Carlson, Phillip D. v. Gorecki, Mary E.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-1732

PHILLIP D. CARLSON and THOMAS R. SMITH,

Plaintiffs-Appellees,

v.

MARY E. GORECKI,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 CV 9235—Charles R. Norgle, Sr., Judge.

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ARGUED APRIL 15, 2004—DECIDED JUNE 29, 2004

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Before FLAUM, Chief Judge, and MANION and ROVNER,

Circuit Judges.

MANION, Circuit Judge. Phillip Carlson and Thomas Smith

worked as special investigators for the Kane County,

Illinois, State’s Attorney’s office. In December 2000, de-

fendant Mary Gorecki, the Kane County State’s Attorney,

fired Carlson and Smith allegedly because of their speech on

matters of public concern, namely, their support of

Gorecki’s opponent in the election and their allegations that

Gorecki was involved in various jobs-for-favors and

kickback schemes. Carlson and Smith filed this action under

2 No. 03-1732

42 U.S.C. § 1983, asserting that Gorecki’s decision to fire

them violated the First Amendment. After discovery,

Gorecki filed a motion for summary judgment asserting that

Carlson and Smith occupied policymaking or confidential

positions and that she was entitled to qualified immunity.

The court denied Gorecki’s motion. She appeals, and for the

following reasons, we affirm.

I.

Both Phillip Carlson and Thomas Smith were hired as

special investigators by the former Kane County State’s

Attorney, David Akemann. As investigators, both Carlson

and Smith were routinely called upon, for example, to locate

witnesses, serve subpoenas, transport witnesses to court,

and interview witnesses. Both were supervised by an

Assistant State’s Attorney, John Barsanti. Beginning in 1986,

Barsanti supervised investigators in the Kane County State’s

Attorneys’ office. According to Barsanti, the main duty of

Carlson and Smith was serving subpoenas. Both Barsanti

and former State’s Attorney Akemann testified that political

affiliation did not matter to the investigator position. The

evidence presented shows that neither Carlson nor Smith

participated in the policymaking decisions of the office, and

that political affiliation was not regarded as important to the

job of investigator. Barsanti emphasized that the investiga-

tors were not given discretion in performing their jobs, but

that on the rare occasions that the investigators were asked

to “investigate” matters, they were instead given specific

tasks to accomplish, such as taking a photograph of a

building.

Gorecki won the election and replaced Akemann as Kane

County State’s Attorney. On her first day at work as state’s

No. 03-1732 3

attorney in December, 2000, she fired1 Carlson after he had

been on the job for four years and Smith after he had been

on the job for two years. For purposes of this appeal, it is

undisputed that Gorecki fired Carlson and Smith because

she viewed them as her political enemies and blamed them

for an attempt to smear her politically. Carlson and Smith

supported Gorecki’s opponent in the primary election, and

Gorecki blamed Carlson for exposing information regarding

Gorecki’s alleged involvement in kickback and jobs-for-

favors schemes prior to taking office.2 Gorecki similarly

blamed Smith for authoring and circulating a letter criticiz-

ing her during the election for Kane County State’s Attor-

ney. According to Gorecki, despite the fact that she shared

the same party affiliation as Carlson and Smith, they were

her “political enemies.”

1

Gorecki maintains that the position of special investigator, a

statutory appointment by the state’s attorney, runs concurrently

with the tenure of the appointing state’s attorney. Thus, accord-

ing to Gorecki, she did not fire Carlson and Smith, but merely

refused to reappoint them as special investigators. Gorecki does

acknowledge, however, that regardless of her statutory argu-

ment, “holdover” situations are possible. The plaintiffs claim that

they were holdover employees and were fired by Gorecki on

December 1, 2000. This factual dispute is immaterial because

Rutan v. Republican Party of Ill., 497 U.S. 62, 79 (1990), prohibits

hiring, as well as firing, based on political affiliation when po-

litical affiliation is not appropriate for effective performance of

the job. For ease of reference, we will regard the plaintiffs as fired

from their jobs.

2

The exposure of this information led to the Illinois bar authori-

ties’ decision to suspend Gorecki from the practice of law for a

period of four months in 2003 due to statements she made in

violation of the Rules of Professional Conduct. See In re Gorecki,

No. 96299, 2003 WL 22725624 (Ill. Nov. 20, 2003).

4 No. 03-1732

After Carlson and Smith were fired, they filed this § 1983

suit against Gorecki alleging a First Amendment violation.

Gorecki filed a motion for summary judgment on the

grounds of qualified immunity, arguing that Carlson and

Smith were policymakers or confidential employees.

Gorecki admits that she fired Carlson and Smith solely for

political reasons, i.e., their public support of her opponent

and public criticism of her reputation for honesty. The court

granted Carlson and Smith the right to take limited discov-

ery before it ruled on the motion. Carlson and Smith

deposed Barsanti, the First Assistant State’s Attorney, and

Akemann, the former State’s Attorney.

Gorecki, in support of her argument that the plaintiffs

were policymakers or confidential employees, relied on the

evidence that investigators serve at the pleasure and dis-

cretion of the state’s attorney and that statute provides that

the state’s attorney has the sole power to appoint, remove,

and discipline a special investigator. The state’s attorney is

also permitted by statute to assign a special investigator to

investigate civil, criminal, and administrative matters and

serve as an agent of the grand jury. Of course, any investiga-

tion conducted by the special investigator is considered

confidential, as are any conversations between the special

investigator and the state’s attorney or supervising assistant

state’s attorney. Likewise, the assignment involves a

position of trust. The court, however, denied Gorecki’s mo-

tion for summary judgment by finding that there were ma-

terial issues of fact in dispute concerning whether the job of

special investigator is a policymaking or confidential

position.

II.

We review de novo the district court’s decision to deny

Gorecki’s motion for summary judgment on qualified im-

No. 03-1732 5

munity grounds. Beauchamp v. City of Noblesville, 320 F.3d

733, 742 (7th Cir. 2003). We start with the general proposi-

tion that public employees may not be made to suffer ad-

verse job actions because of their political beliefs. Rutan v.

Republican Party of Ill., 497 U.S. 62, 79 (1990); Elrod v. Burns,

427 U.S. 347 (1976). An exception to this general rule is per-

mitted when the government employee responsible for the

adverse action can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the

public office involved. See, e.g., Branti v. Finkel, 445 U.S. 507,

517-18 (1980).

Traditionally, we have referred to this exception for ease

of reference as the “policymaking” or “confidential” em-

ployee exception because those terms fit the majority of

situations where the exception applies. See Hudson v. Burke,

913 F.2d 427, 431 (7th Cir. 1990). The ultimate inquiry,

however, is not a search for whether the job fits the appro-

priate label “policymaker” or “confidential,” but whether

party affiliation is an appropriate requirement for perform-

ing the job. See Thompson v. Illinois Dept. of Professional

Regulations, 300 F.3d 750, 755-56 (7th Cir. 2002). Whether

party affiliation is an appropriate requirement for perfor-

mance of the job is determined by a functional test that ex-

amines the powers and duties inherent in the position. See

Hudson, 913 F.2d at 431. This inquiry considers both the

historical treatment of the position and the actual work

performed by the people who hold the position. See id. at

433; Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997);

Thornburg v. Peters, 155 F. Supp. 2d 984, 990-91 (C.D. Ill.

2001).

At the outset, Gorecki errs by focusing solely on whether

the special investigator position fits within the “policy-

maker” or “confidential” labels. She ignores the broader and

determinative question of whether party or political affilia-

6 No. 03-1732

tion is an appropriate requirement for the job. See Thompson,

300 F.3d at 755-56. In fact, there is sufficient evidence in the

record to defeat Gorecki’s motion for summary judgment,

including Barsanti’s deposition, indicating that political

affiliation was not important to the job. Gorecki’s reliance

on Hudson is misplaced, because there we found that the

plaintiff investigators who were fired by the City of Chicago

contributed to controversial political decisions made by the

politically charged city finance committee. See Hudson, 913

F.2d at 433. In Hudson, we found that the investigator

position was inherently political in nature and involved

investigators who were hired primarily due to their political

affiliation. Id. at 432 (“Political affiliation was a primary

reason [plaintiffs] were hired; all performed political

work.”). Here, in contrast, there is sufficient evidence for a

jury to reject Gorecki’s claim that the special investigator

position contributed to political decisions or that the holders

of the office were hired primarily due to their political

affiliation.

Gorecki’s decision to entirely eliminate the special inves-

tigator position after firing Carlson and Smith also makes it

difficult for Gorecki to establish that political affiliation is

important to the job. Compare id. at 433 (considering the job

responsibilities of those who replaced the plaintiff investiga-

tors who were fired). In addition, the government official in

Hudson testified that he envisioned an expanded role for the

investigator position, including additional investigatory

duties involving sensitive political information. See id. In

contrast, Gorecki has failed to submit evidence that the

investigators handled sensitive political information or even

that she intended to use the job for that purpose in the

future. It is possible to infer from Gorecki’s decision to

eliminate the special investigator position not only that it

was a non-patronage job, but also that the position was not

important at all for the functioning of the office.

No. 03-1732 7

Turning to Gorecki’s focus on the policymaking and con-

fidential monikers, as stated, we look both to the historical

treatment of the job and to the work performed by those

who presently hold the position to determine the inherent

nature of the job. See id.; Flenner, 107 F.3d at 465; Thornburg,

155 F. Supp. 2d at 990-991. Much if not most of the evidence

in the record reveals that the position involved almost

exclusively ministerial functions such as locating witnesses,

serving subpoenas, transporting witnesses to court, and

interviewing witnesses. The special investigators had little,

if any, direct contact with the state’s attorney and were

instead supervised by an assistant state’s attorney. The

state’s attorney’s office was not a small, intimate setting, but

instead had over 30 assistant state’s attorneys, in addition to

various staff members. But see Matlock v. Burns, 932 F.2d 658,

665 (7th Cir. 1991) (acknowledging that at least in a small

office setting, political animosity can be a legitimate basis

for firing by an elected official forced to have constant,

direct contact with a person viewed as a political enemy).

Gorecki’s evidence, at best, shows that the position has the

potential to impact policy. This is unhelpful, because all jobs

under the authority of the state’s attorney have this poten-

tial, depending upon how the state’s attorney uses the

position. The special investigator position, like any other job

at the state’s attorney office, requires a certain degree of

confidentiality. Access to confidential information alone,

however, does not mean that the job is confidential for

purposes of applying the confidential employee exception

to the ban on patronage dismissals. See id. at 665. Access to

confidential files by a lower-level employee who, while not

a policymaker, is openly politically hostile, may be reason

for termination. However, as stated, the potential, specu-

lative uses of the position are not significant in this case

because we are construing the facts in the light most

favorable to the plaintiffs, and because Gorecki has elimi-

8 No. 03-1732

nated the position without submitting any evidence that she

will resurrect it with a political focus.

Finally, based on this record, Gorecki is not entitled to

qualified immunity. The cloak of qualified immunity is re-

moved from a government official if the plaintiffs show that

the law prohibiting the government official’s conduct was

“clearly established.” Gregorich v. Lund, 54 F.3d 410, 413 (7th

Cir. 1995). The test for whether the law was clearly estab-

lished must be conducted based on the specific facts of the

case, and not at a high level of generality. See Greenberg v.

Kmetko, 922 F.2d 382, 383-84 (7th Cir. 1991).

Here, the plaintiffs have met their burden because this

case is remarkably analogous to Matlock, 932 F.2d at 662.

In Matlock, we held that a City of Gary, Indiana, law

department investigator with the primary duties of inves-

tigating claims by visiting accident sites, interviewing

witnesses, taking pictures, and preparing written recom-

mendations was not a policymaker or confidential em-

ployee. Matlock, 932 F.2d at 664.

Based on the record, Carlson and Smith had less dis-

cretion and responsibility than the legal investigator in

Matlock. As far as we know from the summary judgment

record, the main duties of Carlson and Smith were ministe-

rial functions such as locating witnesses, serving subpoenas,

transporting witnesses to court, and interviewing witnesses.

On the rare occasions that they were required to submit a

report, the report was merely factual and did not contain

recommendations. In Matlock, we rejected the government’s

arguments that the investigator was a policymaker because

he exercised a great deal of discretion in how he carried out

investigations, and we also rejected the claim that the

position was confidential because the investigator had

unlimited access to confidential files. See id. at 662. Essen-

tially, Gorecki is making the same argument here. Her claim

No. 03-1732 9

of qualified immunity fails because the record shows that

Carlson and Smith had jobs involving functions more

ministerial than the functions of the investigator in Matlock.

See Upton v. Thompson, 930 F.2d 1209, 1213 (7th Cir. 1991)

(holding that a strictly menial government worker is clearly

and completely protected from patronage firing). The

special investigator position in Kane County was menial to

such an extent that, after the firing of Carlson and Smith, the

position was entirely eliminated.

In closing, we emphasize the limited nature of our hold-

ing that is dictated by the specific and somewhat limited

facts of this record. A state’s attorney is clearly not prohib-

ited from utilizing the position of special investigator as a

policymaker or confidant so as to make political affiliation

an appropriate consideration for the job. Here, the defen-

dant has presented no evidence that the positions the two

plaintiffs held rose to a level requiring political sensitivity.

The nonessential quality of these jobs is underscored by the

fact that Gorecki saw no need to fill the vacancies created.

III.

The district court properly denied Gorecki’s motion for

summary judgment. Gorecki has failed to submit sufficient

evidence for us to conclude as a matter of law that party

affiliation is an appropriate requirement for the special in-

vestigator position. Instead, substantial evidence shows that

the position involves primarily ministerial tasks such as

locating witnesses, serving subpoenas, transporting wit-

nesses to court, and interviewing witnesses. Carlson and

Smith have met their burden of identifying closely analo-

gous case law prohibiting a very similar political firing of a

legal investigator, and Gorecki is thus not entitled to qua-

lified immunity. For these reasons, we AFFIRM the decision

of the district court.

10 No. 03-1732

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-29-04