Barnes v. Bosley

BRIGHT, Circuit Judge,

dissenting.

In my view, the result the majority reaches in this case is neither sound as a matter of policy, nor compelled, as a matter of law, by relevant precedent. Specifically, I believe this case to be distinguishable on its facts from the two leading Supreme Court decisions on patronage firing, Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), the principal authority on which the majority relies. Therefore I dissent.

This case does not require us to consider the constitutionality of a wholesale purge for political reasons of large numbers of public employees. Here a public official, elected on a promise to improve the management of a 220-member ministerial agency, upon taking office simply replaced four top-level supervisory personnel in the agency with persons of his own choosing. Significantly, he retained all the lower-level employees, including many who were open supporters of the incumbent clerk whom he defeated in the primary.

It seems to me that anyone responsible for the operation of an agency with hundreds of employees and a budget of millions of dollars would want, and should be entitled, to appoint his own principal subordinates. Indeed, efficient, effective administration would seem to depend upon the relationship of trust and confidence between the principal officer and his closest aides, whether that officer is appointed or elected, and whether the agency is public or private. Therefore, in the absence of precedent compelling a contrary result, I would uphold the right of a top official to choose his own close aides.

The leading cases do not compel a contrary result here. In Elrod v. Burns, supra, the newly elected Democratic sheriff of Cook County, Illinois, discharged a large number of patronage employees who had been appointed by his Republican predecessor. The reason given for the discharges was simply that jobs were needed as patronage for Democratic loyalists. 427 U.S. at 364 n. 18, 96 S.Ct. at 2685 n. 18. Many of those discharged were reinstated after they changed their party affiliation from Republican to Democrat or obtained sponsorship letters from Democratic leaders. Four employees who were not reinstated brought suit, and the Supreme Court held that their discharge, solely because they refused to affiliate with the Democratic Party and failed to obtain the sponsorship of a party leader, violated their rights of *510 free belief and association under the first and fourteenth amendments. Justice Brennan, in the plurality opinion, 1 specifically observed that “efficiency' and effective government” were not concerns of the sheriff who perpetrated the partisan purge in Elrod, 427 U.S. at 364 n. 18, 96 S.Ct. at 2685 n. 18, nor, the plurality commented, could it plausibly be urged that efficient administration would be advanced by “the wholesale replacement of large numbers of public employees every time political office changes hands.” 427 U.S. at 364 , 96 S.Ct. at 2685 .

Likewise, in Branti v. Finkel, supra, the Court held unconstitutional the discharge of two assistant public defenders by the newly appointed Democratic public defender of Rockland County, New York. The assistant defenders were discharged solely because they were Republicans and did not have Democratic sponsors. The Court emphasized that the discharged employees’ duties extended only to representing the clients assigned to them; they had no supervisory responsibility over other employees and no advisory role to play in the defender’s administration of the office:

Although * * * they had broad responsibilities with respect to particular cases that were assigned to them, * * * [they] had “very limited, if any, responsibility” with respect to the overall operation of the public defender’s office. They did not “act as advisors or formulate plans for the implementation of the broad goals of the office” and, although they made decisions in the context of specific cases, “they do not make decisions about the orientation and operation of the office in which they work.” * * * [T]hey did not occupy any confidential relationship to the policymaking process * * *.

445 U.S. at 507 , 100 S.Ct. at 1287 quoting Finkel v. Branti, 457 F.Supp. 1284, 1291 (S.D.N.Y.1978). Indeed, the Court went on to observe, “The primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State.” 445 U.S. at 519 , 100 S.Ct. at 1295 .

To my mind, the case before us now differs in crucial respects from both Elrod and Branti. Unlike Elrod , this is not a case where the discharging official cannot be said to have had no concern for “efficiency and effective government” when he made the discharges. To the contrary, the need for more efficient management of the clerk’s office provided the central theme of defendant Bosley’s election campaign. Again unlike Elrod , this is not a case where a mass party-based discharge, followed by reinstatement of all but those who failed to change party affiliation or obtain party sponsorship, undermines any possible argument that administrative efficiency justified the discharges. Clerk Bos-ley, unlike Sheriff Elrod, replaced only a very few key supervisory employees, retaining in office all the other employees, including those who had openly opposed his election. Moreover, there is no dispute that Bosley’s appointees had superior credentials in public administration to the Rod-dy appointees they replaced. Finally, unlike Elrod , this is not a case where the discharged officials clearly occupied “non-policymaking, nonconfidential” positions. See Elrod, supra, 427 U.S. at 375 , 96 S.Ct. at 2690 (Stewart, J., concurring in the judgment); Branti, supra, 445 U.S. at 517 , 100 S.Ct. at 1294 .

The distinctions between this case and Branti are equally important. The plaintiff officials in this case held high-level, supervisory positions within a large ministerial agency. Their duties naturally included both advising the clerk of court on the administration of the office and carrying out his policy directives. 2 In Branti, by contrast, the duties and responsibilities *511 of the assistant attorneys ran primarily to their individual clients, and did not include supervising large numbers of subordinate employees or advising the public defender on office policy or administration. The need for a close relationship of confidence and trust between the clerk of court and his principal deputies in this case, and the lack of such a need between the public defender and the assistant defenders in Branti, seem to me clear and compelling.

Accordingly, I disagree with the majority that Elrod and Branti must control the result here. Nor do I believe that the result the majority reaches will advance the important interests of efficient public administration at stake in this case. Therefore I would reverse the decision of the district court respecting plaintiff-appellants Barnes and McElroy.

I concur in the court’s disposition of the claims of plaintiff-appellant Thomas, who was dismissed not from a high-level managerial position but from a position that carried no supervisory or managerial responsibilities.

. The plurality consisted of three justices. Two others, who declined to join in the sweeping language of the plurality opinion, concurred in the judgment, solely because the plaintiff employees clearly held "nonpolicymaking, noncon-fidential” positions. 427 U.S. at 375 , 96 S.Ct. at 2690 (Stewart, J., concurring in the judgment).

. That the published job descriptions for the positions held by plaintiff-appellants Barnes and McElroy did not specify that they advise the clerk on office administration does not negate *511 either (1) the fact, found by the district court, that they performed advisory and confidential duties for former clerk Roddy or (2) the inescapable likelihood that, in administering a 220-person agency, incoming clerk Bosley would have to rely on the heads of the several subdivisions of the agency both for advice as to how administration could be improved and for cooperation and assistance in carrying out managerial policy within the office.