cleaning women, waiters, and supervisor of domestic services at Governor’s executive mansion performed functions which were solely technical in character, which did not concern matters of partisan political interest, or unusual intimate propinquity to Governor so that they were protected against politically motivated discharge
How later courts described this case
- cleaning women, waiters, and supervisor of domestic services at Governor’s executive mansion performed functions which were solely technical in character, which did not concern matters of partisan political interest, or unusual intimate propinquity to Governor so that they were protected against politically motivated discharge
- stating that a job requiring an officeholder to act as spokesperson for political official could not be done effectively except by one who shared the [official’s] political beliefs
- holding that access to confidential information didn’t transform janitorial staff into confidential employees under Branti
- where applicability of Elrod-Branti “not free from doubt, the very uncertainty ... helps to dictate the answer [to the qualified immunity question]: ... the closeness of the call suggests *689 that it could not have been ‘clearly established,’ when [the employee] was cashiered, that political affiliation was an improper criterion” for the position
Written by the judges who cited it.
The opinion
CAMPBELL, Chief Judge
(dissenting from order denying rehearing).
I would not ordinarily dissent from an order denying rehearing but do so here because I believe the Secretary of Justice and Solicitor General of Puerto Rico, acting on behalf of the Governor of Puerto Rico, present compelling reasons for a rehearing on the question of the Governor’s limited immunity.
In our panel opinion, we ruled, on a preliminary record, that certain domestic employees at La Fortaleza, the Governor’s mansion, were not “confidential employees” such that they could be removed for partisan political reasons by the Governor. We recognized that employees who are genuinely “confidential” may be subject to political discharge if their employer can demonstrate that party affiliation is an appropriate requirement for the effective performance of their duties. But we construed the confidentiality exception narrowly. We felt the employees in issue had so far been shown to be merely “persons in service at La Fortaleza generally,” and not “valet[s] or chauffeur[s] specially assigned to minister to the Governor alone.” Maj. at 324. The former, we concluded, were not in sufficient close propinquity' to the *330 Governor to be considered “confidential. We added, however,
The defendants, of course, remain free to attempt to produce at trial additional evidence to demonstrate that this quintet, or some of them, do come within the sphere of confidentiality sufficiently to render political affiliation an appropriate criterion for their job.
Maj. at 329.
Especially in light of the last quoted language, I joined in the panel’s opinion. I should have paid closer attention, however, to the fact that, besides clarifying the law concerning these employees’ status, our opinion unfortunately denies limited immunity to the Governor — meaning that he remains answerable personally in damages. Had we allowed immunity, we could still have clarified the standards pertaining to these employees and let them pursue their claims for reinstatement. Now, having considered the Governor’s persuasive petition for rehearing, I am convinced we erred in denying him limited immunity. The existence of limited immunity depends on whether the law was “clearly established” when the Governor discharged these employees that he could not do so. I believe the law then was anything but “clearly established.”
In so saying, I agree with my colleagues’ general approach that every domestic position at La Fortaleza is not “confidential” simply because the Governor resides there. To be “confidential,” a waiter or cleaner must show such frequent and close propinquity to the person of the Governor (or immediate family members) that a confidential relationship will be inferred regardless of the fact that the employee’s formal duties — unlike those of, say, a private secretary — do not call for any exchange of confidences with the Governor. If this kind of very intimate propinquity can be demonstrated, the Governor may still be able to prevail in the instant case.
But while, looking to the future, I can accept the panel’s general guidelines, I do not see how we can possibly say that, at the time these employees were discharged, the law was clearly established against the Governor s decision to discharge them. We point out in our opinion that the Branti decision (Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980)) acknowledged that “confidential” employees may be unprotected against political discharge. The Court has yet to define a confidential employee. When the Governor fired these employees, there was scant case law even in the lower courts to clarify the protected or unprotected status of a governor’s household servants who are not de jure confidential but who, because of their intimate propinquity to him and his family, may become the de facto recipients of intimate and confidential bits of knowledge of potential use to political enemies.
My colleagues agree that in more usual cases — those relating to the discharge of middle-level “policy-making government employees — the law has not, at least until recently, been “clearly established.” I am at a loss to know why, in the present context, they think the law of confidential employees was any more clear. If anything, I believe the law pertaining to the latter was less clear.
Hence while I believe the panel has initiated standards, which, when refined by further experience, may become workable for determining whether or not particular domestic servants working in a governor’s household may be fired, I strongly dissent from their view that the law prior to this was ever established. I would thus allow a rehearing on the question of the Governor’s limited immunity. Given the murkiness of the law, I believe he should be held immune.