# Stott v. Martin

> District Court, E.D. North Carolina · March 31, 1989 · 725 F. Supp. 1365

URL: https://www.frixlaw.com/law-library/cases/1407017

## Case

- **Full name:** Bobby STOTT, Joseph Register, and Lonnie Michael Cayton, on Behalf of Themselves and Others Similarly Situated, Plaintiffs, v. James G. MARTIN, Individually and in His Official Capacity as Governor of the State of North Carolina, Et Al., Defendants
- **Court:** District Court, E.D. North Carolina
- **Decided:** March 31, 1989
- **Citations:** 725 F. Supp. 1365; 1989 U.S. Dist. LEXIS 13544; 1989 WL 138764
- **Precedential status:** Published
- **Opinion:** Opinion by Britt
- **Judges:** Britt
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Stott v. Haworth, 916 F.2d 134 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1407017

## How later opinions describe it (automated extraction)

- holding that position of state assistant secretary of commerce who was chief lobbyist for department of commerce fell into Branti exception

## Opinion text

ORDER
BRITT, Chief Judge.
This matter is before the court on motions by defendants, jointly and individually, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Memoranda and other materials have been submitted by all parties, a hearing has been held, and the matter is ripe for disposition.
BACKGROUND
This case is a consolidation of three actions brought by employees of the State of North Carolina filed on behalf of themselves and a class composed of other state employees who allege that they were subjected to adverse personnel actions, including terminations, demotions, transfers, coerced resignations, and coerced retirements, in violation of their rights under the First and Fourteenth Amendments of the United States Constitution.
Following the change from the Hunt administration to the Martin administration large numbers of state employees in exempt positions
1
were subjected to adverse personnel actions. The reasons for these personnel changes are in dispute.
Upon Governor Martin’s victory in the November 1984 election, a transition team was formed to facilitate the change of administration. This team helped establish personnel policy, assisted in implementing the new governor’s agenda, reviewed the efficiency of the nine departments, and assisted the new department heads. The exact nature of the personnel policy established during the transition is disputed.
The transition team was later replaced by a personnel committee and a special department within the Governor’s office headed by Ms. Wilma Sherrill. The personnel committee and Ms. Sherrill apparently played a very important role in the large number of personnel changes that took place during 1985 and 1986. There is some dispute regarding whether either the committee or Ms. Sherrill's office exercised a “clearance” power over proposed personnel changes. There are some indications that Governor Martin had the final word over personnel committee recommendations, including terminations.
See
Rann Deposition, p. 62; Carl Deposition, pp. 25-26. However, the exact relationship between the Governor, the personnel committee and Ms. Sherrill, as well as their practices, are disputed.
The defendants concede that there were lists of proposed dismissals which were forwarded to the personnel committee by the various departments.
See
Response to Motion for Class Certification, p. 10. They deny, however, that any employee was fired for purely partisan political reasons other than those for which political affiliation is an appropriate requirement.
The political affiliation and activities including campaign contributions of persons in existing positions, as well as those seeking positions, were apparently well documented.
See
Faircloth Deposition, p. 28; Goodson Deposition, p. 18. The extent to which these documents were used in personnel administration is less than clear.
Defendants, in their joint motion, contend that plaintiffs have not been subjected to unlawful adverse personnel actions and that they are entitled to judgment as a matter of law. They also contend that there is insufficient evidence to support plaintiffs’ claim of a conspiracy. The defendants who have been sued in their individual capacities contend that they are protected by the doctrine of qualified immunity. The defendants who have been sued only in their official capacities contend that they should be dismissed as injunctive relief is not available against them.
*1381
The defendants, in their individual motions, contend, alternatively, that most of the positions which the plaintiffs and class members held were ones for which political affiliation was an appropriate requirement; that some of the occupants of those positions were discharged for engaging in improper political activity while at work; and, that others were discharged for cause.
The court has thoroughly reviewed all of the job descriptions, depositions, affidavits and other documents which have been submitted. After doing so, it is apparent that a decision in this case will invoke the principles of law set forth in a considerable number of cases of the Supreme Court of the United States and lower federal courts, most of which are canvassed below.
I. SUMMARY OF APPLICABLE LAW
ELROD-BRANTI
In
Elrod v. Burns,
427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976), a plurality held that the practice of patronage dismissals violates the First and Fourteenth Amendments of the United States Constitution. Justice Brennan noted that “patronage dismissals severely restrict political belief and association ... [and] [t]hough there is a vital need for government efficiency and effectiveness, such dismissals are on balance not the least restrictive means for fostering that end.” 427 U.S. at 372 , 96 S.Ct. at 2689 .
Elrod
did, however, recognize that “[t]here is also a need to insure that policies which the electorate has sanctioned are effectively implemented. That interest can be fully satisfied by limiting patronage dismissals to policymaking positions.”
Id. Elrod
did not provide any further substantive guidance in assessing these types of claims.
Branti v. Finkel,
445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), filled some of the gaps left by
Elrod. Branti
moved away from
Elrod’s
“policymaking” label and established the following: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518 , 100 S.Ct. at 1294 . As the court has noted in a previous order, the burden is on the defendants to show that political affiliation was necessary or essential to the effective performance of the positions involved.
See Jones v. Dodson,
727 F.2d 1329, 1334 (4th Cir.1984). Application of the
Elrod-Branti
analysis is a matter of law for the court.
In defendants’ joint memorandum in support of summary judgment they rely principally on the law of the First Circuit. Following the fall elections in 1984, the commonwealth government of Puerto Rico underwent a change of administration. Substantial personnel changes took place and much litigation ensued. The leading First Circuit case which sets forth a test for determining the propriety of personnel changes based on political affiliation is
Jiminez Fuentes v. Torres Gaztambide,
807 F.2d 236 (1st Cir.1986).
Jiminez
set forth a two-pronged test for determining whether political affiliation is an appropriate requirement for the effective performance of a position:
(1) Does the particular position relate to partisan political interests or concerns, that is, “does the position involve government decisionmaking on issues where there is room for political disagreement on goals or their implementation? Otherwise stated, do party goals or programs affect the direction, pace, or quality of governance?”
(2) “If the first inquiry is satisfied, the next step is to examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that political affiliation is an equally appropriate requirement.”
807 F.2d at 241-42 .
This court does not accept the First Circuit’s test or its application, concludes that it is too broad, not in accordance with the Supreme Court’s command in
Branti ,
and does not aid the decisional process. Rather, the court feels that
Branti
itself ade
*1382
quately defines the test which must be applied by the court in a position-by-position analysis, taking into consideration
both
the description of the job, if there is one, and such other evidence as is available on the actual duties performed by the occupant.
One of the few uniform points in the decisions is to admit that the determination of whether a position is one for which political affiliation is an appropriate requirement is not an easy one.
Elrod,
427 U.S. at 367 , 96 S.Ct. at 2686 ;
Branti,
445 U.S. at 518 , 100 S.Ct. at 1294 ;
Jimenez Fuentes v. Torres Gaztambide,
807 F.2d at 241 (“[identifying generic categories of positions where partisan selection and rejection are permissible has, as we have seen, proven to be an elusive and intractable task.”).
The court begins this task by noting the obvious and important proposition that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining
governmental
effectiveness and efficiency.”
Branti,
445 U.S. at 517 , 100 S.Ct. at 1294 ,
citing Elrod,
427 U.S. at 366 , 96 S.Ct. at 2686 (emphasis added). This proposition requires the court to examine both the nature of the employee’s duties and the government’s interests.
In
Elrod
the court pointed out that: The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.
427 U.S. at 367-68 , 96 S.Ct. at 2686-87 . While under
Branti
the court is no longer limited to labels such as “policymaker,”
Elrod’s
elaboration on the inquiry is still relevant and provides a useful touchstone for the court.
See
p. 1381,
supra.
Application of the
Branti
principles to some of the positions at issue here brings into consideration the decision of the Fourth Circuit in
Delong v. United States,
621 F.2d 618 (4th Cir.1980) as it is alleged that there were transfers
2
which amounted to a dismissal.
Under
Delong
application of
Branti
principles is limited to dismissals or adverse personnel actions that are the substantial equivalent of a dismissal. The question is “whether ... the challenged reassignment and [or] transfer can reasonably be thought to have imposed so unfair a choice between continued employment and the exercise of protected beliefs and associations as to be tantamount to the choice imposed by threatened dismissal.” 621 F.2d at 624 . In so holding, the court set forth a rather complicated factual test.
Delong
demands that “both objective and subjective factors pertaining to the officeholder’s expectations and reliance upon the continuation of particular assignments and geographical locations in his employment” be considered.
Id.
[I]t would [also] be appropriate to take into account any special circumstances, including subjective expectations and reliance on the officeholder’s part in relation to the particular position held, that were actually or constructively known to the official making or threatening the transfer or reassignment, and that might reasonably be thought to increase the difficulty of the choice imposed upon the employee.
Id.
Plaintiffs contend that
any
adverse personnel action is compensable under
Branti .
In
Jones v. Dodson
the court expressly reserved the question of whether the principle can be applied to “other alterations in the employment relationship.” 727 F.2d at 1334, n. 5 . This court, however, is bound by the
Delong
ruling and must hold the only alteration in the employment relation
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ship that is compensable is a firing or a transfer which is the “substantial equivalent of a dismissal.”
Delong .
Summary disposition of
Delong
claims will be rare as the analysis is not simple and may involve disputed facts. In the final analysis resolution of the issue may involve only a question of law for the court or it may involve issues of fact for the jury.
PICKERIN G-GIVH AN-CONNICK
Pickering v. Board of Education, etc.,
391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), found that a teacher’s First Amendment rights were violated when he was dismissed for writing a letter to a local newspaper regarding a matter of public concern. In so holding, the court noted that “[t]he problem in any case is to arrive at a balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568 , 88 S.Ct. at 1734 . In undertaking this balancing test the court examined whether or not a restriction of a particular public employee’s freedom of speech was necessary to maintain “discipline by [the employee’s] immediate superiors,” and whether or not a question was raised as to maintaining “harmony among co-workers.” 391 U.S. at 570 , 88 S.Ct. at 1735 . The court further examined whether criticism by a public employee impeded the employee’s “proper performance of his daily duties,” or “interfered with the regular operation of the ... [office/agency] generally.” 391 U.S. at 572-73 , 88 S.Ct. at 1736-37 . Ultimately, the court held that the teacher’s employment relationships with the board were “not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to proper functioning.” 391 U.S. at 570 , 88 S.Ct. at 1735 .
Givhan v. Western Line Consol. School,
439 U.S. 410 , 99 S.Ct. 693 , 58 L.Ed.2d 619 (1979), made clear that the First Amendment affords protection to a public employee who communicates matters of public concern privately, rather than publicly, to his or her employer.
Givhan
also noted that in determining whether a private expression is protected the court may have to consider other factors not stated in
Pickering .
Specifically, “[w]hen a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message but also by the manner, time, and place in which it is delivered.” 439 U.S. at 415, n. 4 , 99 S.Ct. at 696 n. 4.
Connick v. Myers,
461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), did not set forth any definitive standard for assessing statements made by public employees. Instead, the court further developed the
Pickering
balancing test and established a multi-tiered, somewhat mathematical approach to safeguarding public employees’ speech on matters of public concern.
Con-nick
reminds us that the threshold inquiry is one of content, that is, is the employee’s expression related to any matter of public concern? Moreover, “[w]hether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” 461 U.S. at 147-48 , 103 S.Ct. at 1690-91 . This determination is a question of law for the court, 461 U.S. at 148, n. 7 , 103 S.Ct. at 1690-91, n. 7 .
Connick
expressly held that “the State’s burden in justifying a particular discharge
varies
depending upon the nature of the employee’s expression.” 461 U.S. at 150 , 103 S.Ct. at 1691 (emphasis added). Hence, the content of the employee’s expression will be considered twice. First to determine whether it was on a matter of public concern, and then again, to determine the relative degree of public interest, i.e., “a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.” 461 U.S. at 152 , 103 S.Ct. at 1692-93 .
The following questions or components should be considered before arriving at the most appropriate balancing test: (1) whether the employee’s expression impeded his ability to perform his responsibilities; (2) whether close working relation
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ships are essential to fulfilling public responsibilities such that “a wide degree of deference to the employer’s judgment” would be appropriate; (3) the manner, time, and place of expression (if the employee’s expression takes place at work, then an employer’s “fears that the functioning of his office was endangered” may be appropriate); and, (4) whether the context of the expression may be viewed as threatening the authority of the employer to run the office. 461 U.S. at 151-53 , 103 S.Ct. at 1692-93 .
Once these factors have been considered, and the appropriate weights given, they enter the balancing test. Ultimately, resolution
requires striking the proper constitutional balance between the opposing interests, and this in turn requires weighing the degree of “public concern” legitimately had in the particular expression of ideas — as measured by the expression’s content and context — against the degree to which the employee’s conduct is justifiably viewed by the public employer as an actual or threatened disruption of the conduct of government operations for which the employer is responsible.
Jones v. Dodson,
727 F.2d at 1334 ;
see also Connick,
461 U.S. at 152 , 103 S.Ct. at 1692-93 . The burden of convincing the court that the balance favors the governmental interest is the employer’s.
Jones,
727 F.2d at 1334 . Defendants contend that the court must engage in a
Pickering
analysis for most of the class members. However, a review of the materials presented discloses that most often the analysis will be under
Mt. Healthy,
as the reason asserted for the discharge implicates a breach of rules of employment.
MT. HEALTHY
In
Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977), the Court addressed the problem of mixed motive discharges and set forth a “but for” test. “Initially ... the burden [is] properly placed upon [the employee] to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ — or to put it in other words, that it was a ‘motivating factor’ ” in the decision to fire or otherwise impose adverse personnel actions. 429 U.S. at 287 , 97 S.Ct. at 576 . Once plaintiffs meet this burden, a determination must be made as to whether the defendants “would have reached the same decision ... even in the absence of the protected conduct.”
Id.
A claim based upon a discharge that is — whether by concession or by proof — a “mixed motive” one of the
Mt. Healthy
type, will ordinarily be resolved simply by
fact finding
that sorts out the motives under the
Mt. Healthy
“but-for” test ...
A critical issue in this type case is therefore likely to be the threshold motivational one: for what reason[s] was the employee discharged? If raised by the evidence, this is
quintessentially
a
factual issue.
Jones v. Dodson,
727 F.2d at 1335-36 (emphasis added).
Applying the principles enunciated in these cases on motions for summary judgment involves the application of Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate where the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
In making this determination the court observes that even though the application of the
Elrod-Branti
(hereafter
Branti)
and
Pickering-Givhan-Connick
(hereafter
Pickering)
tests are ultimately matters of law for the court, disposition by summary judgment will not always be appropriate. In some instances there simply has not been sufficient information presented to the court for it to make a decision. In others, especially those calling for a
De-long
analysis, the facts may be in dispute. Where the duties are clearly defined and the parties are essentially in agreement with regard thereto, summary judgment is appropriate and will be entered. Where the court is unable to make a summary determination, ultimate resolution will require the presentation of evidence.
*1385
Application of the
Mt. Healthy
test will rarely result in summary determination because, by its very nature, a mixed-motive discharge will require resolution of factual disputes by the jury.
II. COMMENT
The fact that we have three branches in our system of government is thought of most often in the context of checks and balances; i.e., by dispersing power among the three branches and by providing checks of one branch over another power is balanced. This avoids the concentration of power in the hands of one, or a few and, thus, the perils of totalitarianism which, after all, is the form of government our forefathers were seeking to avoid when the Constitution was written. However, this does not mean that there may not be any centralization of power in one branch or, indeed, in one person. In order for government to serve the people effectively and efficiently, which
is
its purpose — someone must have sufficient power to
direct
government. More importantly someone must have power to
redirect
government when the people so desire. And, of course, in our constitutional scheme it is the executive which provides that direction. The legislative branch of government, composed of representatives of geographical segments of the population, enacts the laws deemed by them to be in the best interest of society. The judicial branch of government, chosen in such manner as the constitution and laws direct, interprets the law and its application to insure that the constitutional standards are met and legislative intent carried out. But it is the executive branch of government that responds to the will of
all
of the people and proposes laws to the legislature and, once they are enacted,
executes
them. Power then
is
concentrated, to the extent permitted by the constitution, in the executive to
direct
and, when the people desire,
redirect
government. The governor, as the chief executive, and elected by
all
the people,
3
is the most powerful official in state government.
When a governor is elected it is important that he gain control of the machinery of state government to insure that the programs of his administration — those things which caused him to be elected — are carried out. In order to do that he
must
place people in key positions throughout state government who are not only committed to his vision for the state but who are also loyal to him. Former Governor James B. Hunt, Jr., a Democrat and Governor Martin’s immediate predecessor, listed by defendants as an expert witness, has testified in this action, by deposition, that there are at least four qualifications those key people must have. They must be
loyal
to the governor,
responsive
to his suggestions,
effective
in carrying out their duties, and
committed
to his program.
Gaining control of state government is no easy task. When Governor Hunt began his second term in 1980 there were some 46,000 to 48,000 people employed by the state. No doubt that number has continued to grow as the population of the state grows and the people demand more services from government.
It is also important for a new governor to gain control of state government quickly if his programs are to be put into effect. This may appear to state the obvious, but it is especially true because of the budgetary process of state government in North Carolina. The governor’s programs can be carried out only if the resources — the money — are available. Those resources are provided, of course, by the legislature which meets in North Carolina, in its principal session, in January of odd numbered years.
4
A newly-elected governor is inaugurated in January of odd-numbered years shortly before the legislature convenes. Thus, he has only a short period of time to attempt to place his imprint on a budget which has been prepared, in large measure,
*1386
by the administration which is being replaced.
5
Thus, when a governor is elected on the first Tuesday of November he must immediately set about the task of preparing for an orderly transition of the reins of power some sixty days thereafter. As with the national administration in Washington facing the same task on a much larger scale, this is done by the use of a transition team. As one would expect the incoming governor’s team
6
is composed of people who helped the governor get elected and who are loyal to him. One of the first tasks facing the new team is to identify those positions in state government where it is necessary for the new governor to place
his people;
i.e., people who meet the criteria outlined by former Governor Hunt. Thus, it is necessary for there to be coordination not only among those who will ultimately form the governor’s staff but also among those who will provide leadership in the various departments and agencies of state government. So it is that in forming a new administration the governor, through his transition team, first selects the people who will head the departments and agencies and then, with their input, those who will fill the other critical positions throughout state government.
Once the governor takes office the task of placing his people in key positions has just begun. Since it is the governor to whom the people look to see that their mandate for his administration is carried out, it is not surprising that he maintains direct control over personnel matters throughout state government. This is done, most often, through a member of the governor’s immediate staff.
The transition of government as outlined above, or its equivalent, has been taking place in this state and nation since the founding of The Republic. Since at least the days of President Andrew Jackson this transition has been referred to as the “spoils system’’, a term that, with time, came to have a less than favorable connotation. Even though it is necessary for a new administration to obtain control, the spoils system brought with it the inevitable abuse of power as career government employees were fired, demoted, or transferred to make room for supporters of the new administration. As government grew, and the need for professionalism in government employment became apparent, there arose a demand for protection for civil servants. This led to the enactment of civil service laws.
The North Carolina State Personnel Act (hereafter “the Act” or SPA) is contained in General Statute § 126-1,
et seq.,
and provides that “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause.” N.C. Gen.Stat. § 126-35. However, the Act exempts certain listed employees and provides a mechanism for the governor to designate as exempt certain other “policy-making” positions. N.C.Gen.Stat. § 126-5. The Act also contains remedial provisions for covered employees who have been aggrieved.
The SPA attempts to balance the need for employee security against the necessity of executive control by the “exemption” mechanism. An employee holding a position that is non-exempt, and this covers some 98% of state employees, is “protected” by the Act and may not be discharged or treated unfavorably, without cause. An exempt employee, on the other hand, is not protected by the Act and may be discharged without cause.
When James G. Martin became governor he could have requested the resignation of all exempt employees under his control,
7
some 1,400 to 1,500, without stat
*1387
ing a cause. However, he could not discharge any exempt employee
solely
because of his political affiliation, or because he did not have the endorsement of a supporter of the governor, unless the position held by that employee was one for which political affiliation is an appropriate requirement.
See Elrod, supra; Branti, supra.
Governor Martin, as did his predecessor Governor Hunt, chose not to request the resignation of every state employee in an exempt position, but rather, to make an evaluation of the occupant of each position to see whether that employee fit into his plans for running state government.
8
In the course of making those evaluations the alleged facts giving rise to this lawsuit occurred as the proscribed political considerations came into play even for positions for which political affiliation is not an appropriate requirement.
The proscription against firing an exempt employee does not mean that the Governor could not, in making a decision on whether to retain him, consider his party affiliation or whether he supported the Governor’s opponent in the last election, so long as the position which the employee held is not entitled to
Branti
protection. Nor does it mean that the Governor could not consider the opinion of his supporters in making his decision. Party affiliation and support of candidates may be indications of the loyalty and commitment the Governor could expect from that employee. Likewise, the
perception
by the public of the Governor’s success in carrying out his program is gauged by his supporters throughout the state. Thus, it is natural, and certainly not suspect, for the Governor to seek the opinion of his supporters when filling key positions.
In his dissent in both
Elrod
and
Branti ,
Justice Powell forecast the day when federal judges would face the task of deciding whether political affiliation is an appropriate requirement for a particular position in government, a task he felt should best be left to the legislative and executive branches. That day has arrived. Because of the
manner
in which changes were made in exempt positions when Governor Martin took office, this court must now determine, with regard to the position held by each class member, whether political affiliation was an appropriate requirement for the position.
III. ANALYSIS OF CLASS MEMBERS BY DEPARTMENT
The court will now undertake an analysis of the individual defendants’ motions for summary judgment as they relate to different positions and the occupants of those positions.
A.
DEPARTMENT OF CORRECTION
Defendant Aaron J. Johnson
Defendant Aaron J. Johnson (Johnson)
9
is Secretary of the Department of Correction. North Carolina General Statute § 143B-261 provides:
It shall be the duty of the Department to provide the necessary custody, supervision, and treatment to control and rehabilitate criminal offenders and juvenile delinquents and thereby to reduce the rate and costs of crime and delinquency.
This department, containing both the Division of Prisons and the Division of Adult Probation/Parole, has nineteen class members remaining. One class member was employed in the Division of Adult Probation/Parole, another in the Secretary’s office, and all others in the Division of Prisons.
Gordon Sauls
Class member Sauls is a former Branch Manager in the Division of Adult Probation and Parole who retired in 1985.
*1388
Johnson argues that Sauls’ position as a branch manager was one for which political affiliation is an appropriate requirement. He contends that Sauls’ position as a branch manager is comparable to that of an area administrator in the Division of Adult Probation and Parole. Sauls, as branch manager, oversaw approximately 55-60 people in a nine-county area. His responsibilities included
see[ing] that all Adult Probation/Parole work in the 9-county branch was done each day, that [all] courts were covered by officers, [that] new clients [were] properly received, classified and assigned for supervision ... [that] all caseloads [were] managed and supervised, [and] all violators returned to court and the Parole Commission.
Sauls Response to Defendants’ Joint Interrogatories No. 11.
Johnson offers evidence of both the actual duties performed by Sauls and the job description for a “probation/parole branch manager.”
10
The job description includes planning, organizing and directing, and budgetary
11
duties. Sauls was also responsible for setting work standards and reviewing the work of his staff. In addition to plaintiffs’ blanket response that none of the class members held positions for which political affiliation is an appropriate requirement, they rely on defendant Martin’s interrogatory answers which state that political affiliation was not a necessary requirement for the performance of any class member. Such a response provides little guidance to the court, and the interrogatory answer is not binding as to any of the other defendants. The court, nevertheless, concludes that while Sauls’ position involved substantial responsibilities, ultimately, it required the exercise of
professional
skill and judgment, and not political affiliation with the executive.
Johnson also contends that Sauls “elected” to retire after being demoted for cause (poor performance). Plaintiffs deny the allegations of poor performance and contend that since the retirement was after the demotion and was not voluntary, it was a constructive discharge. The facts being in dispute, summary disposition is inappropriate. A
Delong
inquiry remains.
John Taylor
Class member Taylor was employed as a former District Manager in the Division of Prisons until he was transferred to the Cameron Morrison Youth Center. The district manager is apparently the chief assistant to the area administrator. This position entails supervising the administration of prisons within a district.
Plaintiffs contend that the district manager position is a fifth level position within the Division of Prisons and a seventh level position within the department as a whole and that occupants of the position “make no policy and have little, if any, input into the policy articulated in the Department Policy and Procedures Manual.”
Johnson has submitted an extensive job description which reveals a position that is obviously important to the maintenance of an efficient and effective prison system. Among the duties listed are the following:
Management and coordination of ... expenditures within the designated field command. Continual review of operational costs and request [sic] for expenditures, requisitions and job orders.... Preparation and monitoring of budgetary
*1389
requests for presentation to the Area Administrator.
Development and implementation of management tools to evaluate existing programs and provide a basis for planning new programs....
Public Relations: Assist the Area Ad-minpstrator] in the development of publications to insure the availability of accurate and timely information regarding the State Correction] Service. Presentation of programs to various outside organizations and representation of the Prisons Board or panel member at functions relating to the Correctional field.
Several of the duties above outlined involve “policymaking” matters making political affiliation “an appropriate requirement for the effective performance of the ... office.”
Branti,
445 U.S. at 518 , 100 S.Ct. at 1294 . Duties and responsibilities for the allocation of resources, and planning of budget requests are the essence of policy-making in government.
Likewise, the evaluation of programs, the planning of new programs and public relations are areas where those in power can reasonably expect to have their “own people.” The internal operation of a state prison system is not a “political” matter; the public perception of how that prison system is operated is a “political” matter. Every election on the state level has issues raised involving the prison system. Candidates for governor must advance their positions on the size and location of facilities, the period and extent of programs, and, most importantly, the allocation of resources. When a governor is elected he is entitled to have his people in sensitive, poli-cymaking positions to assist him in carrying out the mandate he received by being elected. The court holds that this is such a position and one for which political affiliation is a proper requirement.
Robert Forester
Class member Forester was employed as a Corrections Superintendent III in Asheville, North Carolina, until he was dismissed in May 1985. As such he was responsible for the total operation of the Craggy Prison located in Asheville. Defendants contend that this is a position for which political affiliation is an appropriate requirement. However, defendant Johnson offers conclusory statements, such as, “[t]he job specifics for this position shows [sic] that it was policymaking,” rather than a logical argument which would support the conclusion that the head administrator of a prison is a position for which political affiliation is an appropriate requirement.
Plaintiffs, likewise, provide the court with little guidance. They rely chiefly on Deputy Secretary Harvey’s concession that “superintendents are probably called upon simply to follow rather specific instructions.” Plaintiffs have pointed out that prison superintendents are far down the chain of command in the Division of Prisons. Forester contends that he had no authority to hire or fire employees without the approval of someone further up the chain of command. The job description offered by defendant Johnson does not rebut this. Furthermore, the job description does not indicate a policymaking role or similar duties for a prison superintendent.
Unlike the District Manager (Taylor) above, who helps formulate budget and policy, the correctional superintendent is responsible for the internal, day-to-day management of the prison, under the guidelines and within the budget developed by others. Throughout the job description there are references to the fact that “major changes” are made or approved by others.
The court concludes that Forester’s duties, while broad in scope, are clearly defined and require the exercise of professional judgment and skill, and do not require a particular political affiliation.
Johnson also contends that Forester was dismissed for cause, that is, “for improper use of State vehicle, misuse of State funds, negligence, and accepting gifts from inmates.” In his interrogatory response No. 1, Forester has denied these allegations. Accordingly, summary judgment is not appropriate on this ground.
Vance Gabriel
Class member Gabriel was an Accounting Manager III in the Division of
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Prisons. Defendants contend that this is a position for which political affiliation is an appropriate requirement. A review of the job description reveals that this position is an administrative job in the purest sense. The duties are complex and important; however, they are technical, specific, and non-discretionary. This is
not
a position for which political affiliation is an appropriate requirement.
Johnson also contends that Gabriel was dismissed for cause, that is, “for engaging in political activities on state time and property.” Gabriel has, by affidavit, denied these allegations. Accordingly, genuine issues of fact remain to be resolved. Summary judgment on this ground is inappropriate.
Marcus Hughes
Class member Hughes was employed as an Assistant Correctional Superintendent for Custody and Operations I until he was demoted in October 1985. According to Johnson, he was the superintendent’s righthand man. Since the court has concluded that the correctional superintendent is not a position for which political affiliation is an appropriate requirement, it is logical that this position, likewise, is one which falls under the protection of
Branti .
A review of the job description confirms this, revealing a position that implements well-defined policy.
Johnson also contends that Hughes was demoted “for cause for negligence and failure to maintain a satisfactory and harmonious working relationship.” Johnson has failed to provide evidentiary support for this allegation and Hughes denies this was the reason for the demotion. Since there are disputed issues of material fact, summary judgment is not appropriate on this ground. A
Delong
inquiry also remains.
Thomas Ivester
Class member Ivester was employed as the Administrator of the Cameron Morrison Youth Center (at that time Correctional Administrator I) until he was demoted. According to Ivester, his duties as head of the youth center “included a great deal of administration, treatment, and security responsibility.” The job description submitted by the defendants supports this and does not particularly support defendants’ assertion that this was a position outside of
Branti
protection.
A person in this position does work independently, but there is no significant evidence that Ivester’s position entailed policy judgments such that his political affiliation could influence or interfere with the discharge of his duties. Although the job description refers to evaluation and recommendation of “new concepts” and evaluation of budget needs, it is clear that decisions in these areas are reserved for others. The court concludes that this position is one for which political affiliation is not an appropriate requirement.
Johnson also contends that Ivester was demoted because of problems with his relationship with the local community and prison security. Ivester contends there is no evidence to support this and has provided evidentiary materials which place in serious doubt the actual reasons for the demotion. As such summary judgment on this ground is not appropriate. A
Delong
inquiry also remains to be resolved.
Bill Noland
Class member Noland was, according to Johnson, “Special Assistant to the Secretary for the Administration of the Fugitive/Extradition Program.” He was a member of the Secretary’s staff and answered to the Assistant Secretary for Programs and Development. Noland has also referred to his position as “Corrections Special Services Manager.”
12
According to Noland, his position entailed the supervision of daily operations of the extradition section. Johnson, highlighting the various budget duties and the fact that Noland supervised investigations, argues that this is a “sensitive and confidential position.” Those duties, however, appear to be non-
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discretionary and require Noland to follow established guidelines. Noland argues that his job entailed administrative, technical, nonpolicymaking duties. After review of the job description material, and Noland’s interrogatory responses, the court concludes that this is not a position for which political affiliation is an appropriate requirement.
Charles Hawley
Class member Hawley was employed as a Correctional Superintendent I for a minimum custody facility. Hawley’s position involved managing the operation of a prison field unit, in his case a minimum custody facility, which includes custody, programs, food service and maintenance. This position is no longer classified as “exempt” under the North Carolina Personnel Act.
13
Nevertheless, Johnson maintains that the position is one which relates to “partisan political interests ... [or] concerns.” Johnson offers the following: “Whether prisons should be places where inmates are to be coddled or provided with only minimal services or are to be punished or rehabilitated are likely to be significant political issues.” This comment states the obvious and misses the point. The inquiry does not depend so much on the political interest of Hawley’s profession as it does on his role within it, that is, whether Hawley occupied a position for which it could be said that his private political beliefs would interfere with the effective discharge of his duties. The extent to which independent judgment is a part of his job, and the nature and extent of discretion he may exercise are the relevant considerations. Hawley is a manager who had specific additional responsibilities because he was dealing with an inmate population. He was, nevertheless, simply an administrator and a manager. He was neither a policymaker nor a key player in the policy administration of corrections in the State of North Carolina. He occupied a position which demands professional judgment and skills, not political affiliation with the executive.
Correctional Superintendents II: Perry Hilliard, Bruce Marion, Ralph Stamey, and Phillip Styles
Class members Hilliard, Marion, Stamey and Styles were all Correctional Superintendents II in the Division of Prisons. This position entails overseeing the operation of a prison field unit within a larger prison institution. The responsibilities of the position include all those traditionally associated with any manager of a service facility with the added custody and security responsibilities attendant to a correctional institution. The job description presents a picture of a relatively independent position; however, any major changes are reviewed and approved by the prison administration. Additionally, these superintendents do not have final authority with respect to disciplinary actions against inmates or employees.
14
Upon consideration of the job descriptions and all other materials submitted, the court concludes that the duties involved in these positions are clearly defined, and involve the exercise of professional judgment and skills. Political affiliation is not an appropriate requirement for these positions.
Johnson also contends that Hilliard was allowed to retire in lieu of being dismissed for poor performance. Plaintiffs contend that there is no evidence to support the claim of poor performance. Johnson has failed to provide sufficient evidence to support this argument, and the court is persuaded that genuine issues of material fact remain to be resolved. Summary judgment on this ground is not appropriate.
Patricia McQuillan
Between 1 November 1984 and 5 January 1985 class member McQuillan was serving as a Public Information Officer. In March 1985 she was transferred and promoted to “Special Assistant for Accreditation.” Both of these positions were classified as “exempt” under the North Carolina Per
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sonnel Act. In 1987 McQuillan’s position as special assistant was abolished by the General Assembly.
15
McQuillan’s position as a public information officer involved participation in public forums and public speaking engagements. Without further elaboration, the court notes that that position was one for which political affiliation was an appropriate requirement.
See Branti,
445 U.S. at 518 , 100 S.Ct. at 1294 . Accordingly, defendant Johnson was free to have McQuillan removed from that position. Further, McQuillan’s move from that position was a promotion which cannot be characterized as an “adverse personnel action.”
McQuillan now contends that the abolition of her second position as a special assistant for accreditation was an “adverse personnel action” properly within the scope of the class defined by the court. The court disagrees. McQuillan contends that shortly before her position was abolished she was asked about her support of a Democratic candidate for governor. She further alleges that she was advised that her position was going to be abolished by defendant Johnson regardless of what the General Assembly did. Such an allegation does not state a claim within the scope of this class action. The court is concerned with what did happen, not what could have, or would have happened. The abolition of McQuillan’s position by the General Assembly is not an adverse action within the meaning of this lawsuit.
Thomas S. Ryon, Jr.
Class member Ryon was employed as the Deputy Secretary of Correction. Johnson points out that Ryon, as the deputy secretary, was the “stand-in” and chief assistant to the secretary, and contends that this was a policymaking position with significant responsibilities. The deputy secretary assumes the responsibilities of the chief budget officer and, according to the defendants, it is the responsibility of the deputy secretary to present the department’s budget to the legislature. The job description for the position provides:
Under the Secretary, this is high-level administrative and management work in developing and implementing the programs of the Department of Correction. Employee represents the Secretary in all departmental matters in his absence, and handles significant special assignments as delegated. Work involves responsibility for planning and coordinating the property management, contractual services, fiscal, organization, and procurement matters between the chief business management and administrative officials of the Division of Prisons, Adult Probation/Parole, and the Parole Commission. Policy formulation, long range planning, organizational review, and improvement and determination of budgetary needs are prime responsibilities of this position.
Plaintiffs continue to rely on the argument that no class member held a position for which political affiliation is an appropriate requirement. They also rely extensively on Ryon’s discussion of what he actually did while holding that position, that is, primarily financial responsibilities, including preparing a budget.
See
Ryon Deposition, pp. 13-14. Ryon contends that he was not involved in the “policy planning end of things,” and that he was not “specifically charged with insuring that the Governor’s programs were carried out within the divisions, within the Department of Corrections.” Ryon Deposition, pp. 25-26.
Upon consideration of the materials submitted, case law, and common sense, the court concludes that the position of Deputy Secretary of Correction is one for which political affiliation
is
an appropriate requirement and, therefore, Ryon is not entitled to
Branti
protection.
Area Administrators: Robert Barbour, Talmadge Barnett, Raymond Jarvis, David Luther, and Harvey Yow
Class members Barbour, Barnett, Jarvis, Luther and Yow were all area ad
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ministrators for the Division of Prisons. There are six area administrators for the State of North Carolina. Three area administrators serve under the eastern geographic command manager and three serve under the western manager. These managers report to the assistant or deputy director who in turn reports to the director of the Division of Prisons. Thus, area administrators are at the fourth level of authority within the Division of Prisons, and the sixth level of authority within the Department of Correction as a whole. Johnson has submitted job descriptions for these positions and his interpretation of their duties and responsibilities.
The job description for a Correctional Administrator I (area administrator) begins by stating that:
Employees in this class administer and coordinate the overall correctional operations for a large geographic area of the State or for a complex. Employees provide supervision for ten to twelve field units and, in some cases, a backup institution or for a complex composed of several institutions or facilities.
Employees participate in the development of Division policy
and disseminate this to the field units or institutions.... (emphasis added.)
These positions obviously have substantial responsibility and involve not only a wealth of administrative tasks, but also the considerable exercise of independent judgment. While the job description does state that “major changes in organizational structure, programs, or procedures are approved by prison administration” the job description is explicit in stating the role of these positions in policymaking. For example, it states that “[ljong-range planning is made by prison administration
with significant input from employees in this class.”
(emphasis added). The materials submitted by the plaintiffs do not sufficiently rebut the accuracy of this job description. Yow testified during his deposition that the job description accurately describes the duties and responsibilities of an area administrator. He testified that
in his opinion
“the part over policy [sic] development is overemphasized in this job description,” that in his actual personal experience he
did not actually participate
that much
in the development of policy that affected the Department of Correction or the Division of Prisons throughout the state. Generally that policy was developed at the Raleigh level, and,
of course, 1 was given the opportunity to review the policy and make recommendations before most of them were finally disseminated to the field,
(emphasis added).
Yow further testified that he did not, as an area administrator, vote on the adoption of a policy, even though he did have “input and an opportunity to comment on policy.” Yow Deposition, pp. 10-11.
Yow also testified that it was an area administrator’s responsibility to explain new policies to superintendents and other subordinates in the area office, and to see that policies were carried out. Yow Deposition, pp. 11-12.
Barbour’s affidavit states that “[a]rea administrators sometimes have input into these policies, but decisions as to final policies are made in the Secretary’s and the Director’s office.” Barbour Affidavit, p. 2. Barbour also contends that “Departmental policies are set out in a great deal of detail in the Policies and Procedures Manual[, and] there is limited discretion in [the] application of these policies and procedures.” Affidavit, p. 3.
Johnson characterizes area administrators as “chief policymaking positions in the Division of Prisons,” and as a key link between the Secretary of Correction and the Division of Prisons. Plaintiffs, on the other hand, characterize these positions as “field operations personnel who are in no way a chief link between the Raleigh headquarters of the Department of Corrections and the Raleigh headquarters of the Division of Prisons.”
All five area administrators were career employees with between eighteen and twenty-eight years of service with the department. Regrettable as their separation from state employment may be, this is not the appropriate forum for reviewing the judgment, or lack thereof, exercised by a new administration. These positions involve input into policymaking, and these
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class members exercised considerable control over departmental policies in the way that they interpreted and disseminated information with respect to these policies and insured that they were carried out.
The court concludes that these are positions for which political affiliation is an appropriate requirement.
To summarize, the court concludes that as to the positions held by class members Barbour, Barnett, Jarvis, Luther, Ryon, Taylor, and Yow political affiliation was an appropriate requirement and Johnson’s motion for summary judgment against those class members will be allowed. Class member McQuillan is not properly within this class, and the motion for summary judgment as to her will be allowed. As to the positions held by class members Forester, Gabriel, Hawley, Hilliard, Hughes, Ives-ter, Marion, Noland, Sauls, Stamey and Styles, political affiliation was not an appropriate requirement and summary judgment will be entered so holding. An issue of fact remains with regard to the discharge of class members Forester, Gabriel, Hilliard, Hughes, and Ivester.
B.
DEPARTMENT OF HUMAN RESOURCES
Phillip J. Kirk and David T. Flaherty
According to N.C.Gen.Stat. § 143B-137 the duties of the Department of Human Resources are as follows:
... to provide the necessary management, development of policy, and establishment and enforcement of standards for the provision of services in the fields of general and mental health and rehabilitation with the basic goal being to assist all citizens....
Defendant Phillip J. Kirk is the former Secretary of the department. He served from January 1985 to February 1987 at which time defendant David T. Flaherty assumed the position. This is the largest department in North Carolina state government, and there are twenty-one remaining class members who were or are employed there.
Betty R. Albright
Class member Albright was employed as Director of the Juvenile Evaluation Center until she was dismissed in April 1985. Defendants contend that Albright occupied a position for which political affiliation is an appropriate requirement. Kirk has submitted his own affidavit and a job description for the position. The court notes that this job description was prepared when Donald Pagett, also a class member in this action, occupied the position and was approved by him. The defendants have not submitted a job description approved by Albright, and plaintiffs challenge the complete accuracy of the description submitted. They contend that “the job description was ‘inflated’ in over-emphasizing the responsibilities of the position because it had been prepared for the purpose of obtaining and [sic] increase in salary grade for Mr. Pagett.” With this in mind, the court will now consider the materials submitted and the various accounts of the responsibilities of the Director of the Juvenile Evaluation Center.
In her capacity as Director of the Center Albright had traditional management and administrative responsibilities. She also had the additional security and rehabilitation concerns attendant to such an institution. The court has already concluded that these duties and responsibilities, in and of themselves, are not of a character that would make political affiliation an appropriate requirement for the effective performance of the position.
See
Discussion of class members Forester, Ivester, Hawley, Hilliard,
supra.
However,
Albright also served as a member of the Divisional Management Team which “is responsible for
recommending,
reviewing and
implementing
policies and procedures to guide the
entire Division."
Kirk-Albright Affidavit, p. 2. (emphasis added). The court concludes that this added responsibility transformed Albright’s position into one for which political affiliation is an appropriate requirement. Since Albright had input into division-wide policy, the defendants could legitimately question her commitment to the new administra
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tion’s agenda with respect to policies concerning the Division for Youth Services.
William R. Atkinson
Class member Atkinson was employed as Assistant Deputy Director for Institutional Services, Division for Youth Services. Defendants contend that Atkinson occupied a position for which political affiliation is an appropriate requirement. The court has reviewed the job description, Kirk’s affidavit, and Atkinson’s affidavit. The job description explicitly states that the “primary responsibility of this position is providing executive management and leadership to this division of State Government. This position provides management and leadership functions by
making policy
decisions_” (emphasis added.) Additionally, Atkinson has conceded that he was “responsible for
implementing
the Division programs,” and that he provided information and
recommendations
or
advice
to the Division Director and Secretary
on policy matters.
Atkinson Affidavit, pp. 1-2.
Elrod v. Burns
approved “consideration ... [by the public employer as] to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” 427 U.S. at 368 , 96 S.Ct. at 2687 .
Branti
did not abandon this inquiry. 445 U.S. at 511 , 100 S.Ct. at 1291 .
The court concludes that Atkinson, as Assistant Deputy Director for Institutional Services, Division for Youth Services, occupied a position for which political affiliation is an appropriate requirement.
Allison Barham
Class member Barham was employed as a Business Officer III in the Division for Youth Services. Defendants argue that his position is one for which political affiliation is an appropriate requirement. They rely on Kirk’s affidavit, and a job description. The most pertinent provision of the description is that “this position has the overall responsibility for the control, expenditure and accountability for approximately $15 million annually.”
16
Neither the defendants nor the plaintiffs have provided the court with any significant guidance in how such considerable fiscal responsibility should be reviewed under
Branti .
Defendants argue that “[t]he allocation of finite resources, decisions as to which programs to fund at various levels, and decisions as to legislative strategies all involve ‘deci-sionmaking on issues where there is room for political disagreement on goals or their implementation.’ ” (Citation omitted.) This argument might be persuasive
if
it were supported by evidence. It is not.
The job description does provide that the Chief Fiscal Officer “[s]upervise[s] and assists] in the preparation and presentation of the biennium budget ... [and] [p]re-pare[s] budget information and assist[s] in the presentation to [the] General Assem-bly_” A review of the deposition testimony of Barham and other documents submitted by plaintiffs leaves the impression that the chief fiscal officer’s duties are largely technical, and are guided by various state budget manuals and federal and state legislation.
Defendants also contend that “the budgetary process itself is largely comprised of confidential information relating to the current administration’s spending priorities and various confidential proposals of how to satisfy those priorities with limited funds.” This assertion could also be persuasive
if
it were supported by evidence. It is NOT. In fact, the only evidence the court has received on this subject is Bar-ham’s testimony that all the material handled in the budget process was public information. Barham Deposition, p. 71.
It is quite evident that critical facts are still disputed, making summary judgment on this issue inappropriate.
Kirk also contends that Barham was discharged because a “new management style was needed.” According to Kirk his “decision to remove Mr. Barham was based on his weak management skills and [his] belief that the Division of Youth Services needed a management style different from that of Mr. Barham.” The affidavit does not further detail what Kirk meant by “weak management skills.” Kirk-Barham Affidavit, p. 3. In any event, plaintiffs have
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submitted materials which offer a markedly different view. Summary judgment on this ground is, likewise, inappropriate.
Logan Burke
Class member Burke was employed as a Special Assistant in Institutional Services, Division of Youth Services. There is no contention that this position is one for which political affiliation is an appropriate requirement. Kirk does contend, however, that Burke’s position was abolished because Kirk concluded that the position was not needed. Burke was removed
as the result of an administrative reorganization in which his job was abolished. The position had been created for Mr. Burke in Winston-Salem so that he could live with his wife. I determined that the Department could not justify having a specially created branch office in Winston-Salem when it did not have such offices in other cities. Moreover, the services Mr. Burke had been performing were not necessary to the success of the Division.
Kirk-Burke Affidavit, pp. 1-2. Kirk has provided no other evidentiary support for this “administrative reorganization.”
Plaintiffs contend that the position has not really been abolished. They contend that first Burke was fired and
then
the position was “reallocated to Administrative Assistant for Volunteer Services.” That position was then removed from the “exempt” list, and a replacement was hired in October 1985. In July 1986 the position was redesignated as Volunteer Services Director II. Most telling is that the materials documenting these changes list the “employee replaced” as Burke. The court concludes that plaintiffs have shown a genuine issue of material fact regarding the actual reasons for the removal of class member Burke, making summary judgment inappropriate.
Lonnie Michael Cayton
Plaintiff Cayton was employed as Director of the C.A. Dillon School, a residential treatment and rehabilitation center for juvenile delinquents. Defendants argue that Cayton occupied a position for which political affiliation is an appropriate requirement. First and foremost, Cayton managed the Dillon facility. Additionally, however, he “serve[d] as a member of the divisional management team and [was] responsible for
recommending, reviewing, and implementing policies and procedures to guide the entire division.”
Included in plaintiffs’ supporting materials is a letter to Cayton from class member Atkinson. That letter states “I would like to express to you my appreciation for your participation on the Policy Review Committee for the Division of Youth Services. You are to be commended for the
excellent policy
recommendations_”
Plaintiffs urge the court to consider the fact that Cayton operated within the constraints of state and federal law, and other established procedures and guidelines. That may be true, but it does not address Cayton’s additional role in policy formulation for the Division of Youth Services which may guide or complement state and federal law.
The court is most persuaded by the evidence which admits Cayton’s policy implementing role, and his opportunity to comment, make recommendations, or otherwise have input into policy formulation division-wide. The court does not discount the overriding importance of this position as one which demands
professional
skills; nevertheless, Cayton’s admitted input into policymaking beyond his institution is determinative.
The court concludes that plaintiff Cayton occupied a position for which political affiliation is an appropriate requirement.
Gayle Christian
Class member Christian was employed as an Administrative Secretary V in the Division of Aging but was “reallocated to Secretary IV” in April 1986. She resigned in December 1986. Kirk argues that the position of Administrative Secretary V is one for which political affiliation is an appropriate requirement.
Defendants have submitted an affidavit of Ms. Christian’s immediate supervisor, and a job description whose accuracy was attested to by Ms. Christian. According to
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both, Ms. Christian’s position as an Administrative Secretary V involved handling confidential communications. Stoops’ Affidavit, p. 2; job description II.A., III.F. The job description specifically provides that Christian:
Preform [sic] clerical duties[,] ... [maintain appointment schedules for the Assistant Secretary and Deputy Director,
handle confidential communications with Administration,
... attend to routine administrative office responsibilities
II.A. (emphasis added). The description further provides:
Describe the part(s) of the work which requires care to safeguard other persons. [Response] Other than confidentiality in specific matters, ...
Plaintiffs’ response is unpersuasive. Plaintiffs argue that since Governor Martin has testified that even the position of confidential secretary to the Governor does not require a certain political affiliation, then this position, likewise, does not require political affiliation. The court has already held that Governor Martin’s testimony and interrogatory answers are not binding or dispositive. Moreover, the court is persuaded that by virtue of Christian’s access to confidential information, and involvement in confidential communications, she occupied a position for which political affiliation is an appropriate requirement.
Otis M. Congleton
Class member Congleton was employed as the Deputy Director of the Division of Aging. Defendants argue that this position is one for which political affiliation is an appropriate requirement. They argue that Congleton had a substantial policy-making role in a politically charged area; that he prepared materials for use in developing legislation; and, acted as a spokesperson for the division. The job description provides, in part, that Congleton:
[P]erform[ed] the functions of the Assistant Secretary during his absence ... ha[d] primary responsibility for program direction, [and] policymaking....
[C]onduct[ed] sessions with the three Section Chiefs to
gain input into proposed policies
....
[P]repare[d] specific materials for use in developing legislation,
either for the Department of Human Resources or for the Legislative Study Commission on Aging.
(emphasis added.) Congleton has further admitted that he “was registered to work with Legislators on Aging issues.... In essence [that he] was involved in almost every aspect of the operations of the Divi-ion [sic] of Aging.” Interrogatory response No. 11.
Plaintiffs argue that “the policies, procedures and programs for this division are established by federal and state statutes, with further policy decisions being made by the Secretary of the Department of Human Resources, upon the advice and recommendation of the Council on Aging.” Plaintiffs, however, concede that “[individuals employed in the division of Aging are responsible for
implementing
and administering these policies and procedures.” Furthermore, Congleton’s affidavit states that his “role in the Division was to ensure that the policies and procedures which had been established were carried out and complied with. [His] role in policymaking within the Division was limited to
making recommendations
and
advising the Secretary,
the Council and the Director.” Congleton Affidavit, pp. 1-2 (emphasis added). Congle-ton’s role in preparing materials for use in legislation is also a significant consideration in determining the appropriateness of political loyalty and affiliation.
Admittedly, much of the policy that governed and directed the Division of Aging is established by federal and state statute, and most additional policymaking decisions are made outside the Division of Aging. These facts do not, however, end the
Bran-ti
inquiry. Congleton has conceded that he had input into some policy decisions through recommendations and advice to the Secretary. By his own admission he was also a lead actor, that is, he had a primary role, in the implementation of these policies.
See Elrod v. Burns,
427 U.S. at 368 , 96 S.Ct. at 2687 .
The court is persuaded that Congleton occupied a position for which political affil
*1398
iation is an appropriate requirement for effective performance.
Ron Davis
Class member Davis was employed as Chief of the Program Services Section, Division of Aging. Defendants contend that Davis did not occupy a position entitled to
Branti
protection and that Davis had “meaningful input into government decisionmaking” since he served as “the principal adviser to the Deputy Director and Assistant Secretary of Aging on the Older Americans Act,” 42 U.S.C. §§ 3001
et seq.,
and other programs developed by the Administration of Aging. Plaintiffs argue that Davis’ job was strictly guided by federal and state statutes and policies contained therein or established elsewhere.
Defendants make a good point regarding the significance of such statutory guidance; that is, “general statutory guidelines and ‘policies’ do not by any means accomplish all the policymaking that occurs in the Department of Human Resources.” A review of the Older Americans Act reveals a significant statutory structure. It also reveals a scheme that allows states ample discretion in the manner of implementation. It also encourages complementary state policy formulation and implementation. The job description provides that the occupant of this office would “[p]articipate[ ] in the development of program management policy for Title III and Title V of the Older Americans Act of 1965 as Amended.” It further provides that “[wjhen major issues arise around [sic] interpretations and policy decisions, these are discussed with or referred to the Deputy Director and/or Assistant Secretary.”
These provisions could be interpreted quite broadly; however, the court is persuaded that Davis’ responsibilities were essentially administrative, technical and professional. His extensive involvement in the implementation of the Older Americans Act involved reviewing plans submitted by local agencies for funding to ensure their compliance with the Act and other
established
statutory and regulatory provisions. A review of the job descriptions submitted by plaintiffs and defendants further leads the court to the conclusion that Davis' role as a “principal adviser” was that of a technical adviser, not a policy adviser.
Davis did not occupy a position for which political affiliation is an appropriate requirement.
Alternatively, Kirk contends that Davis was discharged for poor job performance. In response, plaintiffs have submitted positive performance evaluations. Additionally, Davis alleges that he was specifically informed that the discharge had nothing to do with the quality of his work.
See
Interrogatory Response No. 2. Accordingly, summary judgment on this ground is not appropriate.
Charles Cook
Class member Cook was Chief of the Adult Health Section of the Division of Health Services until he was discharged by Kirk on 1 March 1985 allegedly for poor job performance. Initially, however, Kirk contends that Cook’s position was one not entitled to
Branti
protection.
Cook was hired as the Chief of the Health Assurance Section but the section name was later changed, upon Cook’s recommendation, to Adult Health Services. The job description, in certain respects, seems to describe a position that might well be policymaking because of the following duties:
1. Directs a staff in the development and implementation of programs involving Medical Care, Disease Detection (etc.).
2. Serves as a member of CMT, concerned with Division wide policy development and program delivery.
3. Insures integration, through Branch Heads of Programs and harmony of policies procedures and practices within the section.
8. Assist[s] Deputy Director with long-range policy planning in areas affecting section programs.
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10. Has final Section authority in the management of section resources — i.e. Budget, Personnel, and equipment....
Exhibit No. 6 to Cook Deposition.
Moreover, Cook testified that one of the objectives for the position was to provide “guidance in developing policies and procedures for the program.” Deposition, p. 32. It should also be noted that throughout his deposition Cook testified that he prepared “position papers,” and that he was responsible for a budget, initially, of $5 to $7 million, which grew during his tenure to $20 million. Deposition, p. 35. He supervised 31 to 41 people.
Nevertheless, the court is convinced that Cook’s policy involvement was limited to making recommendations, with some limited discretion into implementation. Cook was a third-tier employee who reported to the State Health Director who, in turn, reported to Kirk. Although he frequently testified about writing many “position papers,” these were not documents defining policy, but rather recommendations which were “trying to convince or persuade” superiors as to actions that should be followed. These recommendations went from Cook to the State Health Director who decided whether to recommend their approval to Kirk. Cook would not approach Kirk without first going to the State Health Director. The substantial budget increases went not to increase the size of the section, or for administrative costs, but, instead, to programs that were being administered. Cook could not hire subordinates above a certain pay grade without the concurrence of the Secretary. In order to implement programs he had to persuade the “central management team, and the director, and right up to the secretary.” Deposition, p. 46. Finally, Cook was told that he was not “a final policy maker.” Deposition, p. 104.
Although it is a close call, the court concludes that Cook’s position is not one for which political affiliation is an appropriate requirement.
With regard to Kirk’s contention that Cook was fired for cause there are sufficient disputed facts to make summary disposition inappropriate.
Rachel T. Fesmire
Class member Fesmire was employed as a Social Services Program Administrator III. In this capacity she served as the head of the Office of Day Care Services. Kirk contends that Fesmire’s position was abolished by the General Assembly and, therefore, she has no standing to pursue a claim in this action. According to Kirk, in 1985 the General Assembly consolidated the Department of Administration’s Office of Day Care Licensing and the Department of Human Resources Office of Day Care Services into one section within the Department of Human Resources. Kirk contends that “[i]t thus became necessary for [him] to choose a new section Chief to administer the newly combined ... program.” He asserts that he decided a newly merged office needed a new head without prior ties to either predecessor office. Hence, Kirk argues that Fesmire was not discharged,
17
but rather that her position was abolished by legislative act.
Plaintiffs have not responded to this contention. The court agrees with defendants that Fesmire was not discharged. If the complete abolition of a position by legislative act protects defendants, and the court has held that it does
(see
discussion of McQuillan, at pp. 32-33), then the consolidation of two or more positions into one job does also. Otherwise, defendants would be subject to suit by at least one jobholder for the abolition of a position by a body over which defendants had no control. The court holds that the
consolidation
of positions is, in effect, the
abolition
of several positions and the
creation
of a new one. Accordingly, Fesmire is not properly included in this class action.
Alternatively, the court will consider defendants’ contention that Fesmire did
*1400
not occupy a position entitled to
Branti
protection. They contend that her position “involved primary policymaking and implementation for North Carolina’s Child Day Care program....”
The job description provides that the director “works independently to establish and implement program goals, policies, rules, standards, and procedures for each county department of social services.... ” It further provides that “[t]he director is responsible for promoting the [state day care] program with various federal, state, and local groups and agencies
including legislative committees,
the
legislators,
the state day care advisory council- Responsibilities include discussing important or sensitive issues with the Deputy Secretary and other members of Departmental Management.” (emphasis added.)
Plaintiffs’ principal argument is that Fes-mire acted in accordance with applicable state and federal statutes, and with policies and procedures established by the Social Services Commission, under N.C.Gen.Stat. § 143B-153. The only evidence submitted in support of this is Fesmire’s interrogatory answer, which is not entirely consistent with her job description. It states that she “did not have authority to promogate [sic] rules, regulations or allocate dollars without specific approval by the State Social Services Commission.” Interrogatory Response No. 11. Fesmire has herself indirectly admitted that she had input into policy changes when she stated that “any procedures or criteria recommended by [her] office had to be approved by the Secretary prior to implementation.”
Id.
Furthermore, plaintiffs have completely failed to respond to the sweeping provisions in the job description, which was signed by Fes-mire attesting to its accuracy.
The court is persuaded that Fesmire occupied a position for which political affiliation is an appropriate requirement for effective performance.
George Flemming
Class member Flemming was employed as Assistant Director of Disability Determinations, Division of Social Services. Defendants argue that Flemming’s position is not protected by
Branti .
They argue that Flemming was involved in the “formulation of goals and priorities based upon the objectives of the Federal Social Security program.”
Upon review of the job description submitted, the court concludes that Flemming did not occupy a position for which political affiliation is an appropriate requirement. The policies for the administration of social security benefits are well established. Flemming’s role in its administration was as an administrator. He neither made substantive policy nor did he have any meaningful input into its formulation.
Kirk also contends that Flemming was removed because of poor job performance. He has provided no evidentiary support for this allegation beyond his own affidavit, and plaintiffs have submitted sufficient evidence to contradict this assessment of Flemming’s performance. Accordingly, summary judgment is not appropriate on this ground.
William Gamble
Class member Gamble was employed as the Business Manager at Broughton Hospital. Defendants argue that Gamble’s position is not entitled to
Branti
protection. They emphasize the fiscal and personnel responsibilities of the business manager of a large hospital. Their argument is not persuasive.
Upon review of the job description, and common sense, the court concludes that Gamble’s position required the exercise of professional and technical skills. It is not a position for which political affiliation is an appropriate requirement.
Kirk also contends that Gamble was removed for cause. He alleges that Gamble “harbored a lingering resentment” from a personnel action taken during the Hol-shouser administration which Kirk believed prevented Gamble from effectively supporting the new administration’s programs and policies. Kirk further alleges that based on previous contact with Gamble he did not have confidence in Gamble's interpersonal skills. Plaintiffs deny these allegations and the court is persuaded that there is a genuine issue of fact regarding
*1401
the reason for Gamble’s discharge; thus, summary judgment is not appropriate.
Carl Hampton
Class member Hampton was employed as Director of Samarkand Youth Services facility. Kirk contends that this position is one for which political affiliation is an appropriate requirement. The court has already concluded that the managerial and administrative responsibilities of a director of this type of institution are not of such a character that would make political affiliation an appropriate requirement for effective performance.
See
Discussion of class members Forester, Ivester, Hawley,
et al., supra.
No evidence has been submitted which would lead the court to conclude differently here. Unlike plaintiff Cayton, Hampton had no input into policy.
Hampton was suspended in June 1985 and later transferred to another position within the Division for Youth Services. Kirk argues that this transfer was for cause. Plaintiffs have submitted evidence which contradicts Kirk’s allegations and sufficiently raises issues of fact which preclude summary judgment. A
Delong
inquiry also remains to be resolved.
Steven L. Hicks
Class member Hicks was employed as Deputy Director for the Alcohol and Drug Abuse Services Section. Defendants argue that Hicks’ position falls within the
Branti
exception. According to the defendants the Deputy Director “plans, directs, and coordinates all statewide substance abuse programs.” Defendants further allege that the Deputy Director serves as the section’s “liaison with the North Carolina General Assembly on matters concerning substance abuse and thus is responsible for advocating administration goals.... ” This allegation is supported by the job description which provides,
inter alia,
that the occupant of this position,
[wjorks with federal, state, county, city, and area government bodies ... [djevel-op[s] statewide plans for alcohol and drug abuse ... [and] [a]s a member of the State Management Team, participate^] in the development of the total mental health program for North Carolina. This includes planning, program development ... [and involvement] in the legislative process providing information and advocating as professional expert [sic] for division and department programs including statutes, funding, etc.
Plaintiffs describe Hicks’ role as a primarily “consultative and technical” one. This appears to be true. They fail, however, to address his role in the legislative process or his role as a department advocate. These factors legitimately touch on concerns of political loyalty and affiliation. Accordingly, the court concludes that Hicks occupied a position for which political affiliation is an appropriate requirement for effective performance.
Barbara B. Kramer
Class member Kramer was employed as the Director of the State Health Planning and Development Agency. Kirk argues that Kramer occupied a position unprotected by
Branti .
As director, Kramer had overall responsibility for the agency, including routine supervisory and budgetary duties. According to the job description Kramer’s primary work was
administrative
“in organizing, directing, and coordinating the planning and development of a State Health Plan ... and in the conduct of project review of proposed uses of federal funds. These activities are conducted in accordance with [The National Health Planning and Resources Development Act of 1974].”
This job description does not reveal a position which had input into substantive policymaking. The responsibilities appear to be primarily administrative, technical, and professional. Accordingly, the court concludes that Kramer did not occupy a position for which political affiliation is an appropriate requirement.
Susanne G. Moulton
Class member Moulton was employed as Chief of the Certificate of Need Section in the Department of Human Resources. Defendants contend that this position is one for which political affiliation is
*1402
an appropriate requirement. The first line of the job description for the position states that “[t]his is a management level, professional position_” The rest of the description is consistent with this statement. Moulton’s duties are well-defined and do not extend beyond the already established policies of Certificate of Need and Appropriateness Review Programs.
The court is persuaded that Moulton occupied a position for which political affiliation is not an appropriate requirement.
Kirk also contends that Moulton was discharged for cause. Plaintiffs have presented sufficient evidence to raise a genuine issue of fact as to the reason for Moulton’s discharge. Accordingly, summary judgment is not appropriate.
Donald L. Pagett
Class member Pagett was employed as the Director of the Black Mountain Center, Division of Mental Health, Mental Retardation and Substance Abuse Services. Defendants contend that this position is not entitled to
Branti
protection. The job description, submitted by plaintiffs, reveals a position which requires extensive administrative and professional skills. The court is persuaded that this position does not involve substantive policymaking or input beyond that which guides the operation of the institution itself. Accordingly, Pagett did not occupy a position for which political affiliation is an appropriate requirement.
Also, Kirk alleges that Pagett was discharged for cause. Plaintiffs have provided sufficient evidence to raise a genuine issue of fact as to the actual reason for Pagett’s discharge and to challenge the accuracy of Kirk’s allegations such that summary judgment is not appropriate.
Thomas Corley, Ernest B. Hunt, Ronald M. Thompson, Charles Williams
Class member Corley was employed as a Personnel Officer II at Broughton Hospital; class member Hunt was employed as the Personnel Manager of the Division of Youth Services; class member Thompson for the Western North Carolina School for the Deaf; and, class member Williams for the O’Berry Center of the Division of Mental Health and Mental Retardation and Substance Abuse Services.
With regard to Corley, the affidavit of Kirk states that the
Personnel Officer II at Broughton Hospital is in charge of the administration of all personnel policy and actions for that institution, which employs over 1,600 persons. Considerable independent decision-making responsibilities are vested in this position.... [He] shares responsibility for such matters as long-range planning, articulating the goals of the hospital, recommending and implementing policy and organizational changes, assessing the classification impact of such changes, and determining budgetary requirements and managing operational budgets. He is involved in recruitment for difficult-to-fill positions by participating on specially appointed search committees.
The job description, signed by Corley, supports Kirk’s affidavit.
With regard to Hunt, the affidavit of Alfred Benjamin Boyles, former Director of Personnel for the department, states:
The Personnel Manager for the Division of Youth Services is responsible for providing a full range of comprehensive personnel services to more than 800 positions located in five training schools, one regional detention center, eight regional community based consultants and a central office staff. His responsibilities include ... salary and wage administration, position classification and management ... policy interpretation ... [and] recommending and implementing policies and procedures that affect all employees in the Division....
The job description, signed by Hunt, verifies this and states that “I have authority ... at times to change policy_”
As Personnel Manager of the Western North Carolina School for the Deaf Thompson had similar duties and responsibilities for approximately 1,300 employees. The job description states that “[studying new and existing positions based upon action request and needs ... [including] conducting desk audits, gathering, compiling and
*1403
evaluating positions and making recommendations .occupies about 10% of the time of the occupant of the position.
Williams had similar duties for some 1,200 employees at the O’Berry Center.
The court has held that the position of Personnel Director for the Department of Revenue is one for which political affiliation is an appropriate requirement.
See
discussion of Grissom, pp. 118-19. What was said there applies with equal force here. These positions are not protected by
Branti .
To summarize, the court concludes that as to the positions held by class members Albright, Atkinson, Christian, Congleton, Corley, Fesmire, Hicks, Hunt, Thompson and Williams, and plaintiff Cayton, political affiliation was an appropriate requirement and the motion by Kirk and Flaherty for summary judgment against them will be allowed. As to the positions held by class members Cook, Davis, Flemming, Gamble, Hampton, Kramer, Moulton and Pagett, political affiliation was not an appropriate requirement and summary judgment will be entered to that effect. Remaining for factual determination by a jury are the motivational issues for the actions against class members Barham, Cook, Davis, Flem-ming, Gamble, Hampton, Moulton and Pa-gett.
C.
DEPARTMENT OF CRIME CONTROL AND PUBLIC SAFETY
Defendant Joseph Dean
Dean is Secretary of the Department of Crime Control and Public Safety. Created by the General Assembly of North Carolina in 1977 to provide “law enforcement and emergency services to protect the public against crime and against natural and man-made disasters, ... [and] to insure the preparation, coordination and currency of military and civil preparedness plans and the effective conduct of emergency operations,” N.C.Gen.Stat. § 143B-474, the Department consists of nine divisions.
18
The Department is headed by the secretary who has those powers and duties conferred on him by the North Carolina Constitution and law of the state and delegated to him by the Governor, including the power to hire and fire Department employees. There are eleven class members remaining who held positions in this department.
Carl Aeree
Class member Aeree served as the Military Executive Officer for the North Carolina National Guard and held the rank of colonel until he was discharged. According to the job description submitted by Dean,
19
the Military Executive Officer
[s]erves as the fulltime Deputy Director,
20
Division of the National Guard with a broad delegation of authority in exercising the state required functions of the Office of Adjutant General.... Is the principal advisor to the Adjutant General regarding state operations of the National Guard.... Assists the Chief of staff in exercising the functions of his office on a day-to-day basis within the
established policies
of the Adjutant General together with State directives.... Represents the Adjutant General in coordinating legislative policies and programs ... at both State and National levels_
As such, Dean argues that this position is “directly involved in formulating and implementing policies for the North Carolina National Guard” and is not protected by
Branti .
Plaintiffs disagree. They contend that Aeree was an officer in a military organization; that he obeyed his commanding officer; that all of his decisions were with the approval of the Adjutant General; that he
*1404
carried out policies established by state and federal legislation; and that all of his duties were controlled by well-defined and established policies and directives.
See
Aeree Deposition, p. 33.
This position is not easily analyzed. At first glance, the position seems to involve routine administrative duties, albeit in a military context. It is not at all clear, in light of the extensive federal legislation governing the National Guard, just what “legislative policies” the military executive officer assisted the Adjutant General with. Because the substantive impact of class member Acree’s role is less than clear, the court is not persuaded that he occupied a position for which political affiliation is an appropriate requirement. Nor can the court say that the position
is
entitled to
Branti
protection. Thus, summary judgment is not appropriate.
Michael Hooks
Class member Hooks was employed as an Administrative Officer I to the Wing Commander for the Civil Air Patrol (CAP).
Dean contends that Hooks has no standing to pursue his claim inasmuch as he is a registered Republican and was a contributor to Governor Martin’s 1984 campaign. Hooks was discharged in October 1986. In his deposition Hooks testified that he was a registered Republican until he changed his registration to Democrat during the Hunt administration; that he changed back to Republican after the 1984 election; that he made a cash contribution to the Martin campaign; that he had never voted for a Democrat in his life; and, that his parents, who are Republicans, interceded for him with the Martin administration to help him obtain another job in state government. Hooks contends that he was fired to make room for someone who was more acceptable to the Martin administration; that he was not viewed by the Martin people as one of their own because he had been a Democrat during the Hunt years; and, that he was "not viewed as a strong political supporter of the Republican party in general and Governor Martin in particular.” Plaintiffs’ Memorandum of Law in Opposition to Dean’s Motion for Summary Judgment, p. 9. Hooks, therefore, contends that he lost his job “because of his political affiliation (or non-affiliation).”
Id.,
p. 10.
Dean contends that Hooks is in the same position as a white person claiming discrimination by white realtors who were found not to have standing.
Havens Realty Corp. v. Coleman,
455 U.S. 363 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982). The analogy does not withstand close scrutiny. In
Havens
the Supreme Court held that a white realtor did not have standing under the Fair Housing Act inasmuch as his statutory right to accurate information was met when he was informed, upon request, that apartments were available for him. The principles set forth in
Elrod
and
Bran-ti
are premised on the constitutionally protected interest of freedom of expression. Thus, a person who, even though a member of the same political party, is fired because he was formerly a member of another political party, or supported the opponent in the election, or failed to obtain the endorsement of a necessary person, stands in exactly the same position as one who is fired because he
presently
belongs to another political party. This was recognized by the Fourth Circuit in
Jones v. Dodson
where it was said: “We recognize that the principle [of
Elrod
and
Branti
] might be thought to run as well to coerced political loyalty to individual employers (even of the same political party).” 727 F.2d at 1334, n. 6 (citations omitted);
see also DeLaCruz v. Pruitt,
590 F.Supp. 1296, 1303 (N.D.Ind. 1984) (“It is of no moment that the discharged employee and the discharger are members of the same political party.”). Thus, summary judgment on this ground is inappropriate.
In March 1988, following an administrative hearing, Hooks’ position was found to be improperly classified as exempt. Dean, nevertheless, argues that because Hooks was “the person solely responsible for the State’s relationship with the volunteer CAP and the United States Air Force” he fell within the narrow
Bran-ti
exception. The court is not persuaded.
Plaintiffs point out that the CAP is a private corporation set up by the federal
*1405
government. Title 36, United States Code, § 201 , which serves as a voluntary civil auxiliary to the United States Air Force. Title 10, United States Code, § 9441 . Because of assistance this corporation provides to the State of North Carolina, the state provides some funding and two employees to assist the CAP. Hooks, in addition to acting as an administrative officer and adviser to the Wing Command, served as an “information link between the Department of Crime Control and Public Safety and the CAP.” There is no indication in the material submitted to conclude he was anything more.
Hooks did not occupy a position for which political affiliation is an appropriate requirement.
L.D. Hyde; Collin McKinne
Class member Hyde served as Special Assistant for Programs under a former secretary of this Department, and class member McKinne served as Emergency Communications and Special Projects Coordinator, also under a former secretary. Both of these class members were dismissed in January 1985. Their positions were
subsequently
reallocated up to “Assistant Secretary positions” in February 1985. Dean argues that this higher level position, with proposed job description, is the appropriate focus for the
Branti
inquiry. Dean is mistaken. The relevant inquiry attaches to the position held by the class member at the time of the adverse action, here — discharge. Accordingly, the court will only consider the job descriptions provided which relate to the special projects coordinator position and the special assistant for programs position.
No job description has been submitted for Hyde’s position as special assistant for programs. Dean has not submitted any other materials relative to
this
position. Plaintiffs have submitted the affidavit of Hyde; however, the court concludes that it has insufficient information to perform an adequate
Branti
analysis. Accordingly, summary judgment is not appropriate.
With respect to McKinne, the job description provides,
inter alia,
that “[t]he primary purpose of [this] job is to assist the department secretary on a variety of matters_” The coordinator reports directly to the secretary. His work originates in special assignments by the secretary. The coordinator also initiates actions and performs special studies. The job description also provides that the coordinator has “[f]ull responsibility for bringing regulations into correct form and accurate substance then taking all legal steps to effectuate them, including public notices, conducting public hearings and filing for official adoption.” McKinne has also stated that in his capacity as a staff member of the Governor’s Advisory Commission on Military Affairs, he
served as liaison between State government and the active Military presence in North Carolina.... [He] was the one point of contact to which the active military could turn to get answers and initiate action in State Government.... [W]e were able to enact legislation favorable to the active military and to retirees living here.
McKinne Interrogatory Response No. 11.
In his job description, McKinne states that his “work [was] done with minimum supervision or review and maximum personal initiative. It involve[d] personal contact with numerous persons at all levels of government....”
The court notes that this position required the occupant to work directly and closely with the secretary. McKinne has stated that he got along with all the secretaries except one. This observation is really quite beside the point. A review of the nature of his duties and close working relationship with the secretary of the Department reveals one which may demand substantial personal loyalty. As coordinator McKinne worked on special assignments directly for the secretary which may have touched on partisan concerns.
The court concludes that class member McKinne occupied a position for which political affiliation is an appropriate requirement.
David Matthews
Class member Matthews served as Commanding Officer of the North Carolina
*1406
State Highway Patrol (SHP), the police organization charged with the duty of enforcing the traffic laws of the state. He was appointed by, and served at the pleasure of, the Governor. N.C.Gen.Stat. § 20-185. Matthews was responsible for “all planning, organizing, staffing, controlling, coordinating, reporting and budgeting for the Patrol” and its 1,450 employees. In addition to the obvious management implications of this position, its occupant met “with fiscal people, legislative subcommittees, etc., to ensure ample funds [were] available within the operational budget.” Job Description II C.l.
Plaintiffs contend that one whose duty it is to impartially enforce the law does not occupy a partisan position. They further contend that Dean, himself, testified that the Governor wanted to “take politics out of” the Patrol and that he (Dean) had sought to carry out that mandate. This, of course, does not estop Dean from contending, in the context of this lawsuit, that the position involved is one not entitled to
Branti
protection. As the court has previously noted, it is fashionable, and obviously deemed desirable by candidates, to berate former administrations for basing personnel decisions on “politics” and vowing to stop the practice. Plaintiffs also contend that “[i]t is difficult to see how it could matter whether the commander was a Republican or Democrat or whether he supported Martin or Edmisten.” Again, plaintiffs attempt to over-simplify the inquiry. In choosing someone for a position which does not have
Branti
protection, the executive may properly consider many criteria to assure himself that he has the loyalty, confidentiality and commitment to which he is entitled.
The SHP is a professional organization charged strictly with law enforcement. However, the manner in which the law is enforced and the amount of the budget devoted to it are matters of legitimate concern to a governor. The position of commander is not entitled to
Branti
protection, and Dean’s motion for summary judgment as to Matthews will be allowed.
Charles H. Long, J.B. Stewart
Class members Long and Stewart were employed as Troop Commanders in the Highway Patrol. The primary responsibility of this position was to assist in providing “for effective and impartial enforcement of North Carolina motor vehicle laws.” Dean argues that as members of law enforcement agencies these class members “are subject to greater First Amendment restrictions than most other citizens.” He relies chiefly on
Joyner v. Lancaster,
815 F.2d 20 (4th Cir.),
cert. denied,
484 U.S. 830 , 108 S.Ct. 102 , 98 L.Ed.2d 62 (1987). This reliance is misplaced.
Joyner
involved a
Pickering-Connick
analysis, which is decidedly different from the
Bran-ti
inquiry demanded here.
Plaintiffs contend that these positions are analogous to deputies sheriff found by the Fourth Circuit to be entitled to
Branti
protection in
Jones v. Dodson,
727 F.2d at 1338 . The court disagrees. A deputy sheriff in the normal county law enforcement organization is more akin to a trooper in the SHP. A troop commander, on the other hand, is in command of, and has control over, some 182 employees, including 2 lieutenants, 32 sergeants and 114 troopers. Although, as plaintiffs contend, his duties are primarily law enforcement related, he does have a broad range of duties including “[m]aintain[ing] good public relations,” conducting “investigations] of improper conduct on the part of members or of complaints concerning traffic safety or law enforcement activities” and the “[d]irect[ion] and supervision of] the deployment and performance of members during civil disturbances....” Job Description 2-16(F) & (K).
The image created by the Patrol can reflect favorably or unfavorably on the administration. The evenhandedness with which the laws are administered, the personal conduct by SHP employees, both on and off duty, and, especially, the conduct of SHP personnel when being used to quell a civil disturbance are all matters of direct concern to the Governor. He is entitled to someone of his choice directing those who carry out such responsibilities. Troop com
*1407
mander is a position for which political affiliation is an appropriate requirement. Dean’s motion for summary judgment as to Long and Stewart will be allowed.
Emergency Management Division: Ruth A. Partin, Donald Rose
Partin and Rose were employed as Area Coordinators for the Emergency Management Division until they were discharged in March 1985. In May 1985 these positions were no longer classified as exempt.
The court has reviewed the job description submitted and is persuaded that these positions demanded substantial administrative and professional skills, as well as technical skills. The position has substantial discretion and responsibility, but is also clearly guided by
federal
and state legislation.
See
Title 42, United States Code, §§ 3232 , 5141, 5143, 11,001
et seq.;
50 U.S. C.App. §§ 2281, 2286, 2288, 2289; 44 C.F.R. §§ 302.1
et seq.
The core responsibility of this position is to assist the counties within that coordinator’s designated territory with developing plans to deal with emergencies and disasters; to act as an adviser in emergencies and disasters; to insure compliance with state and federal regulations; and to provide training and education to various local officials, emergency services personnel, and the general public.
See
Partin Affidavit; Rose Interrogatory Response No. 11; and Job Descriptions.
The court is persuaded that political affiliation is not an appropriate requirement for this position making summary judgment for plaintiffs appropriate.
J.W. Trivette
Class member Trivette served as Special Assistant for Local Law Enforcement. The job description provides that ninety percent of Trivette’s time was spent on the Crime Watch Program. As such, he was “involve[d] [in] responding to citizen’s and law enforcement’s requests and assisting them on a personal level in implementing Crime Prevention and or Community Watch Programs.” Ten percent of his time was spent investigating “complaints from citizens about local law enforcement and reporting findings to the Secretary of Crime Control, [the] complaining party and [the] Governor’s Office.” Dean argues that because Trivette was “responsible for conducting studies, preparing proposals and advising the Department, the public and other agencies about Crime Prevention” he occupied a position that is not protected by
Branti .
The court is not so persuaded.
The subject matter of Trivette’s position — Crime Prevention and Law Enforcement — is obviously sensitive, important and of partisan concern. However, plaintiffs convincingly argue that this position required specialized knowledge regarding crime prevention and technical assistance to law enforcement. Trivette was under the direct and close supervision of the Division Director and the material submitted suggests that he did not have meaningful input into policymaking and that on matters of policy he was subject to directions from higher levels in the Department. His role was largely as an informational liaison to both state government and North Carolina citizens.
The position occupied by Trivette is not one for which political affiliation is an appropriate requirement.
Dean also contends that Trivette voluntarily retired. Trivette’s position was exempt from protection by the State Personnel Act at the time Dean became secretary of the Department. Effective 1 May 1985, the position was removed from exempt status and Trivette was so notified by a letter from Dean dated 15 May 1985 which explained the effect of the reclassification and concluded “[w]ith best wishes and appreciation for your continued service to the State.” In a brief memorandum dated 24 June 1985 Trivette announced his retirement, effective 1 July 1985, noting that on 30 June he “will have 30 years of service.” Bruce Marshburn, who was Director of the Crime Prevention Division at that time, has testified, by affidavit, that Trivette was not asked or forced to retire.
Plaintiffs contend that Trivette was forced to retire, relying on Trivette’s answer to interrogatories in which he states that he was told by Bruce Marshburn that “he was no longer needed,” that his duties
*1408
and responsibilities were reduced to a “make-work” job, and that he was allowed to stay on the job for a couple of months until he was eligible for retirement. These assertions create a genuine issue of fact making summary judgment inappropriate. Even though plaintiffs have failed to respond to Dean’s argument that, at the time of his retirement, Trivette was in a position subject to the protection of the State Personnel Act, under which he could only be discharged for cause, the fact remains that he still falls under the class definition as he occupied an exempt position between 6 November 1984 and 7 January 1985 and contends that he was subjected to adverse personnel action because of his political affiliation or activities. Dean is not entitled to summary judgment on the Trivette claim.
Maurice R. Edmonston
Class member Edmonston was employed as the Director of Public Affairs for the Department. Dean argues that this position is explicitly not protected by
Branti.
445 U.S. at 518 , 100 S.Ct. at 1294 . The job description provides,
inter alia,
that the primary purpose of this job is to “[p]lan and supervise a public information and relations program to keep citizens abreast of services provided by the eight divisions of the department and [to] ensure good communications among the departments.” In the course of this job, the director prepared news releases which Edmonston has stated that he researched, wrote, edited and produced. He further stated in his job description that he prepared speeches “[a]t the direction of the Secretary, [he] researched], wr[o]te, and edit[ed] numerous speeches concerning the department Programs for delivery by the Secretary. [He] also [did] the same for the Governor’s Office upon request.” Finally, Edmonston has acknowledged that his position required “constant contact with the public, news organizations, legislators ... [and] with policymaking employees in the department divisions to work with them on their needs for public information programs.”
The court is persuaded that this is a position which demands close working relationships with policymakers, and involves subject matter that is or may be sensitive and touches on partisan concerns. Plaintiffs’ argument is basically that Edmon-ston’s news releases and proposed speech drafts were objective, informational pieces without political content or concern. The court is not persuaded by this characterization. The drafting of a news release or speech necessarily includes a subjective element as, for example, which facts or incidents will be highlighted, or how they will be portrayed. Presumably, a professional in this position would responsibly report things as they happen. However, the court is persuaded that the occupant’s political affiliation could interfere in the effective discharge of his duties such that the employer could legitimately be concerned and discharge him.
The court concludes that Edmonston occupied a position for which political affiliation is an appropriate requirement.
To summarize, the court concludes that as to the positions held by class members Edmonston, Long, Matthews, McKinne and Stewart political affiliation was an appropriate requirement, and Dean’s motion for summary judgment against those class members will be allowed. As to the positions held by class members Hooks, Partin, Rose and Trivette political affiliation was not an appropriate requirement and summary judgment will be entered to that effect. The court is unable to make a summary decision with regard to the positions held by class members Aeree and Hyde. There also remains for determination the voluntariness of Trivette’s retirement.
D.
DEPARTMENT OF CULTURAL RESOURCES
Patrie G. Dorsey
The duties of the Department of Cultural Resources are set forth in N.C.Gen.Stat. § 143B-50, which provides, in part, that:
It shall be the duty of the Department to provide the necessary management, development of policy and establishment and enforcement of standards for the furtherance of resources, services and
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programs involving the arts and the historical and cultural aspects of the lives of the citizens of North Carolina.
Four class members remain in this department which defendant Dorsey heads.
Constance Hawthorne
Class member Hawthorne was employed as the Administrative Assistant III for a former Secretary of this department and for Dorsey until she was demoted and transferred in May 1986. Dorsey argues that this adverse personnel action “is not substantially equivalent to dismissal and Ms. Hawthorne has suffered no injury.” While Hawthorne did not suffer a reduction in pay, her pay grade was substantially lowered, thus limiting future salary increases. As such she did suffer an injury. That observation does not, however, end the inquiry as there must be an analysis under
Delong
on the choice Hawthorne faced when she was demoted. There are genuine issues of material fact in this regard making summary judgment inappropriate.
Dorsey does not contend that this position is one for which political affiliation is an appropriate consideration.
David N. McKay
Class member McKay served as Director of the State Library Division from the Holshouser administration until 1985 when Dorsey discharged him. Dorsey contends that as one of the highest ranking persons in the department hierarchy, as well as one of the highest paid, McKay occupied a position for which political affiliation is an appropriate requirement. Plaintiffs contend McKay occupied a “professional position.”
The job description states,
inter alia,
that the Director of the State Library System is responsible for “drafting legislation, informing legislators, interpreting policy or guidelines ... and serving as a library expert on official committees.” Dorsey further contends that McKay played a large role in developing and planning programs throughout the library system and had substantial public contact. These allegations are supported by McKay’s deposition testimony. However, McKay contends that his main function was to render professional opinions to his supervisor about the state library and the public library system. McKay Deposition, p. 38.
Even though McKay held a position that was “professional” in character, the court is persuaded that the responsibility of the position, especially as it relates to the Legislature, is sufficiently broad to make political affiliation an appropriate requirement.
Richard Sawyer
Class member Sawyer was employed as the Sites Administrator and head of the Historic Sites Section of the Division of Archives and History.
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Dorsey contends that this position had “impact ... on areas where partisan political disagreement could occur.” Plaintiffs contend that Sawyer occupied a purely professional position.
The job description for this position provides, in part, that:
The Historic Sites Section has the responsibility to develop and conduct a program which will meet the state’s current and foreseeable future needs in the field of history as it relates to historic places and things. Such a program involves research, acquisition, preservation, and restoration plus the development of an intre-pretive [sic] program for each of the State Historic Sites.
Based on division organization, areas of administration of the section include:
1. Policy responsibilities. Implement basic divisional policies essential to the conduct and control of the work of the section. This is to apply not only to policy in initiating work programs for the section but staff policy as well; i.e., policy on acquisition of sites and artifacts, on preservation, appropriate use, and reconstruction of historic buildings, as well as qualification of staff, determination of staff schedules and site visiting hours.
2. Planning, a. Upon determination of purpose and objectives for the section, develop comprehensive plans, both long and short range, based on overall and
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immediate need. This necessitates a determination of priorities, b. Organize section staff with a view toward its growth as the need arises, and geared to achieve results as outlined in the objectives.
3. Administration, a. Fiscal responsibilities — Recommendations for preparation of the budget and responsibility for its expenditure include everything from office supplies to capital improvements and restoration costing hundreds of thousands of dollars including both state-owned properties and local projects receiving state or federal aid....
The job description and Sawyer’s deposition testimony reveal that he had a public relations role that was significant.
Upon a full review of the materials presented, the court is persuaded that this position is one for which political affiliation is an appropriate requirement.
Lawrence Wheeler
Class member Wheeler served as the Deputy Director for this department until March 1985. He was the only Deputy Secretary for this department. Dorsey argues that this high level position is one for which political affiliation is an appropriate requirement. The court agrees. Plaintiffs again urge the court to consider defendant Martin’s assertion, made earlier in this action, that none of these positions required political affiliation. Plaintiffs further argue that this position should be viewed as strictly “professional” since the Martin transition team recommended that Wheeler be retained because of his “professional competence.” The court is unpersuaded.
As Deputy Director, Wheeler
coordinate[d] professional program details which needed action by the Secretary and ... recommend[ed] action to the Secretary ... advise[d] [the] Secretary on general budgetary needs and policy direction for [the] Department [and] ... help[ed] [the] Secretary devise budgetary strategies for the legislature.
Wheeler Interrogatory Response No. 11;
see also
excerpt of job description submitted by defendant Dorsey.
Wheeler’s necessarily close working relationship with the Secretary, as well as his own admission that he participated in budget formation and policy directives for the department as a whole, indicate that he occupied a position for which political affiliation is an appropriate requirement.
To summarize, the court concludes that as to the positions held by class members McKay, Sawyer and Wheeler political affiliation was an appropriate requirement and Dorsey’s motion for summary judgment against them will be allowed. There is insufficient information before the court on which to make a decision as to the injury suffered by class member Hawthorne.
E.
DEPARTMENT OF NATURAL RESOURCES AND COMMUNITY DEVELOPMENT
S. Thomas Rhodes
Rhodes is the current Secretary and head of the department. N.C.Gen.Stat. § 143B-276 provides that:
It shall be the duty of the department:
(1) To provide for the management and protection of the State’s natural resources and environment;
(2) To promote and assist in the orderly development of North Carolina counties and communities;

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1407017. Public record. Not legal advice.