Gentry v. Lowndes County MS

United States Court of Appeals

Fifth Circuit

F I L E D

July 3, 2003

UNITED STATES COURT OF APPEALS Charles R. Fulbruge III

FOR THE FIFTH CIRCUIT Clerk

_______________________

No. 01-60672

_______________________

CHARLES M (MICKY) GENTRY,

Plaintiff-Appellee,

versus

LOWNDES COUNTY, MISSISSIPPI; ET AL,

Defendants,

JOE BROOKS, In his individual capacity,

Defendant-Appellant.

_______________________________

LEW CORNELIUS,

Plaintiff-Appellee,

versus

LOWNDES COUNTY, MISSISSIPPI; ET AL,

Defendants,

JOE BROOKS, In his individual capacity,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

Before JONES, WIENER, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Lowndes County and Joe Brooks, president of its board of

supervisors, appeal the district court’s denial of their motions

for summary judgment against the appellees’ political patronage

dismissal claims. We conclude that the appellees, who held the

posts of county road manager and county administrator, occupied

politically sensitive and responsible posts in which loyalty to the

elected board is an essential quality. They could therefore be

terminated for supporting the board’s political opponents. We

therefore reverse the district court’s denial of Brooks’s claim of

qualified immunity on this one aspect of appellees’ case against

Brooks. The county’s appeal is dismissed.

I. BACKGROUND

Charles Gentry is the former Lowndes County road manager,

and Lew Cornelius is the former Lowndes County administrator. In

January 2000, the newly elected Lowndes County board of supervisors

decided by a three-to-two vote not to renew Gentry’s and

Cornelius’s contracts; appellant Joe Brooks was the president of

the new board and voted with the majority.

Gentry and Cornelius each filed suit against Lowndes

County and Brooks, in his individual capacity, alleging that they

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were discharged in violation of their First Amendment rights.1

Specifically, Gentry alleges that he was unconstitutionally

discharged for supporting and campaigning for Brooks’s political

opponent and for opposing Brooks’s requests that he fire the son of

Brooks’s political opponent and perform road work to benefit

Brooks’s friends. Cornelius alleges that he was unconstitutionally

discharged for supporting and campaigning for Brooks’s political

enemy, for complaining to the board about the former chancery

clerk’s receiving illegal funds, and for opposing Brooks’s requests

to fire the son of Brooks’s political opponent and to hire Brooks’s

girlfriend.

After the district court consolidated the actions,2 the

defendants filed motions to dismiss or for summary judgment,

arguing in part that Brooks should receive qualified immunity from

Gentry’s and Cornelius’s political patronage dismissal claims.3

Pursuant to 28 U.S.C. § 636(c), the parties consented to

1

Gentry and Cornelius also alleged violations of due process, equal protection, and various

state laws. Those issues, however, are not presently before this court.

2

The district court consolidated the actions of Gentry, Cornelius, and a third plaintiff Douglas

Ray Buchanan. This appeal, however, does not concern Buchanan.

3

The defendants also sought peremptory relief predicated inter alia on the application of the

Connick-Pickering balancing test to specific speech by the appellees, which the appellees characterize

as whistleblower speech. For instance, appellees claim First Amendment protection for their refusal

to hire Brooks’s friends or fire his foes and Gentry’s objection to a demand to use county crews on

a private construction project. The magistrate judge denied relief on these claims and issues, and they

have not been specifically briefed on appeal.

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disposition of the case by a magistrate judge. The magistrate

judge denied the summary judgment motions.

II. DISCUSSION

A. Jurisdiction

“District court orders denying summary judgment on the

basis of qualified immunity are immediately appealable under the

collateral order doctrine, notwithstanding their interlocutory

character, when based on a conclusion of law.” Chiu v. Plano

Indep. Sch. Dist., 260 F.3d 330, 340 (5th Cir. 2001) (citing Lukan

v. N. Forest ISD, 183 F.3d 342, 345 (5th Cir. 1999)). Whether a

public employee can be dismissed for exercising his First Amendment

right to support political opponents of his superiors is a question

of law for the court. Hoard v. Sizemore, 198 F.3d 205, 211-12 (6th

Cir. 1999). The Fifth Circuit reviews the denial of qualified

immunity de novo. Cozzo v. Tangipahoa Parish Council-President

Gov’t, 279 F.3d 273, 284 (5th Cir. 2002).

Lowndes County urges the exercise of jurisdiction over

its interlocutory appeal because the defenses asserted by Brooks

would, if accepted, also protect the county from liability. Such

jurisdiction is clearly foreclosed, since the county is unprotected

by immunity. See, e.g., McKee v. Rockwall, 877 F.2d 409, 412 (5th

Cir. 1989).

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B. Qualified Immunity

Qualified immunity protects government officials

performing discretionary functions from liability as long as their

conduct does not violate “clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515,

153 L. Ed. 2d 666, 678 (2002) (citation omitted); Roe v. Tex. Dep’t

of Protective & Regulatory Servs., 299 F.3d 395, 408-09 (5th Cir.

2002). Qualified immunity analysis involves two steps. The first

inquiry is whether the plaintiffs have alleged a constitutional

violation. Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995). If

the first inquiry is satisfied, this court must determine whether

the defendant’s conduct was objectively reasonable in light of

clearly established law at the time the challenged conduct

occurred. Goodson v. City of Corpus Christi, 202 F.3d 730, 736

(5th Cir. 2000).

Gentry and Brooks allege that they were discharged in

violation of their First Amendment rights because each campaigned,

respectively, for Brooks’s political opponent William Brown and

Brooks’s political enemy, fellow County Supervisor Leroy Brooks.4

4

Joe Brooks represented District 4, and Leroy Brooks represented District 5. Both are

Democrats. They were, however, political enemies; there was animosity between the two men, and

Joe Brooks politicked against Leroy Brooks in his district. In this circuit’s political patronage firing

cases, the inquiry focuses on “support of and loyalty to a particular candidate as distinguished from

a political party.” Correa v. Fischer, 982 F.2d 931, 935 (5th Cir. 1993) (quoting McBee v. Jim Hogg

5

Brooks contends that because Gentry and Cornelius held high-level

administrative positions, for which loyalty to the Board of

Supervisors is essential, he did not violate their First Amendment

rights even if he voted against rehiring them because of their

political activites.5

In a number of cases, the Supreme Court has established

that public employees do not necessarily shed their First Amendment

rights of speech and political association in exchange for their

jobs, but they often must make adjustments.6 That is to say, the

Court has acknowledged that public employees’ exercise of certain

First Amendment rights may legitimately be restrained where it

could lead to an inability of elected officials to get their jobs

done on behalf of the public. See Branti, 445 U.S. at 517-18.

County, 703 F.2d 834, 838 (5th Cir. 1983), vacated on other grounds, 730 F.2d 1009 (1984) (en

banc)).

5

Given the fact that the entire board had to vote on Gentry’s and Cornelius’s terminations,

and that they were fired by a 3-2 vote, their seeking to impose liability on Brooks individually seems

at best a queer strategic choice and at most, not even a cognizable claim. Brooks plainly could not

fire these officials on his own, hence it seems doubtful that he could have caused a constitutional

violation. Brooks appears to have inartfully raised this point in the trial court, arguing that under

Oden v. Oktibbeha County, 246 F.3d 458 (5th Cir. 2001), he could not be held individually liable.

Oden, however, interprets 42 U.S.C. § 1981, not the question (raised here) of a county supervisor’s

individual § 1983 liability for a decision that could only be made by the county board as an entity.

In any event, Brooks has not urged this issue on appeal, and this court cannot consider issues that are

not raised in a party’s appellate brief. Smith v. State Farm Fire & Cas. Co., 695 F.2d 202, 206 (5th

Cir. 1983).

6

Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574, 584 (1980);

see also Rutan v. Republican Party, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990); Elrod

v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).

6

Courts must balance these important public and individual interests

in order to determine the constitutionality of particular adverse

employment actions. The balancing test pertinent here considers

among other things the policy sensitivity of the employment, the

nature and content of the employee’s speech or political activity,

the extent of public concern implicated by the speech, and whether

close confidential working relations with elected officials are

necessary. This circuit, interpreting the Court’s decisions,

places cases involving only political association, only speech, or

a combination of the two on a spectrum. Kinsey v. Salado Indep.

Sch. Dist., 950 F.2d 988, 993-94 (5th Cir. 1992) (en banc) (citing

McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984)).

Where nonpolicymaking, nonconfidential employees are discharged

solely because of their private political views, little, if any,

weighing7 of an employee’s First Amendment rights against an

employer’s right to loyal and efficient service is necessary, and

the employee’s rights will usually prevail. Id.; McBee, 730 F.2d at

1014. On the opposite end of the spectrum, however, are cases

where employees’ exercise of First Amendment privileges “clearly

7

In Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), the Supreme

Court expressly adopted the balancing analysis first recognized in Pickering v. Bd. of Educ., 391 U.S.

563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and applied it to cases in which a public employee

asserts that he has been disciplined in retaliation for the exercise of First Amendment speech. This

court adapted the test to hybrid situations involving political association as well as speech claims.

See Kinsey, 950 F.2d at 993-94.

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over-balanced [their] usefulness.” McBee, 730 F.2d at 1014 (citing

Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970); Duke v. N.

Tex. State Univ., 469 F.2d 829 (5th Cir. 1972)). When cases fall

within the spectrum, courts are to balance the extent to which

“public concerns” are implicated by the employees’ speech or

association against the significance of maintaining a close or

confidential working relationship with the public employer.

Kinsey, 950 F.2d at 994. Kinsey emphasizes that where a public

employee (there, a school superintendent) occupies a confidential

or policymaking role, the employer’s interests more easily outweigh

the employee’s First Amendment rights. Id.

Here, there is no doubt that Gentry and Cornelius put

their political beliefs into action. On weekends and at night,

Gentry campaigned for Brooks’s political opponent, William Brown.

Cornelius solicited votes for Brooks’s political enemy, Leroy

Brooks, and talked his brother-in-law out of running against Leroy.

These core First Amendment political activities must be evaluated

against the backdrop of the appellees’ employment responsibilities.

Gentry and Cornelius concede that they owe allegiance to

the Board of Supervisors as a whole. In other words, with respect

to the entire board, “party affiliation is an appropriate

requirement for the effective performance of the public office[s]

involved.” Branti, 445 U.S. at 518, 100 S. Ct. at 1295, 63 L. Ed.

2d at 584. The appellees contend, however, that they cannot be

8

required to enjoy the trust and confidence of or demonstrate

political loyalty to Brooks as an individual supervisor. This

perspective is artificially narrow for two reasons. First, Kinsey,

is contrary to their position, as this court held that a school

board did not violate the superintendent’s First Amendment rights

when it terminated his contract because he opposed the election of

several, but not all, board members. Kinsey, 950 F.2d at 996.

Second, what Kinsey means is that if a public employee’s loyalty is

owed to a multimember governing board, he cannot choose political

favorites or enemies among the board because shifting coalitions or

electoral victories may too easily render the employee’s decisions,

made in accord with personal preference, at odds with the board

majority view. Political neutrality toward all elected board

members must be the rule in such situations, if the employee holds

a position in which neutrality may be constitutionally required.

This leads to appellees’ additional line of attack, which

is that their posts in county government are not of a policymaking

nature and hence do not require them to stifle their exercise of

First Amendment political rights. Although this court has not

previously addressed whether county road managers or administrators

occupy politically sensitive posts, we have permitted dismissals of

politically unreliable employees in a number of other positions

following the applicable balancing test. See, e.g., Aucoin v.

Haney, 306 F.3d 268 (5th Cir. 2002) (assistant district attorney);

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Kinsey, 950 F.2d at 995-96 (school superintendent); Soderstrum v.

Town of Grand Isle, 925 F.2d 135, 141 (5th Cir. 1991) (personal

secretary to police chief); Stegmaier v. Trammell, 597 F.2d 1027,

1040 (5th Cir. 1979) (deputy clerk).8 We have also held that

qualified immunity is appropriate in a case where “neither the

Fifth Circuit nor the Supreme Court had addressed the issue of

political patronage in the hiring or firing of investigators in

district attorneys’ offices, and neither had addressed an issue

sufficiently analogous that a reasonable official would understand

from its resolution that it is a First Amendment violation to

dismiss or not hire an investigator on the grounds that the

investigator supported the campaign of the official’s opponent.”

Gunaca v. Texas, 65 F.3d 467, 475 (5th Cir. 1995).

Nevertheless, other courts have uniformly held that the

First Amendment does not protect employees in positions similar to

the Lowndes County road manager from political dismissals. The

Sixth Circuit, for example, concluded that a county road department

foreman, the equivalent of Lowndes County’s road manager, occupies

8

But see Brady v. Fort Bend County, 145 F.3d 691, 709-10 (5th Cir. 1998) (concluding that

deputy sheriffs do not fall within the class of public servants from whom political allegiance may be

demanded); Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir. 1995) (same); Click v. Copeland, 970

F.2d 106, 112-13 (5th Cir. 1992) (same); Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981).

The deputy sheriff cases are distinguishable from our other dismissal cases either because they do not

hold policymaking or confidential positions, Barrett, 649 F.2d at 1201, or because the sheriffs do not

allege that the deputies’ po litical activities actually or potentially could affect the Sheriffs Office’s

ability to provide services, Brady, 145 F.3d at 709-10; Click, 970 F.2d at 112-113; Vojvodich, 48

F.3d at 886.

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an inherently political position that falls within the Branti

exception. Hoard, 198 F.3d at 213-14; see also Selch v. Letts, 5

F.3d 1040 (7th Cir. 1993) (political affiliation may

constitutionally serve as a hiring consideration where the

plaintiff, a highway subdistrict superintendent, oversaw the

maintenance and repair program for state highways, buildings,

grounds, and equipment); Wagner v. Hawkins, 634 F. Supp. 751, 754

(W.D. Ark. 1986) (county road foreman falls within the Branti

exception).

The road manager is the second highest non-elected

management position in Lowndes County. The road manager runs a

county road department supervising the building of bridges and the

construction and maintenance of county roads. He also helps to

prepare a budget, purchases and leases equipment, hires assistants

and employees, and carries out the general policies of the county

board of supervisors. MISS. CODE ANN. § 65-17-1. Roads in rural

Mississippi are the political lifeblood of elected officials, and

the public’s view of the elected supervisors depends greatly on the

road manager’s performance and supervision of employees. The road

manager occupies a position where “party affiliation is an

appropriate requirement for the effective performance of the public

office involved.” Branti, 445 U.S. at 518, 100 S. Ct. at 1295, 63

L. Ed. 2d at 584. As the Sixth Circuit explained in Hoard,

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In light of the inherent nature of this position, which

involves responsibility for carrying out the county

judge-executive’s road maintenance policy and controlling

the lines of communication between the public and the

judge executive, as well as the nature of the job as

envisioned by the new officeholder, we conclude that the

position is inherently political. The evidence in the

record shows that, although the road foreman does not

have significant discretionary authority as to policy

matters, he serves as the judge’s “alter ego” in the

community with respect to road conditions.

Hoard, 198 F.3d at 213-14 (citation omitted).

The county administrator holds a similar position, though

with broader policymaking authority than the road manager, and he

works closely with the board of supervisors. The administrator’s

duties include, but are not limited to, ensuring that board orders,

resolutions, regulations, and policies are executed; preparing a

budget; employing assistants for the board; working as a liaison

with various divisions of county government; ensuring that county

property is properly managed, maintained, and repaired; reporting

to the board on the county’s affairs and financial condition;

informing the board of federal and state laws that affect the

board; receiving, investigating, and reporting citizens’ complaints

to the board; meeting regularly with the board; and performing any

administrative duties legally delegated to him by the board. MISS.

CODE ANN. § 19-4-7.

Because the road manager and county administrator occupy

critical managerial roles in county government, and because their

duties strongly influence the public’s view of the elected board of

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supervisors, the board must be assured of the trust and loyalty of

the road manager and administrator and must be able to assume the

confidentiality, when necessary, of their mutual dealings. These

appellees’ positions enable them to advance the board’s policies,

if they act faithfully, or to undermine those policies by overt or

covert opposition. Because Gentry’s and Cornelius’s political

activities created strains that could easily disrupt and prevent

the effective performance of public services, the government

interest must take precedence over those activities. We therefore

conclude that even if Brooks voted to discharge Gentry and

Cornelius because they campaigned for his political opponent and

enemy, they failed to allege a violation of their constitutional

rights in this respect.9

That Brooks is shielded from First Amendment liability if

he fired Cornelius and Gentry solely for their political activities

against him does not end this case, however. The appellees also

allegedly opposed certain of Brooks’s official actions, including

his desire to put his girlfriend on the county payroll and his

insistence that county resources be used to pave a friend’s road on

private property. Brooks asserts, without explanation, that the

9

Because the appellees fail to allege a violation of their constitutional rights, we need not

address the second prong of the qualified immunity analysis. We note, however, that under Noyola

v. Tex. Dep’t of Human Res., 846 F.2d 1021 (5th Cir. 1988), Brooks’s conduct was not objectively

unreasonable because the right Gentry and Cornelius attempt to assert was not clearly established at

the time the challenged conduct occurred. See also Gunaca, supra.

13

Branti exception allowed him to seek to terminate Gentry and

Cornelius for speech other than that related to their political

activities. This assertion is incorrect. Kinsey places all public

employee speech on a spectrum based on analysis of the nature of

the speech as well as the employee’s position. A position of trust

and confidence limits the employee’s right to engage in political

activity against his superiors, in Kinsey as in this case, but the

position “does not immunize public employer action unconnected to

and unmotivated by [the] need for political loyalty.” Bonds v.

Milwaukee County, 207 F.3d 969, 979 (7th Cir. 2000) (relying on

Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1221 (7th Cir.

1994) (government employer could not terminate a policymaking

employee for speech criticizing her employer’s abuse of office

because the speech did not involve her political or policy

viewpoints)). Thus, Gentry’s and Cornelius’s “speech” concerning

Brooks’s official actions, rendered in the course of their

employment, may have been protected under the First Amendment,

rendering retaliation by Brooks possibly unconstitutional. A

number of issues must be resolved before judgment can be entered

for appellees: whether they indeed engaged in such employment-

related speech; whether under the Pickering/Connick test, the

speech touched matters of “public concern” and is otherwise

constitutionally protected in the workplace; and whether that

speech, as opposed to appellees’ political activities, motivated

14

their termination. We note, without deciding, these issues, which

are not before us on appeal and remain to be decided by the

district court.

III. CONCLUSION

As Lowndes County road manager and administrator, Gentry

and Cornelius held positions that fall within the Branti exception

to First Amendment protection of political association and speech.

When they decided to support and campaign for Brooks’s political

opponent and enemy, they abandoned any First Amendment protection

otherwise afforded them against a patronage dismissal. The

district court judgment denying Brooks’s motion to dismiss Gentry’s

and Cornelius’s political dismissal claims based on qualified

immunity is therefore reversed.

REVERSED and REMANDED.

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