however, the Clerk
only represents in vague terms that the Manager was simply “involved” in this pro-
cess and does not explain why tax-levy receipt methods warrant political considera-
tions. Gleffe Letter at 4. Although the job description entails some duties that would
ordinarily support exemption under Branti (for example, liaising with other agencies
on behalf of the Clerk), Job Description for Manager—Tax Extensions/GIS at 1, the
scope of those duties is limited to narrow technical grounds, namely, GIS and Tax
Mapping. Id. The Clerk’s motion as to this position is denied.
9. Director of Elections Operations Center
This position (which is unoccupied right now) reports to the Deputy Clerk of
Elections and exercises autonomy and discretion over the day-to-day operations of
elections. R. 7378-15, Def.’s Br., Exh. 9, Job Description for Director of Elections Op-
erations Center, at 1. Much like the reasons supporting the exemption of the Director
of Cybersecurity, the Clerk would have legitimate reasons for wanting a political ally
to fill this position. The job description bears this out. The position entails crisis man-
agement duties, including “[s]ecur[ing] the Elections Operations Center and re-
spond[ing] to threats or security breaches.” Id. The duties also require representing
the Clerk in a public-facing, visible capacity by “[c]ommunicat[ing] the Clerk’s poli-
cies, including but not limited to the conduct of an orderly election, to vendors and
the public,” and “[a]ct[ing] as a proxy for the clerk, as necessary in the day-to-day
implementation of election related … policies.” Id. at 2. The Clerk’s motion on this
position is granted.
10. Director of Human Resources
And finally, the Clerk proposes that the Director of HR be deemed an exempt
position. Def.’s Br. at 22. The Clerk hints that the recent termination of the prior
Director’s employment demonstrates the need for an exemption, but the brief does
not elaborate on the reason for the termination. Id. at 23. Without more, the Court
cannot assume that the circumstances surrounding the termination demonstrate the
need for the position to be politically aligned with the Clerk.
The Clerk also argues that a virtually identical position—The Assistant Chief
Deputy Clerk of Personnel Services—has been Court approved as exempt. Def.’s Br.
at 23. In fact, however, there are important differences in the job descriptions for
those positions. For example, the Assistant Chief Deputy Clerk of Personnel Services
“[a]ssists the Chief Deputy Clerk of Personnel Services with making departmental
budgetary recommendations.” R. 7378-20, Def.’s Br., Exh. 13, Job Description for As-
sistant Chief Deputy Clerk of Personnel Services, at 1. No such duties are listed in
the Director of HR’s job description.
Despite the Clerk’s contention that the position “participates in policy deci-
sions,” Def.’s Br. at 24, the current record shows that the Director participates only
through implementing existing policy directives (for example, “[r]ecommend, prepare,
interpret and explain all Cook County Clerk Human Resources Divisional policies to
all staff members.”). R. 7378-16, Def.’s Br., Exh. 10, Job Description for Director of
Human Resources, at 2. In Milazzo v. O’Connell, the Seventh Circuit held that an HR
Administrator who primarily implemented existing policies could not, as a matter of
law, be considered exempt under Branti. 108 F.3d 129, 132 (7th Cir. 1997). There, the
fired employee’s duties included “implementing … hiring policies, administering the
summer job programs, providing … information regarding job applicants, and work-
ing on budget and payroll issues.” Id. The Seventh Circuit affirmed denial of the de-
fendant’s motion to dismiss, concluding that “it is not clear as a matter of law that
plaintiff held a confidential or policy-making position or that party affiliation was an
appropriate requirement for the effective performance of her duties.” Id. at 132–33.
Similarly, review of the duties ascribed to the Director of HR reveals them to be
largely executory of directives or policies established somewhere higher-up in the hi-
erarchy.4 So the Clerk’s motion as to this position is denied, though without prejudice.
The Clerk may move again for the exemption if it can offer evidence that demon-
strates how the Director’s role in implementing HR policy warrants political affilia-
tion.
IV. Conclusion
The Clerk’s motion to amend the exempt list, R. 7378, is granted in part and
denied in part:
1. Director for the Clerk of the Board: denied without prejudice.
2. Director of Cybersecurity: granted.
3. Director of IT: denied without prejudice.
4. Director of Recording Operations: provisionally granted with 45-day up-
dates.
5. Director of Training & Professional Development: denied without prejudice.
6. Director of Real Estate and Tax Services: provisionally granted with 45-day
updates.
7. Director of Vital Records: denied.
8. Manager—Tax Extensions/GIS: denied.
9. Director of Elections Operations Center: granted.
10. Director of Human Resources: denied without prejudice.
4It is worth noting too that exempting an HR Director could undermine First Amend-
ment protections: employees might very well be reluctant to report certain types of workplace
harassment or to report politically connected coworkers (or both) to the human resources
department if the HR Director was hired based on political loyalty.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 11, 2021