Appendix — Jimenez-Fuentes v. Torres Gaztambide

Supreme Court brief1987

Ask Donna

What actually matters in this document.

Text

‘ JIGME WUUth,

py ) j L* ¥ } Fy

; ‘ ~

EG = ¥2 13 JAN 20

NO. 87- i i

IN THE —

Supreme Court of the United States

October Term, 1987

ARNALDO JIMENEZ-FUENTES, HIS WIFE OLGA OSORIO

AND THEIR CONJUGAL PARTNERSHIP AND

JOSE VICENTE VAZQUEZ, HIS WIFE CELESTINA

ALMODOVAR, AND THEIR CONJUGAL PARTNERSHIP

Petitioners

HON. JAIME TORRES GAZTAMBIDE, AS SECRETARY OF

HOUSING OF THE COMMONWEALTH OF PUERTO RICO,

AND IN HIS PERSONAL CAPACITY, HIS WIFE MRS.

CARMEN GLADYS VINCENTY, AND THEIR CONJUGAL

PARTNERSHIP; ROLANDO QUEVEDO DEL RIO, AS

EXECUTIVE DIRECTOR OF THE HOUSING AND URBAN

DEVELOPMENT CORPORATION, AND IN HIS PERSONAL

CAPACITY. HIS WIFE MRS. GINNY MOTTA,

AND THEIR CONJUGAL PARTNERSHIP.

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

APPENDIX TO PETITION FOR CERTIORARI

FRANK RODRIGUEZ-GARCIA

P.O. Box 5338

Ponce, Puerto Rico 00733

(809) 842-1192

Attorney for Petitioners

January 20, 1987

PUBLISHING RESOURCES. INC SAN JUAN, PUERTO RICO

cer es

Rigen

By,

APPENDIX

TABLE OF CONTENTS

APPENDIX A

Opinion and Order of the District Court of

Puerto Rico, entered August 6, 1985 ............. A-l

APPENDIX B

Opinion of the Court of Appeals for the

First Circuit, entered December 20, 1985 ........ A-1l

APPENDIX C

Judgment of the Court of Appeals for the

First Circuit, entered December 20, 1985 ........ A-19

APPENDIX D

Memorandum on Petition for Rehearing of the

Court of Appeals for the First Circuit, entered

ER I soy ao oR eb wed ON ae ob VES A-21

APPENDIX E

Mandate of the Court of Appeals for the

First Circuit, entered February 14, 1986 ......... A-27

APPENDIX F

Order of the Court of Appeals for the First Circuit,

ek ee rere A-29

APPENDIX G

Opinion en Banc of the Court of Appeals for the

First Circuit, entered September 19, 1986 ........ A-31

APPENDIX H

Judgment of the Court of Appeals for the

First Circuit, entered September 19, 1986 ........ A-61

APPENDIX I

Order of the Court of Appeals for the First Circuit,

entered October 21, FRO «60:40 GS. ae A-63

APPENDIX 3

Opinion of the Court of Appeals for the First Circuit

De Choudens v. Government Development Bank,

GULF. 28 5 (ist Cie, TO kc cl we see ees A-65

APPENDIX K

Colon v. CRUV, 115 Puerto Rico Reports 503 ..... A-75

APPENDIX L

Puerto Rico Public Service Personnel Act, Sections

2.1 and 2.2, as amended, 3 L.P.R.A. 1311to 1312 .. A-83

APPENDIX M

Puerto Rico Public Service Personnel Act,

Section 5.3, as amended, 3 L.P.R.A. 1343 ........ A-85

APPENDIX N

Puerto Rico Public Service Personnel Act, Sections

5.9 and 5.11, as amended, 3 L.PR.A. 1349 to 1351 . A-87

APPENDIX O

Personnel Regulations of the Urban Renewal and

Housing Corporation (CRUV), Section 4.2 ....... A-89

fic

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

ARNALDO JIMENEZ FUENTES,

et al.

Plaintiff

VS.

HON. JAIME TORRES

GAZTAMBIDE,

et al.,

Defendants

JOSE VICENTE VAZQUEZ, et al.,

CIVIL NO. 85-1110 (RLA)

’

Plaintiffs

CIVIL NO. 85-1225 (RLA)

vs.

HON. JAIME TORRES

GAZTAMBIDE

et al.,

Defendants

TRANSCRIPT OF HEARING

BEFORE THE HONORABLE RAYMOND ACOSTA,

DISTRICT JUDGE, held August 6, 1985,

at San Juan, Puerto Rico

OPINION AND ORDER

THE COURT: Good afternoon. I will now proceed to give

my opinion and order in this case.

The Plaintiffs, Jimenez Fuentes and Vicente Vazquez-Pena,

instituted these proceedings for dismissal from their positions as

Regional Directors of the Puerto Rico Housing Development

Corporation, otherwise known as CRUV, at the Caguas and San

Juan II Offices respectively, due to alleged political discrimina-

tion in violation of their Constitutional Rights.

In order to save time and expense, these two actions were

consolidated for the preliminary injuction hearing since most of

the essential evidence in both cases was identical.

After hearing the testimony of the numerous Witnesses pre-

sented by all parties and after careful review of the evidence

‘presented in these proceedings, the Court hereby finds as follows:

1. Plaintiffs were removed from their positions by Defendants

Jaime Torres Gaztambide and Quevedo del Rio, by letters dated

March 20 and March 18, 1985 respectively.

2. The only grounds for the dismissal given in the letter was

that Section 5.10 of the Public Service Personnel Act established

that “the trust employees shall be of free selection and removal.”

3. In November 1984, the PNP, the party in power for the

past 8 years lost the election to the PDP. -

4. The PNP advocates Statehood, whereas the PDP’s politi-

cal philosophy is geard' towards more autonomy under the con-

cept of a commonwealth or as the term is literally translated, a

free and associated state.

5. Defendants, members of the PDP, were appointed by the

incoming party within the first two months of 1985.

6. Plaintiffs are members and active participants of the PNP,

and were appointed to their positions by the past PNP administra-

tion.

At the time of their removal, Jimenez Fuentes salary was

$1,642 per month, and Vazquez Pena’s salary was $1,845 per

month.

' Opinion and Order given from the Bench and transcribed by the Court

Reporter contains a number of typographical errors. It has been —

exactly as handed down by the Court.

Plaintiffs bear a heavy burden in proving their case. Dis-

crimination is a state of mind, and by its very insidiousness is

difficult to establish. It is very seldom that a Defendant will

readily admit to his violation of Constitutional rights or in any

way manifest his discriminatory animus either orally or in writ-

ing.

Because of this situation, Defendants must necessarily rely

exclusively on circumstantial evidence to establish a subjective

condition.

The Court finds that the proximity in time between the

appointment of the Defendants and the dismissal of the Plaintiffs

is indicative of an underlying political motive: Particularly when

there is unrefuted evidence that the Plaintiffs were active PNP

partisans.

Plaintiff Jimenez Fuentes was the Assistant Political Auditor

of the PNP mayor of Juncos, whose function was to assist the

mayor in all that was needed to carry out campaigns.

Plaintiff Vazquez Pena was the PNP Coordinator of the

Electoral Unit and Secretary of the Association of Pro-Statehood

Engineers and had directed the campaign of one “Chito” Ojeda,

as Senator, for the District of Carolina.

Defendant Quevedo, the only Defendant to testify at the

hearing, stated that he did not know the political affiliations of the

Plaintiffs when they were dismissed by him, after admitting under

cross examination that a Regional Director has to be a member of

the PDP. The Court has the choice of believing that either the

Defendant Quevedo does not adhere to his own claim that politi-

cal affiliation is an appropriate requirement for the effective

performance of the public office involved or that he knew of the

Plaintiffs political affiliations. The Court chooses the latter.

Furthermore, it is to be noted that at no time prior to their

removal were Plaintiffs ever apprised of any allegation of wrong

doing or incompetency in the performance of their functions, nor

had they ever been admonished or disciplined for these reasons.

With respect to Defendants power to remove the Plaintiffs at

will, the Defendants made references as stated to Section 5.10 of

the Public Service Personnel Act, the OP 16 which sets forth the

duties and functions of the Regional Director and the personnel

regulations of CRUV.

The Court agrees with Defendants’ argument that in posi-

tions of trust, employees may be removed at will and without

cause. However, the Constitution provides as an exception to this

general rule that the basis for the termination cannot be political

affiliation unless said requirement is necessary for the effective,

performance of the public office involved. Here I am citing for

the record Branty v Finkle, 100 S. Ct, 1287, 1293 (1980); Barnes

v Bosley, 745 F2d 501 and 505; Tanner v McCal!, 625 F2d 1183.

With respect to the Defendants’ claim that the Plaintiff ’s

political affiliation is an appropriate requirement for the effective

performance of their public office, Defendants presented the

testimony of their expert, Dr. Jack Hirsbrunner, who conducted a

study of the organization and functions of the various levels of

CRUV and concluded that political affiliation was indeed an

appropriate criteria to secure the effective performance of a

particular administration’s goals.

The Court, after listening to the testimony and observing the

demeanor of Dr. Hirsbrunner, gives no weight to his conclusion.

In substance, Dr. Hirsbrunner was of the opinion that the ideolog-

ical differences between the PNP, which favors Statehood, and

the PDP, which favors autonomy, gives rise to conflicting

philosophical approaches to the programs and functions of the

Agency. It was his opinion that this philosophical conflict trans-

lates into a, “hindering” or “fostering”, of a particular program

of the administration in power, and that since the office of

Regional Director acts as a pipeline between the clientele, which

of course are the housing applicants, and the Administration or

Agency heads, the Regional Directors should be an advocate of

the program. Hence, he should be a member of the party in

power. Dr. Hirsbrunner gave, as an example of differing

philosophical approaches, the possible preference of an adminis-

iration to the Government taking a more active role in administer-

ing properties or public services, and another Government possi-

bly favoring private industry taking over these functions.

Another example that he cited, was of one Government

favoring the utilization of federal funds while another would

prefer greater utilization of local 936 funds.

Dr. Hirsbrunner, after questioning, failed to convice the

Court that the political affiliation is more appropriate to the

simple expediency of disciplining or removing an employee who

fails to abide by an Executive Order which reflects the program of

ee ee a

the Administration regardless of the employee’s political affilia-

tion.

The Court does agree and give credence to the testimony of

Jorge Guillermety former Associate Director of Public Housing,

who stated that any one with an Engineering, Public Administra-

tion or Social Services Degree can qualify as a Regional Director

and that political affiliation is not a requisite as the function and

perimeters to do the job are clearly and specifically set forth in the

rules and regulations of the Agency.

It would seem therefore, that there is little discretion in-

volved in the position of Regional Director. Hence there would be

very little margin for program interference due to political differ-

ences between the Regional Director and the Agency Heads, who

are primarily responsible for carrying out clearly defined regu-

lations and guidelines in furtherance of the Administration’s pro-

grams and goals.

Any departure therefrom by a particular Director, be it due

to political beliefs or mere incompetence can be readily ascer-

tained and dealt with following the pertinent administrative pro-

_ cedures.

Now, with respect to the wrongdoing and incompetency of

the Plaintiffs, the Defendents presented evidence of the tenants

accounts receivable performance, which will be hereinafter re-

ferred to as Tar for the Caguas and San Juan II Regional Offices

from March 1984 to February 1985 which were headed by the

Plaintiffs.

Also presented by the Defendants was testimony of various

Witnesses testifying concerning the hiring of Plaintiff ’s, Jimenez

Fuentes’ son and daugher, as summer irregular or part-time em-

ployees at the Regional Office and alleged irregularities with

respect to overlapping dates of employment and questioned signa-

tures.

In addition, Defendants presented testimony concerning, or

attempted to present testimony concerning an auto accident in-

volving the Plaintiff Jimenez Fuentes under suspicious circum-

stances.

With respect to Vazquez Pena, the Defendants attempted to

show that he had made improper inquiries of a Mr. Rondon as to

whether applicants for housing were members of the PNP, the

Court gives no weight or credence to this testimony and considers

it to be irrelevant and excludable for the following reasons.

First, Defendants admit that although they had indications of

wrongdoing, the Plaintiffs were removed before they received the

results of any investigation and that indeed there are still ongoing

investigations. In other words, at the time of the Plaintiffs dismis-

sal, the Defendants had no grounds for their removal on the basis

of the wrongdoing that they are now attempting to show at this

preliminary injuction hearing.

Second, the Court gives no weight or credibility to the

testimony of Mr. Paul Carton, the Special Assistant to the Secre-

tary of CRUV. Mr. Carton testified that the TAR, which you will

recall is the tenants accounts receivable performance ratings, the

TAR deficiencies, he testified were “horrible” and that because

of this condition, CRUV was in jeopardy of loosing millions of

dollars of federal subsidies.

However, Mr. Carton admitted, that although he was specif-

ically hired to come up with solutions, and make recom-

mendations to the Secretary for dealing with this problem, his

studies were not yet completed.

Furthermore, he stated, and I quote, “we are going to bring

in a series of consultants to see what they are doing in New York,

to make the problem better”. Mr. Carton concluded that solving

the TAR problem is a, “process which is still unfolding” and that

he was “currently looking at various techniques” for correcting

the situation.

Mr. Carton specifically acknowledged that the problem is

still being studied for presentation of a solution, and that at no

time had he made a suggestion or recommendation to the Secre-

tary, as to either a short or long term solution to remove the

Plaintiffs as Regional Directors.

The Defendants content that under the standard applied in

the Mt. Healthy City School District v Doyle case, and 1 am

going to cite it for the record, 97 S. Ct 568 (1977), that the

Plaintiffs can not prevail in these proceedings because the Defen-

dants would have been dismissed even in the absence of the

alleged protected conduct. In Barnes v Bosley, at 745 F2d at 507,

the Court found the Mt. Healthy standard is appropriate in cases

where the protected conduct is party affiliation and mixed

motives are alleged.

The situation that is before the Court today is quite different,

eee

in that the non-discriminatory reasons alleged for the disrnissal

were not known to the Defendants at the time the termination

took place.

Mt. Healthy presupposes the alternate grounds for the chal-

lenged action were known and considered at the time the decision

at issue was taken. Where pertinent, it reads, “whether the Board

had shown by a preponderance of the evidence that it would have

reached the same decision, even in the absence of the protected

conduct”. Mt. Healthy, 97 S. Ct 576.

This does not imply that information gathered after the

dismissal may then be used to justify uncontitutional conduct, a

posteriori which is what the Defendants attempted to do in these

proceedings.

Based on the foregoing, the Court rejects Defendants al-

leged non-discriminatory justi® cation for the dismissals. The

Court finds that at the time the letters of separation were deli-

vered, the Defendants had no basis for removal of Plaintiffs on

grounds of wrong doing.

In order for Plaintiffs to prevail in their preliminary injuction

request, they must comply with the following elements:

1. That they will suffer irreparable injury if the injuction is

not granted.

2. That such injury outweighs the harm that would befall

Defedants should the injuction be granted.

3. Plaintiffs have shown a likelihood of success on the

merits.

4. That the public interest will not be adversly affected by the

granting of the injuction.

Again, for the record, I am citing Tremblay v Marsh, 750

F2d 3, At 5, (Ist Cir., 1984); Libertarian Party of Indiana v

Packard, 741 F2d, 1981 At 1984, (7th Cir. 1984); Planned Par-

enthood League of Massachusetts v Bellotti, 641 F2d 1006, 1009,

(Ist Cir. 1981).

It is not always easy to discuss each one of these factors

independently of each other, since, and I quote from the Liberta-

rian Party case, “the merits of a dispute often are intertwined

with the other three factors to be considered in the decision to

issue or deny a preliminary injuction™. Libertarian Party 741 F2d

at 985.

There is no controversy in the cases at Bar that Plaintiff's

contitutional rights have been violated, and that such laws, even

for a brief period, constitutes irreparable injury. Again quoted

from Libertarian Party case, 741 F2d at 985.

Defendants have attempted to convice the Court that the

harm to Plaintiffs would not outweigh the harm that would befall

the Defendants if the Court were to grant the preliminary injuc-

tion in light of the various investigations that are ongoing with

respect to the Defendants incompetency and wrongdoing.

The Court finds that protection of the Plaintiffs’ constitu-

tional rights outweighs any harm that could be visited upon the

Defendants.

The reason for this is that, even after reinstatement, the

Defendants are at liberty to institute the appropriate administra-

tive proceedings, should they have adequate non-discriminatory

gounds for the removal of the Plaintiffs herein.

And I should add, to institute immediate appropriate admin-

istrative proceedings.

Based on the findings of descrimination made by the Court

today, we are convinced that the Plaintiffs have met their burden

in establishing their likelihood of success on the merits.

The public interest in the efficient performance of public

functions cannot be equated with allowing a political party total

license to appoint employees of their political leanings to posi-

tions of trust, or a blank license.

There is also a public interest in the protection of the con-

Stitutional rights of government employees, which must be

safeguarded. ,

Upon careful examination of the evidence presented in these

two cases and the equities involved, Plaintiffs’ motions for the

issuance of a preliminary injuction are hereby granted.

Accordingly, it is hereby ordered that, the Defendants, their

successors in office, agents, employees, and servants are ordered

to reinstate the Plaintiff, Jose Vincente Vazquez to his former

position as Regional Director, Puerto Rico Housing and Urban

Development Corporation for the San Juan II Region, and Plain-

tiff Arnaldo Jimenez Fuentes, to his former postion as Regional

Director of the Puerto Rico Housing Developmeni Corporation

for the Caguas Region, at the same salary and with the same

fringe benefits they would be earning and receiving but for their

discharge.

And the Court futher enjoins Defendants, their successors in

office, agents, employees, and any other person acting on behalf

or in concert with the Defendants from discharging, demoting,

transferring, or in any other way affecting Plaintiffs’ employment

rights, based upon political affiliation, pending a hearing and

determination on Plaintiffs’ request for permanent injuction.

The Court Reporter is hereby instructed to forthwith trans-

cibe the Order in full and to file in cases 85-1110 and 85-1225.

REPORTER’ CERTIFICATE

I, CECIL J. ENNETT, Registered Porfessional Reporter by the

National Shorthand Reporter’s Association; and Official Court

Reporter, United States District Court, District of Puerto Rico;

DO HEREBY CERTIFY that the foregoing transcrip is a full,

true and correct record which was taken down by machine shor-

thand by me and thereafter reduced to typewritten form under my

direction;

I FURTHER CERTIFY that I am in no way interested in the

outcome of the case named in said caption.

CECiL J. ENNETT,

RPR.

eee shee any

ma ee ee a

All

APPENDIX B

United States Court of Appeals

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ-FUENTES, ET AL.,

Plaintiffs, Appellees,

HON. JAIME TORRES GAZTAMBIDE ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

{[Hon. Raymond L. Acosta, U. S. District Judge]

Before Campbell, Chief Judge,

Aldrich and Torruella, Circuit Judges.

Marcos A. Ramirez Lavandero for appellants.

Frank Rodriguez-Garcia for appellees.

December 20, 1985

Al2

Aldrich, Senior Circuit Judge. Sir Winston Churchill once

said, “Politics are almost as exciting as war, and quite as danger-

ous.” Remarks, 1920. While the dangers of war are difficult to

contain, the courts, federal and state, have made determined

efforts in the lesser field. E.g., Branti v. Finkel, 445 U.S. 507

(1980); Elrod v Burns , 427 U.S. 347 (1976); Colon v. CRUV, 84

J.T.S. 52 (P.R. 1984); Montaguila v. St. Cyr, 433 A.2d 206 (R.1.

1981); Battaglia v. Union County Welfare Bd., 88 N.J. 48, 438

A.2d 530 (1981). At the same time, if we may advance our own

phrase, politics is the life-blood of the body politic, and too much

constraint could be as dangerous as too little. In the present case,

defendant appeliants claim over-restraint.

In an attempt to set rules for patronage, or what has been

grossly called the spoils system, the legislature of the Common-

wealth of Puerto Rico enacted the Puerto Rico Public Service Act

of 1975, P.R. Laws Ann., tit. 3, §§ 1301-1431, hereafter, Person-

ne] Law. Under this law, civil service positions in Puerto Rico are

drawn into two categories: career employees and confidential

employees. Jd. § 1349. Career employees are selected and pro-

moted solely on the basis of merit; confidential employees “shall

be of free selection and removal.” Jd. § 1350. The position of

regional director in the Urban Renewal and Housing Corporation,

or CRUV (Corporacion de Renovacion Urbana y Vivienda), is

designated a confidential position.

In November, 1984, after eight years of governors of the

Partido Nuevo Progresista (PNP), the Partido Popular Demo-

cratico (PDP) won the governorship, the actual change taking

place on January 2, 1985. After a discharge on January 4, shortly

revoked, on March 20 plaintiff Jose Vicente Vazquez, a PNP

member, was demoted from his position of Regional Director of

the San Juan I District to a career position in the agency. On

March 18, plaintiff Arnaldo Jimenez Fuentes, Regional Director

for Caguas, had been similarly demoted. These actions were the

result of orders by defendant Jaime Torres Gaztambide, the newly

appointed PDP Secretary of the Department of Housing. The

present suit by Jimenez and Vazquez names Gaztambide and

Rolando Quevedo del Rio, Executive Director of CRUV, as

defendants, alleging the demotions violated plaintiffs’ First

Amendment rights, and seeking restoration to their previous

positions. After a twelve day hearing the district court issued a

Al3

preliminary injunction ordering that relief. We denied a stay and

granted an expedited appeal, and now affirm.

The basis of the constitutional claim is that plaintiffs are mem-

bers of the PNP and defendants of the PDP, and, allegedly,

defendants removed plaintiffs for that political reason. Defen-

dants deny this, but assert it would be a protected reason in any

event, and say, further, that there were substantive reasons be-

yond that. The court found against them on ali points.

By this time we need not dwell on the principle that the district

court’s findings of fact must stand unless clearly wrong, or based

upon an error of law. This includes the court’s present necessary

findings of a likelihood that plaintiffs will succeed on the merits,

that they would, meanwhile, suffer irreparable harm, superior to

that suffered by defendants, and that an injunction would be in

the public interest. Planned Parenthood League of Mass. Vv.

Bellotti, 641 F.2d 1006, 1009 (Ist Cir. 1981). On this basis we

need spend no time on defendants’ attempt to criticize the court’s

finding that the demotions were politically motivated. There were

eleven regional directors, all PNPs, and, in one way or another,

defendants got rid of all eleven, without apparent reference to

personal performance. Defendants’ asserted ignorance of party

affiliation is incredible on its face.

As to their second point, defendants’ reliance on the

classifications in the Personnel Law is misplaced. However mate-

rial that statute may be in determining whether an employee has a

property right in his job from the standpoint of due process

removal and actions for discrimination, cf. Bishop v. Wood, 426

U.S. 341, 345 (1976); Perry v. Sindermann, 408 U.S. 593, 601

(1972); Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the

First Amendment right recognized in Elrod extends to all that fit

it substantively; it cannot be legislated away. Indeed, the Person-

nel Law objectives, embracing all “confidential” employees,

seem addressed to the true meaning of the word — employees

who must be trusted to respect all confidences to which they

might be exposed. See, for example, in section 1350’s compila-

tion, subsection “(3) Assistant heads of agencies and their per-

sonal secretaries and drivers.” However important it is that em-

ployees keep confidences, general trustworthiness is not to be

measured by political affiliation. To continue the war analogy, our

side versus the enemy, would be quite incompatible with First

Al4

Amendment freedoms. Branti’s reformulation of the Elrod

standard, whether political affiliation is “an appropriate require-

ment for... effective performance of the public office involved,”

Branti, ante, 445 U.S. at 518, recognized that labels like “‘confi-

dential” or “policymaking” do not alone render political affilia-

tion an appropirate prerequisite for a particular job.

We realize, as we believe did the district court, that a court

should go slow before granting, by an interlocutory order, the

affirmative relief ultimately requested. And it is, of course.

understandable, not only that political officeholders wish to be

surrou ded by kindred thinkers, but also, to return to our original

observation, that there must be some prospective rewards for

political activities, or the life-blood will dry up. It is difficult not

to share in the views expressed by Justice Powell, dissenting in

Elrod. which we have crudely reflected, ante, in speaking of

politics as the life-blood of the body politic.! However, it is also

impossible to dismiss the plurality opinion views, not only as to

personal rights, but as to the “inefficiency” of “wholesale”

turnovers, 427 U.S. at 364 & 367; see, also, Colon v. CRUV, 84

J.T.S. 52 (P.R. 1984), every time there is a shift in the majority of

the voters. It is worth noting that in Colon v. Cruv the Supreme

Court of Puerto Rico made the same adverse finding with regard

to these very offices as did the district court. While defendants’

disappointment is understandable, and their arguments as to the

political importance of plaintiffs’ positions not without merit, we

cannot say that the district court was clearly wrong in its tentative

conclusions, or misapplied the standard.

We will add two comments. Defendants say, suppose our party

platform had included a promise to reorganize this department

and make drastic changes; how could we have done it? The short

answer is that that is not this case. When the voters can be said to

have asked for identified changes, they may well be addressable.

' It would be presumptuous to attempt to summarize Justice Powell's

dissent (concurred in by the Chief Justice, and Justice Rehnquist), 427 U.S.

ante, at 376-389, but we quote the following. “Patronage practices broadened

the base of political participation by providing incentive to take part in the

process thereby increasing the volume of political discourse in society. Pa-

tronage also strengthened parties, and hence encouraged the development of

institutional responsibility to the electorate on a permanent basis.” (379).

Al5

There must be limits, however, even to this. Changes of person-

nel simply on party lines may be what the majority voters asked

for, but that desideratum is impermissibie.

Second, possibly the majority of voters might want a general

change in party affiliation because of confirmed habits of the

current office-holders to show improper preferences, with the aid

of their powers, to their own party members. Cynically, we might

ask whether this reason, although properly prompted, may not

contain the equal thought that now it will be our turn; in other

words, not rectification, but the spoils system all over again.

Defendants must use less draconian methods to cure improp-

rieties. And, of course, as the district court properly noted, there

is nothing in the present doctrine forbidding a proper removal.?

Meanwhile, it could be thought that the very fact that plaintiffs

were under scrutiny by political opposites would have a salutary

effect. True, they are high level employees, but defendants have

two above them. This is a problem to which there is no perfect

solution. We cannot quarrel with the district court’s provisional

resolution. Cf. Tomczak v. City of Chicago, 765 F.2d 633, 639

(7th Cir. 1983).

The final matter calling for our comment is defendants’ so-

called Mr. Healthy defense.* In Mr. Healthy, the Court recog-

nized a defendant’s right to show that, improper motive not-

withstanding, it would have discharged the employee in any

event. Indeed, if the employment relationship 1s such that no

cause is needed for discharge, the employment can be terminated

“for no reason whatever,” so long as it is not an illicit reason. Mr.

Healthy, 429 U.S. 274, at 283 (First Amendment); cf. NLRB v.

Eastern Smelting & Refining Corp., 598 F.2d 666, 669 (Ist Cir.

1979) (unfair labor practice.). There is, of course, a question of

proof. See, e.g.., Dance v. Ripley , No. 85-1237 (1st Cir. 10/7/85).

Defendants’ claim here fell in tvo parts. First, they argue that

? We take issue. however, with the court's suggestion that plaintiffs may be

dismissed for cause only after an administrative hearing. While this course

may effectively insulate officials from charges of political discrimination,

nothing in any of the cases — nor, for that matter, the Personnel Law, as we

read it — mandates it. See post.

3M. Healthy City School District v. Doyle, 429 U.S. 274 (1977).

Al6

they already knew enough grounds for dissatisfaction to justify

demotion on the merits. The court was fully warranted in its

interim view that these claimed grounds were not the true motiva-

tion for demotion. The Mr. Healthy test is not whether a sufficient

reason existed, but whether, in fact, it was the reason truly

espoused. Second, defendants claim that there were even stronger

reasons, although not come to light at the time of the demotions.

The court held that these could not be considered because, obvi-

ously, they could not have been relied on. Inasmuch as we are

dealing with a continuing injuction, this was error. See

Smallwood v. United Airlines, Inc., 728 F.2d 614, 623 (4th Cir.

1984): Gibson v. Mohawk Rubber Co., 695 F.2d 1092, 1097 (8th

Cir. 1982); Murnane v. American Airlines, Inc., 482 F. Supp.

135, 148 (D.D.C. 1979), aff'd, 667 F.2d 98 (D.C.Cir. 1981), cert.

denied, 456 U.S. 915 (1982). It is irrelevant that these were age

discrimination cases; the principle is the same. We remind the

court of Mr. Healthy’s caveat, that a party is not to be put in a

better position as a result of protected conduct than he would

otherwise have been in. 429 U.S. at 285, 286. That is not

presently this case, but the court erred in saying it would not

consider matters coming to defendants’ attention subsequent to

the demotion.

At this time and on this record, the court’s refusal to consider

these matters was harmless error. However, it is to be borne in

mind that plaintiffs, under the Puerto Rican statute, have no

property interest in their position, and may be discharged without

cause. Laureano v. Garcia-Caraballo, 731 F.2d 101 (ist Cir.

1984). Accordingly, any time that defendants can show they are

demoting for other than an illicit reason, no matter what it may

be, that will be the end. This principle is relevant both wich

respect to the continuance of the injunction and to damages.

We have considered defendants’ other complaints, and find

none worthy of discussion. That there could be found to be

irreparable harm, and due public interest, see Elrod, ante, 427

U.S. at 373.

Affirmed.

Al7

(Concurrence follows)

TORRUELLA, Circuit Judge (Concurring). Although I

agree with the result reached by my brethren, and with much of

their reasoning, I respectfully disassociate myself from those

parts of this opinion which constitute obiter dicta and are advi-

sory in nature. Paschall v. Christee-Stewart, Inc., 414 U.S. 100

(1973), reh’g denied, 414 U.S. 1138 (1973); Stephens, Inc. v.

United States , 464 F.2d 53 (8th Cir. 1972) cert. denied, 409 U.S.

1118 (1972). Particularly when dealing with what the majority, in

quoting Churchill, has aptly described as something “quite as

dangerous” as war, I am of the opinion that Article II] courts

should be especially fastidious in not supplying ammunition for

future use by any side. It would appear that parties as ably

represented as were those in this litigation should be able to

navigate the well-charted waters of § 1983 litigation without

unnecessary prompting on our part.

Al9

APPENDIX C

United States Court of Appeals

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, Appellees,

JAIME TORRES GAZTAMBIDE, ET AL.,

Defendants, Appellants

JUDGMENT

Entered: December 20, 1985

This cause came on to be heard on appeal from the United

States District Court for the District of Puerto Rico, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, adjudged

and decreed as follows: The order of the district court is affirmed.

By the Court,

Francis P. Scigliano

Clerk.

A2]l

APPENDIX D

United States Court of Appeals

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, Appellees,

HON. JAIME TORRES GAZTAMBIDE, ET AL.,

Defendants, Appellants.

MEMORANDUM ON PETITION FOR REHEARING

Campbell, Chief Judge,

Aldrich and Torruella, Circuit Judges

Marcos A. Ramirez-Lavandero for appellants.

Frank Rodriguez-Garcia for appellees.

February 6, 1986

A22

Per Curiam. In accordance with a growing, and all too

frequent, practice, disappointed appellants seek rehearing with

allegations founded more on the fact that they lost than on the

content of our opinion. Basically, we have “conflict[ed] with

precedents already established,” and have not given adequate

“consideration to the District Court’s application of an improper

legal standard.”' Stopping here, we held that the district court

had applied a proper standard. Nor should it be difficult to see

that the cases we failed to cite were pre-Branti v. Finkel, 445

U.S. 507 (1980), and to note that we referred, in so many words.

to “Branti’s reformulation of the Elrod standard.” (Emphasis

supplied. )

Next, defendants protest that they “did not rely on the

classifications of the Personnel Law.” Seemingly they forget that

a whole section of their Memoranduni of Law has an early

sentence setting the tone of the several pages following. “Here.

appellants’ actions must be understood in the context of the

Puerto Rico Public Service Personnel Act of 1975....” Defen-

dants next assert that under both Branti and Elrod there is no First

Amendment protection for positions — employees — having

“meaningful input into government policymaking or ... access to

confidential information.’’ This is a substantial over-

simplification of Branti, which qualified those terms by adding a

requirement of the appropriateness, viz., an affirmative need. of

party affiliation for proper performance of the job. In respect to

such need the petition, like the initial brief, is totally silent. We

list all given duties of plaintiff Jimenez-Fuentes’ position in an

appendix, the political nature of which a court might well feel to

be superficial (by stipulation of the parties, these duties are

identical to the duties performed by plainciff Vicente \’azquez).

Finally, the petition quite misstates what we said in regard to

M1. Healthy City School District v. Doyle, 429 U.S. 274 (1977).

The petition is denied.

' We have also, incidentally. treated this as “another run of the mill

preliminary injunction case; evidenced. apparently. by the fact that we cited

only one case to supply the ground rules.

A23

Appendix

COMMONWEALTH OF PUERTO RICO

CENTRAL OFFICE FOR PERSONNEL ADMINISTRATION

BOX 8476, FERNANDEZ JUNCOS STATION

SANTURCE, P.R. 00910

JOB DESCRIPTION

1. Department or Agency: Housing Department

2. Bureau, division and section: Public Housing Adm.

Caguas Region

* * *

4. First Surname: JIMENEZ

Second Surname: FUENTES

Name: ARNALDO

6. Title of Classification of Position: Regional Director

* * *

7. Detail the work you perform in the order of importance of the

different tasks, starting with the most important.... Use your own

words and make a description of your duties so clearly that

persons not familiriazed [sic] with your job would understand

exactly what [it] is that you do....

1. Directs, plans and supervises the operational and administra-

tive activities of the Region, such as: Accounting, Personnel

and Occupation, Maintenance, Modernization, Community

Labor, Management and Section 8.

2. Reviews and signs the reports submitted to the Central Office,

HUD and other related agencies.

10.

aE:

13.

A24

. See to it that the norms and regulations are complied with in

accordance to the philosophy of the Public Housing Adminis-

tration and the HUD Federal Agency.

Arranges periodic meetings with supervisory personnel to

counsel and inform as to changes in norms and regulations

and/or new work guidelinfe]s and other matters.

. Reviews, approves and signs the reports on rent changes.

which are sent to the Federal Agency, Central Office of the

Housing Department and other agencies; reports on Account-

ing. purchase orders, disbursements, functional budgets of the

Region and preliminary budget of maintenance works and

others.

Attends, representing the Agency, to meetings with other

government officers or civic leaders from the community in

order to discuss and coordinate the implementation of Social

Services, economics} health and other type[s} of services

offered to public housing residents and programs of the Hous-

ing Department.

. Drafts reports related to the work performed.

. Drafts correspondence for the signature of the Associate Di-

rector and/or CRUV Executive Director.

Supervises and evaluates the Supervisors of the different sec-

tions attached to the Region.

Makes recommendations on personnel recruitment, dismis-

sals, promotions, salary increases and other relations with the

Region’s employees.

Recruits necessary irregular personnel at the Region.

. Receives and hears residents or general public in problematic

cases which have not been solved at a lower level.

Performs periodic visits to the housing projects at the Re-

gion.

14.

15.

16.

17.

18.

19.

20.

A25

Attends periodic meetings with the Associate Director, to

discuss problems related to the operations of the Region.

Offers recommendations to the Executive Director to im-

prove the services rendered by the Program.

Arranges meetings with residents and/or organized groups in

the community for the coordination of social activities.

Plans and organizes training for the Region’s employees in

coordination with the Training Committee.

Receives telephone calls to give or receive information re-

lated to the Region’s operations.

Is responsible for the preparation and control of the

functional budget of the Region.

Performs any task as assigned.

oe Laie

roe we

tne +

ee a

is Naas |

ae ce

r te i. a > Sein,

ae ;

oe Ce als a) ee oa

}

’

“aa

i. =

bas

ce *

APPENDIX E

CLERK’S OFFICE

U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 85-1655 Fuentes v. Hon. Gaztambide

(Date) 2-14-86

Mandate herein issued today.

Francis P. Scigliano, Clerk.

A29

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, appellees,

HON. JAIME TORRES GAZTAMBIDE, ET AL.,

Defendants, appellants.

Before

Campbell, Chief Judge,

Coffin, Bownes, Breyer and Torruella.

Circuit Judges.

ORDER OF COURT

Entered: February 19, 1986

The appellants Honorable Jaime Torres Gaztambide, et al.,

petition this Court to rehear en banc the above-captioned case.

We hereby grant the petition. The panel opinion is withdrawn, the

judgment of this Court is vacated, and mandate is recalled from

the District Court. Argument will be heard during the May, 1986,

session.

The Court will consider all previous briefs filed with the panel.

The parties may in addition file supplemental briefs no later than

March 19, 1986.

By the Court,

Francis P. Scigliano

Clerk.

A30

A3]

APPENDIX G

United States Court of Appeals

For the First Circuit

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, Appellees,

HONORABLE JAIME TORRES GAZTAMBIDE, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

{[Hon. Raymond L. Acosta, U. S. District Judge}

Before

Campbell, Chief Judge,

Aldrich, Coffin, Bownes, Breyer and Torruella,

Circuit Judges

September 19, 1986

OPINION EN BANC

A32

COFFIN, Circuit Judge. Plaintiffs-appellees, Arnaldo

Jimenez Fuentes and Jose Vicente Vazquez, claim that they were

transferred from their government positions for political reasons

in violation of the first and fourteenth amendments. After a

lengthy hearing, the United States District Court for the District

of Puerto Rico issued a preliminary injunction, ordering their

reinstatement. A panel of this court denied a stay, granted an

expedited appeal, and affirmed the order of the district court.

After the panel denied rehearing, this court vacated the panel’s

opinion, setting the case for rehearing en banc In light of full

briefing and oral argument, and a review of the district court

hearing and the relevant case law, we reverse the issuance of a

preliminary injunction. '

Plaintiffs Jimenez Fuentes and Vicente Vazquez are members

and active participants of the Partido Nuevo Progresista (PNP),

the ruling party in Puerto Rico from 1977 to 1985. They were two

of the eleven Regional Directors of the Puerto Rico Urban De-

velopment and Housing Corporation (CRU V —- Corporacion de

Renovacion Urbana y Vivienda). CRUV is a public corporation.

17 L.P.R.A. §§ 21-25 (1984), attached to the Department of

Housing of the Commonwealth of Puerto Rico, 3 L.P.R.A,

§441(e) (1982). As Regional Directors, plaintiffs worked in the

Program of Public Housing, the principal division of CRUV.

In November 1984, the Partido Popular Democratico (PPD)

defeated the PNP in the gubernatorial election, and assumed

power in January 1985. Defendants-appellants, Jaime Torres Gaz-

tambide (Secretary of the Department of Housing of Puerto Rico)

and Quevedo del Rio (Executive Director of CRUV), both PPD

members, were appointed within two months. In March 1985,

they transferred plaintiffs from the positions of Regional Director

to the plaintiffs’ previously-held positions at CRU V

' In a companion case, DeChoudens v. Government Development Bank of

Puerto Rico, No. 86-1059, slip op. (Ist Cir. Sept. 18, 1986), we affirm a

district court’s issuance of a preliminary injunction reinstating the Vice

President of the Finance Area in the Government Development Bank

A33

Il.

At the outset we note the burden plaintiffs faced in order to

gain a preliminary injunction:

“In the First Circuit, a plaintiff must satisfy four criteria in

order to be entitled to a preliminary injunction. The Court

must find: (1) that plaintiff will suffer irreparable injury if

the injunction is not granted; (2) that such injury outweighs

any harm which granting injunctive relief would inflict on

the defendant; (3) that plaintiff has exhibited a likelihood of

success on the merits, and (4) that the public interest wil! not

be adversely affected by the granting of the injunction.”

Planned Parenthood League of Massachusetts v. Bellotti, 641

F.2d 1006, 1009 (Ist Cir. 1981) (quoting Women’s Community

Health Center, Inc. v. Cohen, 477 F. Supp. 542, 544 (D. Me.

1979) (citations omitted)) (emphasis added).

For purposes of appellate review, the issue is whether “the

issuance of the injunction, in light of the applicable standard,

constituted an abuse of discretion.” National Tank Truck Car-

riers, Inc. v. Burke, 608 F.2d 819, 823 (ist Cir. 1979) (quoting

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)). The constitu-

tionality of the demotions was not before the district court and is

not presently before us because there has been no trial on the

merits. “The only question properly before the Court is whether

or not a preliminary injunction should have been issued to

reinstate plaintiffs to their positions as Regional Directors. See

Thornburgh v. American College of Obstetricians and

Gynecologists, 54 U.S.L.W. 4618, 4636 (U.S. June 11, 1986)

(O’Connor, J. dissenting). We emphasize that because we hear

this matter on appeal from a grant of a preliminary injunction, our

“conclusions” and “holdings” as to the merits of the issue

presented are to be understood as statements as to probable

outcomes. Planned Parenthood, 641 F.2d at 1009. “We eliminate

repeated reference to this fact at each relevant juncture of this

lengthy opinion for purposes of brevity and simplicity.” /d.

Oe ..Qr

A34

Ill.

Defendants claim that the district court abused its discretion

in finding that the plaintiffs had shown a likelihood of success on

the merits. To support this argument, they challenge three inde-

pendent findings by the district court: one, that plaintiffs were

transferred for political reasons; two, that the positions of Re-

gional Directors were not positions for which political affiliation

was appropriate; and three, that plaintiffs would not have been

transferred but for their political affiliation. Defendants correctly

point out that if any of the findings were an abuse of discretion,

we must reverse the issuance of the preliminary injunction.

We cannot say that the district court abused its discretion in

finding that the plaintiffs were transferred for political reasons.

See Rosaly v. Ignacio, 593 F.2d 145, 149 (1st Cir. 1979) (whether

protected conduct was a substantial or motivating factor in deci-

sion to discharge plaintiff). The court found that the proximity in

time between the defendants’ appointment and the plaintiffs’

transfer indicated an underlying political motive, especially in

light of the unrefuted evidence that plaintiffs were active PNP

members.? Although defendant Quevedo del Rio testified that he

did not know the plaintiffs’ political affiliation when he dismissed

them, the district court did not believe this statement, in part

because of Quevedo’s admission that a Regional Director, to be

effective, must be a member of the PPD. In response to the

defendants’ assertion that plaintiffs were transferred because of

their incompetency, the district court found that at no time prior

to their removal were plaintiffs ever apprised of any such allega-

tion. Additionally, plaintiffs had never been admonished or disci-

plined for their work. whether or not we would have reached the

same conclusion as to this issue, we cannot say that the district

court abused its discretion.

? Jimenez Fuentes served as the political auditor for the PNP mayor of

Juncos, assisting the mayor generally in his campaign. Vicente Vazquez was

the PNP Coordinator of the Electoral Unit and Secretary of the Association of

Pro-Statehood Engineers, as well as the campaign director for a Common-

wealth Senator, Chito Ojeda.

A35

We now address the dispositive issue — whether political

affiliation. is an. apnronriale requirement. far. the nasition.of CRILV.

Regional Director.

l. Survey of the Authorities

In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court

held that public employees who alleged they were discharged

because of their political affiliation stated a claim for violation of

their first and fourteenth amendment rights.* Writing for a plural-

ity, Justice Brennan determined that a dismissal based on an

employee's failure to support a political party clearly infringes

First Amendment freedoms of belief and association. Elrod, 427

U.S. at 359-60. The conditioning of public employment on pollit-

ical affiliation could survive constitutional challenge only if it

furthered a vital governmental interest* by a means least restric-

tive of first amendment freedoms. Jd. at 362-63. The plurality

found that a valid interest was to ensure that “representative

government not be undercut by tactics obstructing the implemen-

tation of policies of the new administration, policies presumably

sanctioned by the electorate.” /d. at 367. But a patronage system

involving the wholesale dismissal of public employees for parti-

san reasons, applied without regard to an employee's respon-

sibilities, was not the least restrictive means of serving that

interest. The plurality thus concluded that “([lJimiting patronage

dismissals to policymaking positions is sufficient to achieve this

governmental end.” /d. at 366.

Apart from noting that it is not always easy to determine

when a particular position is policymaking, id. at 367, the plural-

ity opinion provides little guidance for lower courts because it did

not apply the new legal standard to the particular positions in

* Plaintiffs in Elrod were employees of the Cook County Sheriff's Office,

including the chief deputy of the process division, the bailiff, and a process

server.

* The plurality cautioned that “care must be taken not to confuse the

interests of partisan organizations with governmental interests,” 427 U.S. at

362, to which it added, “[o]nly the latter will suffice,” id.

A36

question. It did, however, suggest that employees who act as

advisers, who formulate plans for implementing broad goals, or

whose responsibilities are either not well-defined or of broad

scope are more likely to function as policymakers. 427 U.S. at

367-68.

Justice Stewart's concurring opinion in Elrod, necessary for

the 5-3 decision,* narrowed the scope of the plurality ’s protection

formulation. His opinion concludes that confidential, as well as

policymaking, employees can be discharged because of their

political beliefs. See id. at 375.

Subsequently, in Branti v. Finkel, 445 U.S. 507 (1980), the

Court, with Justice Stevens writing for a majority, departed from

the policymaking and confidential labels espoused in Elrod. It

first recognized that the labels were underinclusive, because “a

position may be appropriately considered political even though it

is neither confidential nor policymaking in character.” /d. at 518.°

More importantly, the Court found that the labels were overinclu-

sive, because party affiliation is not a relevant consideration for

all policymaking or confidential positions. Jd. The Court distin-

guished between policymaking positions related to “partisan

political interests [or concerns],” id. at 519, which would be

vulnerable to discharge, and positions having no bearing on such

concerns, which would be protected by the First Amendment.’

As an example of the latter, the Court discussed the position of a

State university football coach, which is policymaking, but for

‘ The concurring opinion was joined by Justice Blackmun.

judge, where state election laws require that precincts be supervised by two

judges of different parties. /d.

” Although Branti’s requirement that a position relate to “partisan” con-

cerns at first seems at odds with the use of that term in Elrod, the two are

consistent. The plurality opinion in E/rod states that political firing can only

be justified by governmental interests, not the interests of partisan organiza-

tions. The Court in Branti reaffirms that conclusion, but, in finding Elrod’s

policymaking and confidential labels overinclusive, determined that the posi-

tions must relate to “partisan political concerns.” Thus, Elrod and Branti hold

that political firing is consitutional when it serves the interests of the govern-

ment, not a party organization; it serves a governmental interest when used for

policymakers or confidential employees whose work involves issues where

there is room for political disagreement on goals or their implementation.

A37

which it cannot seriously be argued that “Republicans make

better coaches than Democrats...no matter which party” controls

state government. /d. at 518.

Branti thus frames the “ultimate question” as “whether the

hiring authority can demonstrate that party affiliation is an ap-

propriate requirement for the effective performance of the public

office involved.” 445 U.S. at 518. That an employee is in a

policy-making or confidential position® remains relevant to the

ultimate inquiry, but it is no longer dispositive. See Meeks v.

Grimes, 779 F.2d 417, 420 (7th Cir. 1985). After making these

observations, the Court applied the new legal standard to the

position in question. It determined that the functions of an assis-

tant public defender, though policymaking, related to “the needs

of individual clients and not to any partisan political interests.”

445 U.S. at 519. Likewise, although public defenders shared

confidential information arising out of their various attorney-

client relationships, the Court found that such confidentiality did

not have any bearing on “partisan political concerns.” /d.

To the skeletal teachings of Elrod and Branti have been added

a considerable body of case law from circuit courts of appeal and

district courts. This seems a helpful corpus because of the variety

of governmental positions considered, the additional inquiries

made (consistent with the objective charted by the Court), and the

8 In addition to policymaking and confidential positions, the Branti Court

added the position of a spokesperson:

“[T]he Governor of a State may appropriately believe that the official

duties of various assistants who help him write speeches, explain his

views to the press, or communicate with the legislature cannot be

performed effectively unless those persons share his political beliefs

and party commitments.” 445 U.S. at 518.

Consistent with this statement, the Third Circuit in Brown v. Trench, 787 F.2d

167 (3d Cir. 1986), analyzed the propriety of firing, for political reasons, an

employee responsible for writing press releases, speeches, communicating

with legislators, and presenting the views of the county commissioners to the

press and public on a daily basis. Although some of the employee's duties

were clerical, and her writings were based on information from other depart-

ments and were never released until reviewed both by her supervisor and the

Commissioners, the court found political affiliation to be appropriate because

of the employee's role as a spokesperson. 787 F.2d at 170.

A38

overall coherence and consistency of these lower court decisions.

We accordingly report our survey of this body of law.

The courts have found employees in the following positions

to be subject to removal based on their political affiliation: Assis-

tant Director of Public Information for county, see Brown v.

Trench, 787 F.2d 167 (3d Cir. 1986); First Deputy Commissioner

of the Department of Water, see Tomczak v. City of Chicago, 765

F.2d 633 (7th Cir. 1985); Superintendent of Employment for

Chicago Park District, see Shakman v. Democratic Organization

of Cook County , 722 F.2d 1307 (7th Cir. 1983); assistant district

attorney, see Livas v. Petka, 711 F.2d 798 (7th Cir. 1983): Mumi-

mau V. Ranck, 687 F.2d 9 (3d Cir. 1982) (per curiam); fee agent.

see Sweeney v. Bond, 669 F.2d 542 (8th Cir. 1982); city solicitor

and assistant solicitor, see Ness v. Marshall , 660 F.2d 517 (3d Cir.

1981); Senior Citizens’ Coordinator, see Nekolny v. Painter, 653

F.2d 1164 (7th cir. 1981); Deputy Parks Commissioner, see Ecker

v. Cohalan, 542 F. Supp. 896 (E.D.N.Y. 1982); state director of

the Farmers Home Administration, see Committee to Protect the

First Amendment Rights of Employees of the Department of

Agriculture v. Bergland, 626 F.2d 875 (D.C. Cir. 1979) (pre-

Branti); Brunton v. United States, 518 F. Supp. 223 (S.D. Ohio

1981).

Employees in the following positions were found not subject

to dismissal under Elrod and Branti: city court bailiffs, see Meeks

v. Grimes, 779 F.2d 417 (7th Cir. 1985) (remanding for further

findings): road-graders, see Horton v. Taylor, 767 F.2d 471 (8th

Cir. 1985); bookkeeper, see Grossart v. Dinaso, 758 F.2d 1221

(7th Cir. 1985); deputy court clerks, see Barnes v. Bosley, 745

F.2d 501 (8th Cir. 1984); deputy sheriff, see Jones v. Dodson, 727

F.2d 1329 (4th Cir. 1984); Barrett v. Thomas , 649 F.2d 1193 (Sth

Cir. 1981); supervisor of county branch of the Auditor's office.

see DeLaCruz v. Pruitt, 590 F. Supp. 1296 (N.D. Ind. 1984}, city

clerk, see Visser v. Magnarelli, 530 F. Supp. 1165 (N.D.N-Y.

1982).

A39

2. The Guidelines of Analysis

From this review of the case law we draw the following

propositions. The fundamental one, supporting the limited

exemption from First Amendment protection against

politically-motivated discharge, is that representative government

needs a certain amount of leeway for partisan selection of agents

in order to work. These agents may be policymakers, confidential

employees, or others for whom party affiliation is an equally

“appropriate” requirement. Appropriateness is, we think. a

corollary to our system of determining the direction of gov-

ernmental entities by the popular election of top office holders

who have taken or are considered to have taken positions on one

or more issues during a campaign. In order for the new adminis-

tration to be given an opportunity to fulfill expectations, it must

have available and also appear to have available significant

facilitators of policy, people who have the personal and partisan

loyalty, initiative, and enthusiasm that can make the difference

between the acclaimed success of a government agency or pro-

gram and its failure or, more typically, its lackluster performance.

The presence of such persons advances the goals of representative

government; their absence, in E/rod’s term, “undercut[s]” such

government. 427 U.S. at 367.

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. But as courts have

addressed the task, they have shed light on useful approaches. A

threshold inquiry, which derives from Branti, involves examining

whether the position at issue, no matter how policy-influencing

or confidential it may be, relates to “partisan political interests . .

. . [or] concerns.” 445 U.S. at 519. 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?

If this 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

A40

communicator, or some other office holder whose function is

such that party affiliation is an equally appropriate requirement.

We would note that in conducting this inquiry, courts focus on the

powers inherent in a given office, as opposed to the functions

performed by a particular occupant of that office. Tomczak, 765

F.2d at 640; Ness, 660 F.2d at 522; Alfaro de Quevedo v. De Jesus

Schuck, 556 F.2d 591, 593 n.4 (Ist Cir. 1977). “The relevant

inquiry is to the function of the public office in question and not

the actual past duties of the particular employee involved.”

Brown, 787 F.2d at 168. “Thus, if an officeholder performs fewer

or less important functions than usually attend his position, he

may still be exempt from the prohibition against political termina-

tions if his position inherently encompasses tasks that make his

political affiliation an appropriate requirement for effective per-

formance.” Tomczak, 765 F.2d at 641.

With this perspective in mind, a court’s function, it seems to

us, is to do what courts are often called upon to do — to weigh all

relevant factors and make a common’ sense judgment in light of

the fundamental purpose to be served. The analogies that come to

mine are the following determinations: whether an employee is a

supervisor and therefore not a proper member of a bargaining

unit, see Fall River Savings Bank v. NLRB, 649 F.2d SO (ist Cir.

1981); whether an individual is an independent contractor or an

agent, see Penthouse International, Ltd. v. Barnes, No. 85-6023.

slip op. (9th Cir. June 24, 1986); and whether, in a suit under the

Federal Torts Claims Act, an official performs discretionary or

ministerial duties, see Ricci v. Key Bancshares of Maine, Inc.,

768 F.2d 456 (Ist Cir. 1985). In determining whether a particular

position is policymaking, we are guided by Judge Weinstein’s

catalogue of relevant factors:

“Whether any particular non-elective position in govern-

ment serves this function of responding relatively directly to

the voters requires some practical sense for the political-

governmental system in operation. Among the indicia that

locate a job along the spectrum between policymaker and

clerk are: relative pay, technical competence, power to con-

trol others, authority to speak in the name of policymakers,

A4l

public perception, influence on programs, contact with

elected officials and responsiveness to partisan politics and

political leaders.”

Ecker v. Cohalan, 542 F. Supp. 896, 901 (E.D.N.Y. 1982). To

this we would add the factor of “responsibilities that are not well

defined or are of broad scope.” 427 U.S. at 368.

S Analysis of the Position of Regional Director of CRUV

Our first inquiry, then, is whether the position relates to

partisan political interests or concerns. At this stage of the pro-

ceedings. we conclude that it does. The Regional Director is an

employee of CRUV, one of several divisions that carry out the

policies of the Department of Housing. CRUV’s objective is to

improve the living conditions of low and middle income families

in urban areas. Among other goals, it attempts to reduce in-

adequate housing, meet the demand for new housing, encourage

private industry's participation in the provision of housing, im-

prove urban communities that lack adequate ‘acilities, and pro-

mote the community's participation in the housing area. Its cus-

tomers include almost 300,000 families. There are several areas

within CRUV, the principal division being the Program of Public

Housing, which employs 3,300 persons in eleven regional offices

throughout Puerto Rico, approximately 90% of all CRUV em-

ployees.

Although CRUV’s objective :s to assist in the provision of

housing to a// low and middle income urban residents regardless

of political persuasion, the subject-matter of the division’s work

is still of a political nature in the context of the Court’s opinion in

Branti. We think this point is well-illustrated by Tomczak v. City

of Chicago, 765 F.2d 633 (7th Cir. 1985), where the Seventh

Circuit reversed the district court’s judgment that the plaintiff, the

First Deputy Commissioner of the Department of Water, was

protected from partisan termination. The district court had found

that the plaintiff's “only area of decisionmaking authority, while

broad within that area, related solely to the mundane decisions

A42

concerning the repair and rehabilitation of [Chicago's] water

systems.” /d. at 641. Finding that the goal of the Water Depart-

ment was to provide service to all residents without regard to

politics, the district court concluded that political affiliation was

not an appropriate requirement for the position of First Deputy

Commissioner. /d.

The Seventh Circuit disagreed, characterizing the district

court’s analysis as “an unduly myopic view of the role of politics

in the seemingly apolitical context of universal provision of

services.” /d. The court stated that the “primary function of any

local governmental entity is the provision of services” and that

“[fejlections often turn on the success or failure of the incumbent

to provide these services.” Jd. Even though plaintiff's position

concerned the provision of water to a// citizens, the court found

that his responsibility in that position made political affiliation an

appropriate requirement.

Similarly, the provision of housing to low and middle income

city residents is a vital political issue, at least as important to

partisan program goals as the provision of water discussed in

Tomczak .° A specific illustration of the link between public hous-

ing and political philosophies was provided at the hearing by

defendants’ expert witness, Dr. Jack Hirsbrunner, who conducted

a study of the CRUV and concluded that political affiliation was

an appropriate criterion for the position of Regional Director. He

testified that the ideological differences between the PNP, which

* We are aware that the Puerto Rico Supreme Court, in Colon v. CRUV , 84

J.T.S. 52 (P.R. 1984), decided that the position of District Manager (similar to

Regional Director) at CRU V was not one for which political affiliation was an

appropriate requirement. It seems to have based its decision on the fact that

the provision of housing was an apolitical task. The Court stated that it did not

believe the efficient discharge of the duties of a Regional Director of a public

housing program required a “given loyalty to the ideological axioms of a

political party. Such a preference is not necessarily a valid criteria [sic] for

being either the person entrusted with implementing that social program's

policies, or the recipient of such benefits.” Jd. at 19.

We respectfully disagree. We do not frame the inquiry in terms of whether

a position requires loyalty with a party's “ideological axioms,” but instead,

whether the position related to partisan political interests and concerns. As we

explain in this section of the opinion, we find the threshold inquiry satisfied in

this case.

a tla

A43

favors statehood for Puerto Rico, and the PPD, which favors

autonomy, give rise to conflicting approaches to the programs and

functions of CRUV. An ideological conflict, he believed, would

hinder an administration’s program. For example, one party

favors the government taking an active role in administering

properties while the other prefers that private industry assume

these functions; additionally, he stated that one party desires the

utilization of federal funds, while the other supports the use of

local funds.

We therfore hold that, at this juncture at least, the position

satisfies the first inquiry

Our second inquiry involves the inherent powers and

privileges of the position of Regional Director. There are eleven

Regional directors in all of Puerto Rico, serving under an Execu-

tive Director and an Associate Director. Under them serve some

3000 of the 3600 CRUV employees. The position’s job descrip-

tion, as to which there was no disagreement at the hearing,

contains twenty distinct duties. We deem the job description

sufficiently important to include it as an Appendix to this opin-

ion.

For purposes of analysis we have classified the duties into

five groups, only one of which, the last, is neutral on the question

of whether the position of Regional Director more closely resem-

bles a policymaking/confidential official than a clerk. The other

four clearly show that the Regional Director proposes, estab-

lishes, and implements public policy, is privy to confidential

information, and acts as a spokesperson for the agency. What

follows, then, is the list of job duties, organized by us into

categories, with the original number of each duty retained.

1. Policy-making Functions

1. Directs, plans and supervises operational activities of the

Region.

3. Monitors compliance with Commonwealth and federal regu-

lations.

14. Discusses the Regional’s operational problems with the As-

sociate Director.

15.

19.

12.

16.

1}.

17.

18.

A44

Recommends improvement in program to Executive Direc-

tor.

Prepares and controls the Region’s budget.

Performs any assigned task.

2. Representative Functions

Conducts periodic meetings on regulations, work

guidelines, etc. with supervisory personnel.

Attends meetings, as agency representative, with other gov-

ernment officers and civic leaders to coordinate governmer:

services offered to public-housing residents.

Meets with residents and general public to resolve problem

cases.

Meets with residents and organized groups to coordinate

social activities.

3. Spokesperson Functions

Drafts correspondence for the Executive Director and As-

sociate Director.

4. Personnel Duties

Supervises and evaluates Region’s section supervisors.

Recommends recruitment, dismissals, promotions, salary

increases, and other matters for Region’s employees.

Recruits “necessary irregular personnel.”

Organizes training of Region’s employees.

5. Ministerial Duties

Reviews and signs reports to central office, HUD, and other

agencies.

Reviews and signs reports on rent changes, purchase orders,

disbursements, and budgets sent to other agencies.

Drafts reports on work performed.

Visits the Region’s housing projects.

Receives telephone calls involving Region's operations.

A45

In addition, plaintiff Jimenez Fuertes’ own testimony at the

hearing suggests his role as a policymaker:

“As regional directors we deal — we have the responsibility

of dealing with the debts at the public housing project.

When I arrived in Caguas to direct the region, the problem

of the debt was a very serious and extremely serious prob-

lem... I was sent to Caguas because...they had to send to

Caguas someone who knew the region and who could do the

work of a regional director.... Since I had knowledge of the

problems of the debt in Caguas we immediately took correc-

tive steps to fix the situation in Caguas.”!°

Likewise, plaintiff Vicente Vazquez testified that when he began

as Regional Director, he was told that he “had to be tough and

aggressive in order to straighten out this region.” He stated that it

had been “a challenge...to take control of the San Juan One

Region and to lead it to be one of the best ones.”

That the Regional Directors do not have final decision-

making authority is not determinative of our inquiry. Nekolny,

653 F.2d at 1170. They are not like the successful plaintiff in

Barrett v. Thomas, 649 F.2d 1193 (Sth Cir. 1981), only one of

several hundred deputies to a policymaking official. Rather, they

are sole directors of an entire region, each supervising approxi-

mately three hundred employees. The Regional Director is, in

effect, the alter ego of the Executive Director at the regional

level. It is through the relationship with the Regional Directors

'© Jimenez Fuentes also testified that:

“The problem of the debt is not something that can be analyzed merely

through a report regarding the debt. It’s a much more complicated

problem. And you have to see what are the attitudes and the jobs

performed by the administrators who are the ones who deal directly

with the problem of the debt.... You have to analyze personnel, the

attitude of the personnel, the money available in the budget for the

maintenance. That is, there are specifically three areas which are very

important, they are the rent collection, maintenance, and community

work. ...If you don’t work effectively with them, the attitude of per-

sonnel, the number of administrators you have, the budget, all] those

details.... We were able to organize a working team which greatly

decreased the debt in that project.

A46

that the Executive Director maintains effective control of the

implementation of the housing programs.

Other courts that have analyzed the nature of the respon-

sibilities of state directors of an agency or program have also

found that such employees perform sufficiently important roles in

government to make political affiliation an appropriate require-

ment. The District of Columbia Circuit, in a pre-Branti opinion,

determined that state directors of the Farmers Home Administra-

tion exercised considerable control over the implementation of

agricultural program policies at the state and local level such that

they could be discharged for political reasons. Committee to

Protect the First Amendment Rights of Employees of the Depart-

ment of Agriculture v. Bergland, 626 F.2d 875 (D.C. Cir. 1979).

The court found that even through the United States Civil Service

Commission classified these positions as not confidential or

policy-making positions, holders of those positions could insure

the success or failure of the program. /d. at 879. As the court

Stated:

“(Pjersons administering huge Federal government pro-

grams for an entire state will have a high policy component

to their activities, both because such large scale exercise of

power usually implicates substantive internal policy, and

because such positions are a natural source for influential

recommendations of changes in policy. Each state dérector

supervises a staff of nearly 100 statewide and acts as ‘the

administration's pipeline and advocate at the state and the

local level.”” Jd.

In Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985),

the plaintiff argued that he was not a policymaker because he

performed purely ministerial functions. the Seventh Circuit re-

jected that assertion, fining that he occupied the second highest

job in a large city department, including the administration of a

bureau with 1,150 employees and a large annual budget. /d. at

641-42. The court concluded that plaintiff was in a position where

“his political affiliation could affect the ability of a new adminis-

tration to implement new policies.” Jd. at 642. Relevant to our

A47

case, the court found that, “even though ultimate decisionmaking

authority in most areas rested with the Commissioner [and not the

plaintiff], plaintiff had substantial input into those decisions” and

his “duties were not strictly circumscribed and ...required some-

thing substantially more than simple ministerial competence.” Jd.

(citation omitted).

Likewise, in Brunton v. United States, 518 F. Supp. 223 (S.D.

Ohio 1981), the district court did not grant a preliminary injunc-

tion to state directors of the Farmers Home Administration be-

cause it found that such positions met the E/rod-Branti exception.

The court found that:

“each State Director is a vital cog in the machinery of a new

Administration's formulation and implementation of na-

tional farm and rural development policies. More than any

other person in the agency, the State Director is in the

critical position of insuring either the success or failure of

these national policies through the administration of [Far-

mers Home Administration] programs within his state area.

It is certainly expected that these positions would be filled

by individuals who will openly support and aggressively

implement the policies of the in-party in the discharge of

their duties.” Jd. at 239.

( Consistent with these opinions, we find that the Regional

Director acts as the Executive Director’s representative at the

regional level. They “develop, plan, coordinate, revise, and

monitor the progress of the agency's programs and thus gauge the

success of the Administration’s [Commonwealth] policies.” See

id. Without the Regional Directors’ political sympathy and loyal

cooperation, the Executive Director “might face a situation

where the hostile efforts or foot-dragging actions of any one of

the [eleven Regional Directors] could singlehandedly thwart the

Administration's goals in that particular [region].” See id. As

Justice Powell noted in his dissenting opinion in Branti, “if

government is to work, policy implementation is just as impor-

tant as policymaking.” 445 U.S. at 530.

We think it also of note that the Regional Directors fall within

the small category of “confidential” employees under the Puerto

A48

Rico Public Service Personnel Act of 1975, 3 L.P.R.A. $1301

(1978). The Act establishes a civil service personnel system in

which all Puerto Rico government employees are classified into

two categories. Jd. §1349. Confidential employees, who are of

“free selection and removal,” are those who “intervene or col-

laborate substantially in the formulation of the public policy, who

advise directly or iender direct services to the head of the agency.

such as...Regional directors of agencies.” Jd. §§1350 & 1350 (4).

The larger category is that of career employees, who are selected

Strictly on merit and can be removed only for cause. Jd. §§1331-

1338."!

Although we do not believe a legislature's classification sys-

tem is determinative of the Elrod-Branti question, we do think it

is entitled to some deference. See e.g., Ness v. Marshall, 660

F.2d 517 (3d Cir. 1981). Thus, we think it significant that Re-

gional Directors are among the few positions treated as

policymaking with the Commonwealth’s personnel system. The

Act generally limits the number of confidential positions to

twenty-five per agency, id. §1351 (3), and only twelve employees

from the Program of Public Housing were so designated. Eleven

of the twelve were Regional Directors. With the agency at least.

plaintiffs were considered to be at the policymaking end of the

spectrum. !?

'! When appointed to confidential positions, career employees retain their

right to career positions. If removed fror: their confidential positions, they

must be reinstated to their previously-held career positions, as occurred in this

case.

'2 The district court found, as a result of the testimony of Jorge Guil-

lermety, former Associate Director of Public Housing, that “there is little

discretion involved in the position of Regional Director.” Guillermety. who

was dismissed by the PPD and has since instituted his own suit for reinstate-

ment, testified that political affiliation is not a requisite for the position of

Regional Director because anyone with an Engineering, Public Administra-

tion or Social Services degree can qualify for the position, and because the

functions of the job are clearly and specifically set forth in the rules of the

Agency. That anyone with a particular masters degree could qualify for a

position seems to us to have little, if any, bearing on the question of whether

political affiliation is appropriate. Moreover, that the functions of the job are

clearly set forth does not mean that little discretion is involved in the job. In

fact, those functions reveal a great deal of discretion.

A49

At this stage of the proceedings, we think plaintiffs’ position

of Regional Director of CRUV is one for which, under Elrod and

Branti and the case law of the lower courts, “party affiliation is

an appropriate requirement for the effective performance” of the

office. 445 U.S. at 518. In light of this conclusion, we need not

decide whether the district court erred in finding that the plaintiffs

would not have been fired but for their party affiliation.

As a final matter, we note that the district court did not

explicitly reach a contrary conclusion about the partisan nature of

the position of Regional Director. Rather, it seems to have based

its decision primarily on the fact that it had not been convinced

that termination based on political affiliation is justified when the

administration could invoke the “simple expediency of disciplin-

ing or removing an employee who fails to abide by an Executive

Order which reflects the program of the Administration regard-

less of the employee's political affiliation.” !?

By requiring a government employer to terminate an unpro-

tected employee only upon cause, the district court ignored the

teachings of Elrod. In Elrod, the plurality scrutinized two gov-

ernment interests that were offered in defense of the patronage

practice. [he first interest was the “need to insure effective

government and the efficiency of public employees.” The defen-

dants argued that employees not belonging to the party of the

administration would lack the incentive to work hard and might

be motivated to subvert the administration’s efforts to govern

effectively. 427 U.S. at 364. The plurality rejected this interest

because, inter alia, less drastic means than political termination

exist for serving this interest. “Specifically, employees may al-

ways be discharged for good cause, such as insubordination or

poor job performance, when those bases in fact exist.” Jd. at 366.

'} We note that this is the same approach taken by the Puerto Rico

Supreme Court. In Colon v. CRUV 84 J.T.S. 52 (P.R. 1984), the Court

suggested that the plaintiff, although his functions were confidential in na-

ture,” could be removed only if he “turn[ed} his back on the requirements of

his functions as a public servant.” /d. at 21.

_Se—_—_—_— EE

ASO

In contrast, the second articulated interest — the need for

political loyalty so that the administration can carry out policies

sanctioned by the electorate — was found valid by the plurality,

as it might be applied to policymaking positions. In Branti, as we

know, the Court subordinated resort to the policymaking and

confidential labels to a more functional analysis. 445 U.S. at 518.

When, therefore, a partisan termination is defended on this

ground, there is no requirement that the employer wait for cause

to dismiss an employee of a different party; rather, to insure that

representative government not be undercut, these employees may

be dismissed without cause. Otherwise, indeed, the Elrod-Branti

exception would have no reason for being. The district court

seemingly ignored this implication, accepting the expert's tes-

timony that political affiliation may be appropriate but deciding

that the interest could be served by dismissing employees when

the employee acts in a manner obstructive of the administration.

We therefore hold that the district court abused its discretion

in finding that the plaintiffs had shown a likelihood of success on

the merits of their wrongful termination claim.

The grant of the preliminary injunction is reversed.

Appendix

Job Description for Regional Director .

“]. Directs, plans and supervises the operational and administra-

tive activities of the Region, such as: Accounting, Personnel and

Occupation, Maintenance, Modernization, Community Labor.

Management and Section 8.

2. Reviews and signs the reports submitted to the Central Office,

HUD and other related agencies.

3. See [sic] to it that the norms and regulations are complied with

in accordance to the philosophy of the Public Housing Adminis-

tration and the HUD Federal Agency.

AS]

4. Arranges periodic meetings with supervisory personnel to

counsel and inform as to changes in norms and regulations and/or

new work guidlins [sic] and other matters.

5. Reviews, approves and signs the reports on rent changes,

which are sent to the Federal Agency, Central Office of the

Housing Department and other agencies; reports on Accounting

purchase orders, disbursements, functional budgets of the Region

and preliminary budget of maintenance works and others.

6. Attends, representing the Agency, to meetings with other

government officers or civic leaders from the community in order

to discuss and coordiate the implementation of Social Services,

economics, health and other type of services offered topublic

housing residents and programs of the Housing Department.

7. Drafts reports related to the work performed.

8. Drafts correspondence for the signature of the Associate Direc-

tor and/or CRUV Executive Director.

9. Supervises and evaluates the Supervisors of the different sec-

tions attached to the Region.

10. Makes recommendations on personnel recruitment, dismis-

sals, promotions, salary increases and other relations with the

Region’s employees.

11. Recruits necessary irregular personnel at the Region.

12. Receives and hears residents or general public in problematic

cases which have not been solved at a lower level.

13. Performs periodic visits to the housing projects at the Region.

14. Attends periodic meetings with the Associate Director, to

discuss problems related to the operations of the Region.

A52

15. Offers recommendations to the Executive Director to improve

the services rendered by the Program.

16. Arranges meetings with residents and/or organized groups in

the community for the coordination of social activities.

17. Plans and organizes training for the Region’s employees in

coordination with the Training Committee.

18. Receives telephone calls to give or receive information re-

lated to the Region's operations.

19. Is responsible for the preparation and control of the functional

budget of the Region.

20. Performs any task as assigned.”

“Concurring follows”

ALDRICH, Senior Circuit Judge, concurring. As the writer

of the panel opinion which is now reversed, I am not at all

personally unhappy with this result. I can believe, too, that quite

possibly we were too strict, so far as the present plaintiffs are

concerned.

At the same time, with great respect to my brethren, |

cannot but wonder if some parts of the present opinion read more

like the, admittedly provocative, Branti dissent than the majority

opinion. It is of course true that a change of party at the polls may

be stimulated by “lackluster” performance, but this is the age-old

excuse — or reason — for patronage. The proper balance is

elusive. I worry about the court’s broad, and I suggest, unneces-

Sary, generalizations about “lackluster,” and its complement

“tough and aggressive.” These are personal attitudes, far beyond

party. Any empioyee outside of civil service can be discharged

for lackadaisical performance. To what extent are there to be

classifications where non-party membership is the equivalent?

I am particularly doubtful about invoking the Puerto

Rico Personnel Act. Since I believe my court would be quick to

AS3

say that, from the constitutional standpoint, this act goes too far,

how is it persuasive in some individual case though not in others?

And, finally, is not the court overinclusive in categorizing “a

privy to confidential information”? Al! sorts of low level em-

ployees may be mechanically privy. Surely ability to keep confi-

dences should not be determined by party affiliation.

With the customary freedom of a judge speaking for

himself to express his personal mind, I could hope that the

Supreme Court might see fit to liberalize its Branti views, but,

again with respect, I wonder, in the meantime, if my court’s

guidance may not have preceded it. In particular I agree with my

brother Torruella’s aspersions against the Seventh Circuit’s deci-

sion in Jomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985).

“Dissenting follows”

TORRUELLA, Circuit Judge (Dissenting). Although I

realize that the majority’s task in attempting to define when

political affiliation is “appropriate” to a governmental task is not

an easy one, I suggest that this burden has not been lightened by

its refusal to give due weight to the most relevant reference

available in this particular case. See Colon v. CRUV, 84 J.T.S. 52

(P.R. 1984).

Undoubtedly influenced by the inflated assertions of

appellants regarding an alleged egregious volume of political

discharge cases pending before the United States District Court

for the District of Puerto Rico, the majority has been induced into

granted en banc consideration with a view to laying down an

all-encompassing rule that will easily resolve these controversies.

Unfortunately, the subject of this special attention is a case which

both procedurally and factually does not lend itself to such facile

disposition. The majority’s statement that the “‘conclusions’ and

‘holdings’ as to the merits of the issue presented are to be

understood [oniy] as statements as to probable outcomes,” ante,

at 4, further emphasizes the inappropriateness of using this

juncture for the purpose of laying down a pronouncement by an

en banc court. More importantly, if this is a “tentative” holding,

AS54

the strained result is additional proof that it contributes little to

providing concrete guidelines for future action by the district

courts or by governmental administrators.

Although the opinion appeals to “common sense judg-

ment,” ante, at 14, I fail to see how a dispassionate observer can

conclude that such a standard was applied herein if we consider

that the majority opinion reaches an opposite conclusion, regard-

ing the same job classification and description, as was reached

by three other judicial bodies, e.g., the Supreme Court of Puerto

Rico, Colon v. CRUV, supra, the United States District Court for

the District of Puerto Rico, and a panel of judges of this Court

(opinion issued December 20, 1985). I do not believe that the

present court has a higher claim to common sense than the three

judicial bodies that preceded us in deciding this issue. Thus, the

majority opinion not only fails to provide cogent guidelines for

future action, but completely unsettles what little law was avail-

able to direct the district courts in this delicate area. Furthermore.

the observance by the public of such a divergence of results can

only cause an erosion of its confidence in the judicial process. See

Pound, The Causes of Popular Dissatisfaction With the Adminis-

tration of Justice, 20 Journal of the American Judicature Society

170, 183-185 (1936-37) (reprinting of an address delivered by

Roscoe Pound in 1906 at the annual convention of the American

Bar Association).

When all is said and done, the majority simply does not

accept the holding in Branti v. Finkel, 445 U.S. 507 (1980). That

case places a heavy burden on the side claiming “that party

affiliation is an appropriate requirement for the effective per-

formance of the public office involved”:

[U]nless the government can demonstrate ‘an overriding

interest...of vital importance’ requiring that a person’s

private beliefs conform to those of the hiring authority.

his beliefs cannot be the sole basis for depriving him of

continued employment.

Id. at 516. This is not a new rule, the Court in Elrod v. Burns . 427

U.S. 347, 362, 368 (1975), having indicated that ‘‘the

ASS

[governmental] interest advanced must be paramount,” and that

“cases of doubt [should be] resolved in favor of the [employee].”

See also Buckley v. Valeo, 424 U.S. 1, 94 (1976). This high

standard is overcome in the present appeal by reliance on the

flimsiest of evidence and on Branti-discarded labels.

Notwithstanding Branti’s stricture that “the ultimate in-

quiry is not whether the label ‘policymaker’ or ‘confidential’ fits

a particular position,” id. at 518, much of the majority’s analysis

continues to rely on such tokens. Ante, at 18-19 (“policymak-

ing”), 22,23 (“confidential”), 24 (“policymaker,” “confiden-

tial”). Even assuming arguendo the present-day relevance of

these labels, the opinion’s deference to Puerto Rico’s Legislature

in classifying the disputed position within those titles, ante, at 24,

is particularly disconcerting considering its failure to grant equal

treatment to the Supreme Court of Puerto Rico’s interpretation of

its law. Ante, at 17 n.9. See Posadas de Puerto Rico v. Tourism

Co. of Puerto Rico, U.S. ,54U.S.L. W. 4956, 4959 (July 1,

1986) (in deciding a First Amendment violation claim, the restric-

tive interpretation given by the Supreme Court of Puerto Rico to a

local statute is entitled to “[a] rigid rule of deference...given the

unique cultural and legal history of Puerto Rico.” Jd. n.6).

This case also sets bench marks in other respects. We

now have “experts” in the field of “appropriateness of political

affiliation.” Although I would not have thought that this is a

matter within the reach of Rule 702, Fed. R. Evid., I will, also

arguendo, overlook this apparent technicality. It would seem,

however, that such factual conclusions as were testified to by Dr.

Hirshbrunner are nevertheless subject to the strictures of Rule

52(a) of the Civil Rules, which advises against the setting aside

of a trial court’s findings of fact, even in “granting interlocutory

injunction(s]...[,] unless clearly erroneous.” Rule 52(a), Fed. R.

Civ. P. As stated by the original panel majority in this case in

upholding the district court’s findings, “By this time we need not

dwell on the principle that the district court’s findings of fact

must stand unless clearly wrong.” Jimenez Fuentes v. Torres

Gaztambide, slip op. (Aldrich, J., December 20, 1985), at p. 4.

Notwithstanding the clarity of this statement of principle, in view

of the majority’s actions I am obliged to remind it of the

AS56

additional wisdom provided by Anderson v. City of Bessemer

City, N.C., U.S. , 105 S. Ct. 1504, 1511-1513 (1985), also a

discrimination case, in which the Supreme Court stated:

[A] finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that

a mistake has been committed. This standard plainly does

not entitle a reviewing court to reverse the finding of the

trier of fact simply because it is convinced that it would

have decided the case differently. The reviewing court

oversteps the bounds of its duty under Rule 52 if it

undertakes to duplicate the role of the lower court... If

the district court’s account of the evidence is plausible in

light of the record reviewed in its entirety, the court of

appeals may not reverse it even though convinced that

had it been sitting as the trier of fact, it would have

weighed the evidence differently. Where there are two

permissible views of the evidence, the fact finder’ s choice

between them cannot be clearly erroneous. This is so

even when the district court’s findings do not rest on

credibility determination, but are based instead on physi-

cal or documentary evidence or inferences from other

facts. ... Rule 52 ‘does not make exceptions or purport to

exclude certain categories of factual findings from the

obligation of a court of appeals... cept a district court's

finding unless clearly erroneous’.

...But when a trial judge’s finding is based on his deci-

sion to credit the testimony of one of two or more witnes-

ses, each of whom has told a coherent and facially plaus-

ible story that is not contradicted by extrinsic evidence.

that finding if not internally inconsistently can virtually

never be clear error.

Citations omitted, emphasis supplied.

The majority violates virtually every prescription in An-

derson. Unless the original panel of this court was completely

AS5S7

misguided, I can state with some assertion that the evidence

presented to the district court permits at least two plausible views

of the evidence.

It is self-evident that the trial court rejected the “ex-

pert’s” “opinion” on this matter, as well it might have in view of

the facetious nature of this testimony. The “expert’s ” statement

that there are ideological differences between Puerto Rico’s two

leading parties regarding the acceptance or non-acceptance of

federal funds for public housing, ante, at 17, would lead any trier

of fact sitting in Puerto Rico to question the reliability of such an

assertion. See Junta de Planificacién de Puerto Rico, /nforme

Economico al Gobernador, 1984-85, San Juan, Puerto Rico

(1986), Tabla 19, “Transfers between Puerto Rico and the Federal

Government... Fiscal Years 1972-85,” p. A-19, column entitled

“Rent subsidies.”

The “expert’s” conclusions regarding the need for polit-

ical affiliation of the job description in question are equally

incredulous. The Supreme Court of Puerto Rico, in considering

this same position, with an almost identical job description, put it

this way:

It would be difficult to visualize that the faithful and

efficient discharge of the duties of Director or General

District Supervisor, as listed in OP-16 of the Personnel

Office, in the public housing program, would require a

determined loyalty to the ideological postulates of a

given political party.

Colon, supra , at 3628. (My translation). I believe we would be on

safe grounds to assume that Puerto Rico’s Supreme Court is better

qualified to reach this conclusion than appellant’s “expert.”

Yet, the majority avoids specifically ruling that the dis-

trict court was clearly erroneous in not giving credibility to the

“expert's” tailormade testimony. Of course, if we conclude that

the issue of “appropriateness” is a legal one, then the district

court had no business in even hearing Dr. Hirshbrunner’s opin-

ion, and we, even less in relying upon it as a basis for today’s far

reaching Gecision.

A58

Although much is made of the ranking of the regional

director’s position within CRUV, the majority overlooks the real

standing of that position in the hierarchy of the Department of

Housing, the umbrella organization within which CRUV is but

one of three divisions. Joint Exhibits I and II, reproduced as

appendices to this dissent, establish that “regional director” is a

bombastic title for a fifth echeleon government supervisor (their

previous title), with /imited territorial and agency jurisdiction.

These, at least, are two distinguishing features from Tomczak v.

City of Chicago, 765 F.2d 633 (7th Cir. 1985), in which the

politically-discharged employee occupied the second highest job

in a city-wide department. Other cases relied upon by the major-

ity. ante, at 21-23, involve employees with agency-wide or

statewide authority. The very testimony of plaintiffs Jiménez-

Fuentes and Vicente Vazquez, cited as proof their “role

as...policymaker[s],” ante, at 19-20, is in fact demonstrative of

exactly the opposite: they were sent and told to do a job in a

region, i.e, all they did was follow orders and policy established

higher up.

Reliance on Tomczak in my opinion is not advisable. In

addition to the factual distinctions already alluded to, | believe

that a holding, which makes the dispensation of water a job in

which political affiliation is an “appropriate” requirement for its

effective performance, is a highly suspect ruling. I should point

out that we shall be the first court outside the Seventh Circuit to

even cite Jomczak.

Nor do I agree with the majority’s labeling or analysis of

the job description in this case as leading to a “common sense”

conclusion that political loyalty is appropriate to a regional direc-

tor’s job. Ante, at 18-19. Important and relevant portions of that

description have been overlooked. See Appendix, ante, at 28-30.

For example, from paragraph 1 of those functions labelled

“policy-making” by the majority, ante, at 18, is excluded the fact

that the functions therein described merely deal with activities

“such as: Accounting, Personnel and Occupation, Maintenance,

Modernization, Community Labor, Management and Section 8.”

Ante, at 28. From the next paragraph included by the majority

within that label, Paragraph 3, have been omitted those parts

AS9

dealing with the standard to be applied by the regional directors in

monitoring compliance: “the philosophy of the Public Housing

Administration and the HUD Federal Agency.” Ante, p. 28. If we

equate “philosophy” with “policy,” the conclusion cannot be

avoided but that a regional director follows, rather than estab-

lishes, public policy. The discussion of his region’s operational

problem with the associate director (No. 14), the offering of

recommendations on improvement of the services to the Execu-

tive Director (No. 15), and the preparation and control of his

Region’s functional budget (No. 19), can only be labelled

“policymaking” by a more expanded view of that term than has

hereto been prevalent.'! Requirement No. 15, “[pJerforms any

task as assigned,” is, if anything, illustrative of the subservient

status of regional directors rather than an indication of their

“policymaking” prerogatives.

I do not believe that it is necessary or productive to

continue an indefinite discussion of the majority’s analysis of the

job description. A brief reading of the duties classified under the

various headings (“Representative Functions,” “Spokesperson

Functions,” “Personnel Duties,” “Ministerial Duties”), ante, p.

19, reveals that these activities are similar to those carried out by

a myriad of low and middle level government executives. If the

performance of these functions are sufficient excuse for abroga-

tion of their First Amendment rights under Branti, then this Court

is opening the flood gates for the swinging of the patronage axe.

This will be a judicial throwback to the days of the spoils system,

when someone in a position like the regional directors, because

they were party hacks responding to selfish partisan interests,

could condition the granting of public aid to “appropriate” party

affiliation by the recipient. This decision will hardly be a con-

tribution by this court to good government to say nothing of the

chilling effect that it will have on the exercise of the associational

rights of the thousands of government employees who must now

fear its impact.

3° «666

' See Elrod v. Burns, 427 U.S. 347, 368 (1976):

In determining whether an employee occupies a policymaking position,

consideration should also be given to whether the employee acts as an

advisor or formulates plans for the implementation of broad goals.

(Emphasis supplied).

A60

This is an unfortunate decision. It is the wrong case, the

wrong juncture in that case, and the wrong outcome. Branti,

supra; Anderson, supra.

Politiae legibus non leges politiis adaptandae .

I dissent.

A6l

APPENDIX H

United States Court of Appeals

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, appellees,

HON. JAIME TORRES GAZTAMBIDE, ET AL.,

Defendants, appellants.

JUDGMENT

Entered: September 19, 1986

This cause came on to be reheard on petition for rehearing en

banc.

Upon consideration whereof, It is now here ordered, adjudged

and decreed as follows: The order of the district court granting

the preliminary injunction is reversed.

By the Court,

Francis P. Scigliano

Clerk.

A63

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 85-1655

ARNALDO JIMENEZ FUENTES, ET AL.,

Plaintiffs, appellees,

HON. JAIME TORRES GAZTAMBIDE, ET AL..,

Defendants, appellants.

Before

Campbell, Chief Judge,

Aldrich, Coffin, Bownes, Breyer and Torruella,

Circuit Judges.

ORDER OF COURT

Entered: October 21, 1986

Upon consideration of appellees’ petition for rehearing,

It is ordered that said petition be and the same hereby is denied.

By the Court,

Francis P. Scigliano

Clerk.

A64

APPENDIX J

Zaida Lydia De CHOUDENS, et al.,

Plaintiffs, Appellees,

Vv.

The GOVERNMENT DEVELOPMENT BANK

OF PUERTO RICO. et al.,

Defendants, Appellants.

No. 86-1059.

United States Court of Appeals,

First Circuit.

Sept. 19, 1986

As Amended Sept. 24, 1986.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES,

BREYER and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

Plaintiff-appellee Zaida Lydia De Choudens claims she was

demoted from her government position on the basis of her politi-

cal affiliation in violation of her first amendment rights. See

Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S.

347 (1976). In this companion case to Torres Gaztambide v.

Jimenez Fuentes, No. 85-1655, slip op. (Ist Cir. Sept. 19, 1986),

we decide whether political affiliation was an appropriate re-

quirement for plaintiff ’s position.

In both cases, federal district judges in the District of Puerto

Rico had granted preliminary injunctions, requiring the

A66

reinstatement of the plaintiffs to their governmental positions. '

The plaintiffs, members of the Partido Nuevo Progresista (PNP).

had been removed from their positions by officials from the

__ Partido Popular Democratico (PPD), which won the November

1985 general election. In Jimenez Fuentes, we reversed the is-

suance of an injunction, concluding that the position at issue

(regional director of a housing agency) resembled one where,

because it involved policymaking, confidential, and spokesper-

son functions in an area responsive to a party’s governmental

goals, political affiliation was an appropriate requirement. In this

case, we affirrn the district court’s grant of a preliminary injunc-

tion because, although the position at issue involves policymak-

ing, the reposing of confidence, and communicating, we pres-

ently conclude that such functions are so remote from advancing

or thwarting the agency's partisan-responsive goals that political

affiliation would not be considered an appropriate requirement.

Plaintiff served in the Puerto Rico Government Development

Bank (Bank) for over twenty years. She rose from the position of

accountant through eight career-level positions to Senior Vice

President of the Finance Area. She was one of the three vice

presidents, serving under the President and Executive Vice

President. After the new administration assumed power in

January 1985, defendant-appellant Jose Ramon Oyola? was ap-

pointed president of the Bank. In April 1985, Oyola notified

plaintiff that she was being “separated” from her position of trust

and reinstated to a career position.

Il.

Defendants claim that the district court abused its discretion

in finding that plaintiff had shown a likelihood of success on the

merits. Although they do not concede that plaintiff was trans-

ferred for political reasons, they do not challenge that finding.

! After the court voted to vacate the original panel decision in Jimenez

Fuentes and hear that case en banc, we voted to hear argument in this case en

banc at the same session, without the assistance of a panel decision.

2 The other defendants-appellants are the Bank and its seven directors.

whee BD Re AS Nef ha fA ANSEL AE

UA acid aa Sk sea chants ale redaule

i A MR RB aid a eS

A67

They do challenge the district court’s findings that the plaintiff

would not have been transferred but for her political affiliation,

and that her position was not one for which political affiliation

was appropriate. We address these asserted errors in turn.

As in Jimenez Fuentes, we preface our discussion by noting

that our standard of review is whether the issuance of the injunc-

tion constituted an abuse of discretion, id: at 3, and that our

conclusions at this juncture are to be understood as statements as

to probable outcomes, id. at 4.

[1] The first issue is whether the district court abused its

discretion in ruling, pursuant to Mr. Healthy City School District

Board of Education v. Doyle, 429 U.S. 274 (1974), that defen-

dants failed to show that they would have demoted plaintiff

notwithstanding her political affiliation. See Rosaly v. Ignacio,

593 F.2d 145, 149 (1st Cir.1979). Defendants on appeal face an

uphill task because their sole witness was Oyola, the new PPD

president of the Bank. Although they introduced much documen-

tary evidence, their Mr. Healthy defense rested upon Oyola’s

credibility.

Oyola stated that he demoted plaintiff because he deemed her

incompetent, providing four reasons for his conclusion. First, she

had “very bad” relations with the personnel she supervised,

based on comments made by union officials. But Oyola spoke of

these comments in conclusory terms, and did not know the

eventual outcome of the complaints against her. In fact, the few

grievances carried to a conclusion largely, if not completely,

vindicated plaintiff and the Bank. A union resolution censoring

plaintiff may well have arisen from an institutional position taken

by the Bank in its labor negotiations.

A second proferred reason was inadequate internal controls in

the food stamp division, which made possible a substantial theft

of food stamps by several employees who were later convicted.

While some audit reports were critical of various Bank proce-

dures, commendations later followed, and it was plaintiff herself

A68

who apparently instituted the lengthy investigation that lead to the

apprehe 1sion of those responsible. Moreover, the district court

might well have been skeptical of this reason in light of the fact

that the official (a PPD member) in direct charge of the food

Stamp operation at the time of the thefts was assigned plaintiff ’s

duties after her removal.

A third ground was plaintiff’s alleged delinquence in failing

to supply enough accounting personnel to service a high-risk

private loan program. But evidence showed that plaintiff recog-

nized the problem and obtained temporary outside help. Oyola’s

fourth and final reason for demoting plaintiff was that she had

failed to put into operation a computerized loan-administration

system. Although the needed software had been acquired but was

not in use, the court found that employees in a division outside

the plaintiff ’s area had not yet developed the files or technique to

use it.

In addition to considering the conflicting evidence and infer-

ences relating to the four proffered reasons for demoting plaintiff.

the district court was entitled to take into account the following

circumstances. Shortly after Oyola took office, the new Secretary

of Justice asked to see all files of employees in positions of

confidence, including plaintiff’s.* Subsequently, the Secretary

reported his belief that all were indeed positions of confidence.

removable at will. Notwithstanding this report, Oyola stated that

he removed the three Senior Vice Presidents because of their

incompetence. He professed not to know that they were PNP

members. Moreover, at no time during the two months preceding

plaintiff ’s demotion did Oyola talk with her or her supervisors

about her work or its shortcomings.

In short, we cannot fault the court for finding Oyola not

credible. And the various documents are not so clear and compel-

ling as independently to make the case against plaintiff. We

therefore find that the district court did not abuse its discretion in

finding that plaintiff would not have been demoted “but for” her

political affiliation.

3 Plaintiff's position was a confidential position under the Puerto Rico

Public Service Personnel Act of 1975, 3 L.P.R.A. % 1301 et seq. (1978). See

Jimenez Fuentes, slip op. at 22-23.

Nie i Re ie Lelie!

ORAL EAD AD LANA eb LE tate Bley.

A69

{2} Defendants’ remaining basis for prevailing on this appeal

is their argument that the district court abused its discretion in

holding that defendants failed to meet their burden, under Elrod

and Branti, of showing that political affiliation is an appropriate

requirement for the position at issue. Rather than recite again our

observations as to the relevant authorities and our resulting

guidelines of analysis, we rely on our opinion in the companion

case, Jimenez Fuentes. We do find, however, one proposition

worth repeating:

“A threshold inquiry, which derives from Branti, involves

examining whether the position at issue, no matter how policy-

influencing or confidential it may be, relates to ‘partisan political

interests....[or] concerns.’ 445 U.S. at 519. That is, does the

position involve government decisionmaking on issues where

there is room for political disagreement on goals or their im-

plementation. Otherwise stated, do party goals or programs affect

the direction, pace, or quality of governance.”

Jimenez Fuentes, slip op. at 12.

We begin by scrutinizing the Bank itself. Although the district

court focused primarily on plaintiff ’s position in the Bank, it did

note the Bank’s role as advisor and fiscal agent of the government

of Puerto Rico. The court commented on the Bank’s need for

continuity of organization (fostered by the directors’ staggered

four-year terms), as well as its need for financial stability and

strength. It stated that “to subject this financial institution to the

influence peddling and cronyism that patronage brings will erode

its very foundation.” This was dictum, unnecessary to the court’s

determination that political affiliation was an inappropriate re-

quirement for plaintiff ’s position, and we think probably over-

broad as applied to the other, more politically-sensitive positions

at the Bank.

As of 1984, the Bank had nearly four billion dollars of assets,

and some three hundred employees. Its three primary functions

are: fiscal agent and financial advisor to the Commonwealth and

its Governor, its agencies, municipalities, and public corpora-

tions; lender to government and private industry; and depository

of Commonweal!th funds. The Bank’s Annual Report spoke of its

A70

’

“Group,” including its subsidiaries and affiliates, as providing

“leadership in promoting renewed economic growth”; a “mul-

tifaceted, yet coordinated approach to development, which, dur-

ing fiscal 1984, emphasized commercial, industrial, agroindust-

rial, tourism, and human resource development”; increased allo-

cations of loans to encourage new investment in hotels, to spur

agricultural exports and manufacturing; and a redirection of the

Puerto Rico Development Fund to serve small business. Oyola,

representing the new administration, testified that he had been

given “a clear policy direction ... to create a Development Bank

out of the [Bank]” to engage in innovative private financing of

each and every organization of the Commonwealth of Puerto

Rico.

To us, these seem like indicia of legitimate partisan goals for

government operations, not far removed from some of the policy

objectives of CRUV discussed in Jimenez Fuentes. This, how-

ever, need not detain us long for there remains the critical inquiry:

even assuming that the Bank’s strategic leadership positions are

ones for which political affiliation is an appropriate requirement,

is plaintiff ’s position within this group? Defendants, of course,

most emphatically endorse the concept of the Bank as an instru-

ment of public policy responsive to a new administration’s eco-

nomic development goals and underscore the district court’s

statement that it had “no quarrel with [defendants’] contention

that [plaintiff] is a policymaker and has access to confidential

information within the bank.” This, to defendants, is the end of

the quest.

So it was in Jimenez Fuentes where plaintiffs, regional direc-

tors of a public housing corporation, were top “line officers” or

proconsuls for their agency within their region, representing the

agency in all respects. Each region was a microcosm of the larger

agency, and the duties of each regional director were representa-

tive of the duties of the agency’s executive director. The instant

case, however, presents us with a staff official who, while in-

dubitably in a policymaking, confidential, and communicative

position, is both empowered and constrained by the limits of her

specialized functions. Because her division is not a microcosm of

the larger agency, it is insufficient to show that she is a

ee ale ean eet

ae fits ER OLRM a. I ln AR de

A7l

policymaker for a Bank that involves partisan political concerns.

Elrod and Branti require us to examine whether political affilia-

tion is an appropriate requirement for plaintiff's particular posi-

tion.

We now paraphrase the district court’s findings, which we

find amply supported, regarding the plaintiff’s position. Plaintiff

heads one of the Bank’s three main operation areas, the Finance

Area, the other two divisions being the Investment, Treasury and

Public Financing Area and the Private Financing Area. The

Finance Area’s main function is the offering of accounting serv-

ices to the Bank’s other areas and dependencies. It keeps account-

ing records on the Bank’s operations and services other govern-

ment agencies’ accounts with the Bank. It also acts as advisor to

government agencies on accounting matters.

Within the Finance Area are: the Controller Division, which

maintains and updates the Bank’s internal systems and procedures

to ensure that there are adequate internal controls acceptable to

outside examiners: the Budgeting and Contro] Division, which

examines the Bank’s proposed disbursements to ensure that they

are made in accordance with the approving authority; the

Fiduciary Unit, which monitors the payment of the central gov-

ernment of Puerto Rico’s public debt and maintains accounting

records for the central government's sinking fund; the Accounting

Division, which maintains accounting records of the public and

private sector loans and prepares monthly and annual statements;

the Current Accounts Division which is in charge of the Secretary

of the Treasury of Puerto Rico’s account and the payment of

central government checks issued by that department and other

agencies; the Government Accounts Service Division, which

complements the Currents Account Division in serving all gov-

ernment accounts; and the data processing activities, which in-

clude three divisions responsible for all the computerized data

services.

As Vice President of the Finance Area, plaintiff was in charge

of planning, coordinating, directing, and supervising these di-

visions. She was also a member of the Bank’s Loan Committee

and she sometimes acted as interim President. Plaintiff testified

that she gave advice to the President and the Board of Directors

on financial matters within her area.

A72

Keeping in mind the district court’s findings of an admittedly

broad range of duties, we have scrutinized defendants’ brief and

record references for evidence of the relationship between plain-

tiff ’s position and those strategy decisions that the leadership of

the Bank might make in response to a new governor's administra-

tion in Puerto Rico. Defendants cogently point to the broad

discretion lodged in the Senior Vice President for the Finance

Area, the power to make rules and recommend reorganization.

the oversight of accounting policy, a contribution to investment

Strategy, budget and personnel recommendations, and software

advice. While these responsibilities signify a position of sub-

stance, of valued policy contributions, recommendations, and

advice, they involve politically-neutral, technical, and profes-

sional matters. Similarly, though plaintiff was indeed an agency

spokesperson, there is no suggestion of any “party line” or

political, goal-oriented message that she ever communicated.

What did pique our interest was the power, delegated on

occasion, of plaintiff to act as president of the Bank, because this

responsibility might overleap the normal technical boundaries ot

plaintiff ‘s position. Our review of the record reveals only the

following occasions when she acted as president: when the Presi-

dent informed her of the Bank's position; when she made no

decision; when she commenced the budget presentation to the

Board of Directors because the President was late; when she gave

a technical reason to the Board for holding up a loan disburse-

ment;* and when she acted only after calling the President for

instructions.

In order to carry their burden of demonstrating the

politically-sensitive nature of the position at issue, defendants

relied on Oyola to identify where and how a person in plaintiff ’s

position might help or hinder the pursuit of the Bank leadership's

Strategic goals. He stated that the Finance Area was the most

* The background of this presentation was that the Board of Directors had

passed two or three resolutions regarding the loan in question. Technical

difficulties had arisen, and it was not clear that the Board wished to take a

second-mortgage position subordinate to a private bank. Plaintiff could not

discern the Board's intent from the minutes and “had to go back to the board

and ask them.” This indicates to us the dominant policymaking status of the

Board on approving loans and the purely technical role of plaintiff's position

A73

important of the Bank’s three areas for the “internal work” of the

Bank to ensure “the proper flow of work.” Fie added that it was

important “to have the same views of what the accounting system

should be....” Not only did Oyola admit that he did not know

what plaintiff ’s ideas were on such matters, but it seems clear to

us that however broadly “partisan” may be defined, it cannot

encompass these technical, professional criteria. And, although

defendants allude to plaintiff’s part in administering the loan

portfolio, Oyola’s testimony reveals that plaintiff’s involvement

consisted of accounting advice.

The district court concluded:

“The area which plaintiff previously directed is precisely

that part of the institution entrusted with safeguarding its

bank operations in the strict sense of the word. The Finance

Area is essentially a provider of accounting services and

technical, financial information to give other areas of the

Bank the necessary input to make their decisions. Whatever

characteristics of plaintiff ’s former position could arguably

be related to a partisan political interest are so insubstantial

when considered in the context of her overall functions that

they do not outweigh her First Amendment right to political

affiliation.”

At this juncture, based on the evidence before the district

court, we cannot find any abuse of discretion. We recognize the

closeness of a case involving the political firing of a top

policymaking official in a public agency. It may well be that in

any further proceedings on a permanent injunction a sufficient

nexus will be drawn between the position at issue and the kind of

policy relating to partisan concerns. At the moment, however, we

cannot fault the district court for not seeing it.

The district court's issuance of a preliminary injunction is

affirmed.

TORRUELLA, Circuit Judge (concurring).

A74

Although I agree with the conclusion of this appeal, to the

extent that it relies on the reasoning of the en banc opinion issued

today in Jiménez Fuentes, et al. v. Torres Gaztambide, et al., No.

85-1655, slip op. (Ist Cir. Sept. 19, 1986), I cannot but concur in

its outcome. I also am in disagreement with the en banc attention

given to this case sans the normal procedure of panel considera-

tion having been previously accorded. I see nothing in this case

which warrants such expedited treatment.

APPENDIX K

IN THE

SUPREME COURT OF PUERTO RICO

Juan Herman Colon et al.,

Plaintiffs and appellants

V. No. R-84-29*

Review

Urban Renewal and Housing Corporation

Defendant and appellee

MR. JUSTICE NEGRON GARCIA

delivered the opinion of the Court.

San Juan, Puerto Rico, June 4, 1984

*Cited at 115 D.P.R. 503 (1984)

A76

Our Constitution “recognizes the right to have different ... and

conflicting political ideas, without this difference or conflict

being a negative or positive factor in any person’s relations with

the State.” Diario de Sesiones de la Convencion Constituyente

2562, Equity ed. (1961). In order to approach that constitutional

idea, it is time that administrators, appointing authorities, and

mayors understand that the Judicial Power shall not tolerate

politico-partisan discrimination or unlawful ¢ismissals.

]

This appeal stems from a complaint filed by Juan Herman

Colén, César Rivera Flores. and Luis R. Castaneda, for their

allegedly unlawful dismissal from their positions in the Urban

Renewal and Housing Corporation (URHC) in 1973.

A brief background of the public career of these officers is in

order. According to the findings of the learned trial court, in 1954

Colon began to work with the Ponce Housing Authority. which

was absorbed into the URHC. In 1969, he worked as Accountant

III, with a monthly salary of $525.00. That year. he was ap-

pointed Ponce District Manager, with the position of Housing

Administration Executive. Castafeda began working in URHC

on September 1, 1963, and in 1969 was Accountant III in

Humacao. He earned $550.00 monthly. On August 1, 1969, he

was appointed Executive Officer VI, Generai District Supervisor.

Rivera Flores was an Agronomer IV in the Noncompetitive

Service, within the Department of Agriculture. He then earned

$650.00 monthly. On September 16, 1971, he was appointed as

Manager or General District Supervisor for the Caguas Office of

URHC. These three persons were publicly identified with and

were active members of the New Progressive Party (N.P.P.).

Under that governmental administration they were directly ap-

pointed by the then Executive Director of URHC, Mr. Miguel

Santiago Meléndez.

The Personnel Regulations of the URHC in force at the time

these appointments were made, classified the position of General

District Supervisor as confidential. An amendment introduced by

the Board of Directors on October 24, 1972 to classify such

positions as “regular or career” was subsequently declared null.

The composition of the Central Administration changed in

A77

1973. The new Secretary of Housing named Ismael! Rios San-

chez, and Mrs. Maria L. Guerra as Associate Director of the

Housing Administration Program. During January and February,

Rios Sanchez met with each of the plaintiffs. He told them that he

was going to appoint “persons of trust” to the position of General

District Supervisor. He offered Colén and Castafeda regular

positions in the agency equal to the positions they previously

held. Both rejected the offer because of the salary reduction the

same would represent. Rivera Flores, who previously held no

position in URHC — he came from the Department of Agricul-

ture — stated his plans of returning to the private sector. Under

the premise that such positions were confidential, they were

dismissed. Allegedly, they were eventually substituted by persons

identified with the Popular Democratic Party (P.D.P.).

They appealed to the San Juan Superior Court, questioning the

legality of that ‘ecision. The trial court concluded that the serv-

ices rendered by plaintiffs were those rendered by confidential

employees, hence, the summary dismissal was valid. We issued

an order to show cause in order to examine said judgment.

It is clear that at the time when appellants were named District

Managers, the URHC Personnel Regulations contained a proce-

dure for the recruitment of career personnel. It required persons

to take and pass entrance and promotion tests for the different

positions; it also established a list of eligibles. None of the

plaintiffs appellants went through that process. Their appoint-

ments were direct. That procedure, together with the nature of

their functions, tends to sustain the conclusion that they were

confidential employees. In view of that situation we would not

ordinarily intervene with the decision of the trial court dismissing

the complaint.

Now then, the reason inferred by Executive Director Rios

Sanchez for their substitution, that is, to recruit persons of his

trust to execute his orders or instructions, is of little juridical and

persuasive value. The appellants inferred that it really was due to

political discrimination. The evidence and circumstances present

herein move us to agree. It was stipulated that “plaintiff's admin-

istrative ability was never in controversy or was it ever a det-

A78

rimental factor in the decision.”' The allegation that they were

replaced by members of a different party creates a strong infer-

ence that this was the real motive. In these circumstances, it is

justified to conclude, through the preponderance of the evidence.

that there was political discrimination. Navedo v. Municipio de

Barceloneta, 113 D.P.R. 421 (1982); Baez Cancel vy. Mayor Mun.

of Guaynabo, 100 P.R.R. 980 (1972). They were entitled to have

their cause of action weighed under the doctrine stated in Ramos

v. Srio. de Comercio, 112 D.P.R. 514 (1982). To such effects.

although their functions were confidential in nature, we note that

the appointing authority has not been able to show that the

political affiliation was an appropriate requirement for the dis-

charge of the public office in question. We are not surprised. We

do not see that the faithful and efficient discharge of the duties of

a District Manager or General Supervisor, as listed in OP-16 of

the Personnel Office,? of a public housing program requires a

given loyalty to the ideological axioms of a political party. Such a

preference is not necessarily a valid criteria for being either the

person entrusted with implementing that social program's

' The lack of the administrative ability necessary for a position; or careless-

ness. inefficiency or lack of discipline in the discharge of such functions.

would be grounds to validly dismiss a confidential employee.

* It read:

“|. Plan, organize, assign, and supervise all operational and administra-

tive activities in the district, such as: social services and Community Work

offered to residents, selection and occupation of housing, accounting. and

maintenance of district projects. A

“2. Revise and sign all reports rendered to the Central offices of the

Housing Program related to different stages of work in the district.

“3. See to it th all the norms and regulations are complied with and

implemented in a.cordance with the policies of the Housing Program

“4. Inform and advise district personnel on any changes in the norms and

regulations. -

“5. Revise and approve all reports concerning changes in rent, reports

rendered to the federal agency, other government agencies and the central

offices; accounting reports, purchase orders, disbursements, requisitions.

preliminary budget of regular and special maintenance work , and the opera-

A79

policies, or the recepient of such benefits. The only clear way to

approach any application should be the need for housing and any

other deserving factors of the case. Political affiliation is foreign

to the process of eligibility. The following pronouncement is

applicable:

[W]e may reasonably conclude that the hiring authority (the

government) must bring evidence to show that the employee's

particular political affiliation is an “appropriate requirement” for

tional budget of the district and any other report concerning the different

operational stages in the district.

“6. Appear in representation of URHC in meetings with other gov-

ernmental officers or civic leaders in the community, with the purpose of

discussing and coordinating the implementation of social, economic, and

health services, etc., offered to residents of public housing.

“7. Draft reports. in English or Spanish. to be submitted to the Program's

Central Offices, the Executive Director. other governmental agencies, me

governor's office, etc.

“8. Draft correspondence. in English or Spanish, for his own signature,

and for the signature of the Program's Associate Director or the signature of

the Executive Director.

“9. Make recommendations on personnel recruitment, dismissals, salary

raises and other matters related to the District employees.

“10. Receive and attend to residents or the general public, in cases that

pose difficult problems that could not be settled at a lower level.

“11. Carry out periodical meetings with his supervisory personnel to

advise them on changes in norms and regulations, notify new work

guidelines, evaluate the work carried out, and establish work priorities and

other related priorities.

“12. Make frequent visits to district housing projects to make sure that

their operations are adequate. -

“13. Hold periodic meetings with the Housing Program's Associate

Director to discuss complex problems related with District operations.

“14. Attend all telephone calls to receive or give information concerning

District operations. .

‘15. Carry out any other special task assigned.”

A80

the effective discharge of the public office in question; that is to

say. the Government must establish the existence of government

interests that rank above the employee’s rights under the First

Amendment.

In the case at bar, the Government failed to establish this.

Ramos, supra at 516.

On the other hand, the highly charged political climate that

unfortunately prevails in our country and permeates all gov-

ernmental functions prevents us from discarding the possibility

that, in a specific case, an employee not affiliated with the

political party in power may turn his back on the requirements of

his functions as a public servant. If the situation should arise, the

determination as to the validity of his removal or dismissal should

be made while taking into consideration, among other circum-

stances — and aside from the fact that he may be a confidential

employee — the opportunity that he has had under the new

administration to show, within a reasonable term, that his compe-

tence. efficiency, and loyalty to public service axioms have not

been affected and are above his personal political preferences.

Ill

The courts must break the trend and vicious circle established

on the island, of substituting government personnel, after each

general election, on grounds foreign to a sound public. administra-

tion; the political patronage and spoils system. Olivieri Morales,

supra. The scenario recurs each time there is a change in the

political party in power. The adverse consequences are fatal and

alarming: the reduction in funds is substantial. It is a judicially

recognized fact that payment of these types of judgments results

in a financial crisis and have a negative impact on the budget. It

constitutes a substantial detouring of public funds in detriment to

the essential public services, independently from the recipient's

political affiliation. The courts must exhaust all resources to

design dissuasive remedies.*

On the grounds cited above, judgment shall be rendered revers-

ing the judgment of the San Juan Superior Court of October 19,

3 The situation is critical and calls for an urgent remedial judicial creativity.

A8]

1983, and declaring the removals null. When said court provides

the compensation for back pay it shall make the corresponding

deductions for salaries, taxes, social security, retirement, and

others. See Estrella v. Mun. de Luquillo, 113 D.P.R. 617 (1982);

Municipio de Mayaguez v. Rivera, 113 D.P.R. 467 (1982). It shall

also deduct whatever other amounts are proper in the particular

circumstances of this case.

The case is remanded to the trial court for further proceedings

consistent with this opinion.

In this case the trial court dismissed the complaint. The complaint

was brought solely against URHC and the officers, in their official

Capacity. not personally. For such reason, said forum did not draw

any findings as to whether or not they acted in bad faith and with

total disregard for tne constitutional and civil rights, nor did it

provide other remedies, question on which we need not pronounce

ourselves at this time.

JM/ba

CHIEF CLERK’S CERTIFICATE

I, Lady Alfonso de Cumpiano, Chief Clerk of the Supreme

Court of Puerto Rico, DO HEREBY CERTIFY:

That the annexed document is a photocopy of the official

translation from Spanish into English (said translation having

been made under the authority of Act No. 87 of May 31, 1972) of

the opinion rendered by this Court on June 4, 1984, in case No.

R-84-29, Colon et al. v. Urban Renewal and Housing Corp., the

original of which, in Spanish, is under my custody in this Office.

IN WITNESS WHEREOF, at the request of the interested

party, and upon payment of the corresponding fees, I have

hereunto set my hand and affixed the seal of this Court in San

Juan, Puerto Rico, this 3rd day of September 1985.

Lady Alfonso de Cumpiano

Chief Clerk

Supreme Court of Puerto Rico

A82

A83

APPENDIX L

PUERTO RICO PUBLIC SERVICE PERSONNEL ACT

SECTIONS 2.1 AND 2.2, AS AMENDED,

3 L.P.R.A. 1311 TO 1312

3 L.P.R.A. § 1311. Public policy—Contents

The public policy of the Commonwealth of Puerto Rico

with regard to the public service personnel is as hereinbelow

set forth:

(1) To establish merit as the principle that shall govern the

entire public service, so that it is the fittest who serve the

Government and that every employee be selected, trained,

promoted and retained in his employment in consideration

of his merit and ability, without discrimination by reason of

race, color, sex, birth, age, origin or social condition or

political or religious ideas.

(2) To the end of assuring the extension and strengthening

of the merit principle to all sectors of the Puerto Rican

public service, all public employees, whether they are

commonwealth or municipal employees with the exception

of those excluded in section 1338 of this title, shall be

covered by a single personnel system, established to enforce

the merit principle, which shall be known as the Public

Service Personnel System.

(3) To establish a Personnel Administration System con-

ceived, structured and administered consistently with the

participation of the employees, including collective bargain-

ing, and with an internal dynamics that may permit and

encourage its continuous self-renewal.

(4) The Personnel Administration system shall be divided

into the Central Administration, which shall be under a

Central Personnel Administration Office, and the Individual

Administrators mentioned in this chapter.—Oct. 14, 1975,

No. 5, p. 720, § 2.1.—Amended July 17, 1979, Nc 1, p.

901, § 1, eff. July 17, 1979.

A8&4

3 L.P.R.A. § 1312. —Objectives

Through the application of the public policy above stated,

it is sought to attain as a goal the highest levels of excel-

lence, efficiency and productivity in the public service, by

achieving the following objectives:

(1) To attain that the public administration be governed by

criteria of the utmost uniformity, equity and justice.

(2) so maintain a climate of harmony and satisfaction in

the work, that may redound in a high degree of motivation

and spirit of service among the employees.

(3) To maintain the continuity and regularity in the ren-

dering of public services.

(4) To attain as a maximum aspiration the rendering of

public services that may tend to attain and assure the con-

tinuous socioeconomic development of Puerto Rico, the

highest degree of social justice and the full enjoyment of the

rights consecrated in the Bill of Rights of our Constitution.

(5) To assure that the government has adequate means,

through the wise and restricted use of the confidential serv-

ice, to implement the public policy validated by the major-

ity at the same time that the career service is protected as a

basic institution of the public service.

(6) To offer to the employee, mechanisms of participation

that may tend to attain a climate of harmony and efficiency.

(7) To offer equal employment opportunity to persons

who are socially, culturally or economically disadvantaged

and to minority groups.—Oct. 14, 1975, No. 5, p. 720, §

2.2.—Amended July 17, 1979, No. 1, p. 901, § 2, eff. July

17, 1979.

A85

APPENDIX M

PUERTO RICO PUBLIC SERVICE PERSONNEL ACT

SECTION 5.3, AS AMENDED,

3 L.P.R.A. 1343

3 L.P.R.A. § 1343. Individual Administrators

The following agencies shall be Individual Adminis-

trators:

All agencies which are at present in the exempt or non-

competitive service. The following shall likewise be Indi-

vidual Administrators:

(1) Every standing committee, or any committee

created for an indefinite period to consider specific situa-

tions or to carry out special studies.

(2) Each of the municipalities of the Commonwealth of

Puerto Rico.

(3) Every agency included by special law in the exempt or

noncompetitive service, pursuant to the provisions of Act

No. 345 of May 12, 1947, as amended, known as the

Personnel Act, or of special laws.

(4) Teaching personnel of the Department of Education.

(5) Police of Puerto Rico.

(6) Planning Board.

Every subdivision or program of any agency not included

in the preceding list, which by special law may have been

included in the exempt or noncompetitive service pursuant

to the provisions of Act No. 345 of May 12, 1947, as

amended, known as the Personnel Act, or of special laws,

shall be considered as part of the agency for the purposes of

constituting a single Individual Administrator, or to belong,

as a whole, to the Central Administration, as the case may

be.—Oct. 14, 1975, No. 5, p. 726, § 5.3; June 7, 1977, No.

49, p. 105, § 3, eff. June 7, 1977.

(8) The International Banking Center Regulatory

A86

Board.—Amended July 2, 1980, No. 16, p. 911, § 25, eff.

July 2, 1980.

(9) The Office of the Commissioner of Financial

Institutions. —Amended Oct. 11, 1985, No. 4, p. 919, § 22.

eff. Oct. 11, 1985.

*This section, as amended in 1980, contained no subsection (7).

A87

APPENDIX N

PUERTO RICO PUBLIC SERVICE PERSONNEL ACT

SECTIONS 5.9 TO 5.11, AS AMENDED,

3 L.P.R.A. 1349 TO 1351

3 L.P.R.A. § 1349. Services and categories

There shall be two services: career and confidential;

therefore there shall be career employees and confidential

employees. The Director shall issue the general standards

that will govern the confidential service personnei adminis-

tration throughout the Personnel System.

3 L.PR.A. § 1350. Confidential employees

Confidential employees are those who intervene or

collaborate substantially in the formulation of the public

policy, who advise directly or render direct services to the

head of the agency, such as:

(1) Officers appointed by the Governor, their personal

secretaries and drivers; as well as their executive and admin-

istrative assistants who answer directly to them.

(2) Heads of agencies, their personal secretaries and

drivers; as well as their executive and administrative assis-

tants who answer directly to them.

(3) Assistant heads of agencies and their personal sec-

retaries and drivers.

(4) Regional directors of agencies.

(5) Personal secretaries and drivers of officials selected

by popular election as well as their assistants who answer

directly to them.

(6) Members of boards or standing committees ap-

pointed by the Governor and their respective personal sec-

retaries.

(7) Members and personnel of boards or commissions

appointed by the Governor having a specific period of

effectiveness.

A88

(8) Personnel of the offices of the Puerto Rico Ex-

Governors.

- Confidential employees shall be of free selection and

removal. Likewise confidential shall be those employees

who though of free selection may be removed only for good

cause by provision of law or those whose appointment is for

a term pre-fixed by law.

Every regular employee in a career position who is

appointed to a confidential position shall be entitled to be

reinstated in a position equal or similar to the last one he

held in the career service.

3 L.P.R.A. § 1351. Confidential positions, approval

(1) Each agency shall present for approval of the Office

a plan containing the confidential positions by which it

desires to operate. In the case of municipalities, the Munici-

pal Assembly shall follow the ordinance or resolution ap-

proving the plan submitted by the mayor and shall send it to

the Office for the sole purpose of ascertaining that the

provisions of section 1350 of this title have been complied

with.

(2) The Office shall only intervene to determine if the

plan on confidential positions complies with the provisions

of section 1350 of this title.

(3) The Office may not approve more than 25 confiden-

tial positions for the same agency, except for those that due

to their organizational structures, functional complexity or

size require a larger number of confidential positions for

their efficient operation.

(4) Any agency interested in increasing or reducing the

number of confidential positions shall submit the plan to the

Office, which shall intervene only for the purposes of see-

ing that the criteria established by section 1350 of this title

are complied with.

A89

APPENDIX O

PERSONNEL REGULATIONS OF THE URBAN RENEWAL

AND HOUSING CORPORATION (CRUV)

(Translation. )

SECTION 4.2:

“The trust and confidence service will include the follow-

ing types of function:

1. Formulation of public policy.

This function will include the responsibility, direct or

delegated, for the adoption for standards or norms for

program content, eligibility criteria, agency opera-

tions, relations outside the agency, and other essential

aspects for the management of programs or agencies.

It will also include the participation, to a substantial

and effective degree, in the formulation, modification

or interpretation of those functions in the administra-

tion or for direct counseling to the agency head,

through which the employee can effectively influence

public policy.

2. Direct services to the Agency head that require a high

degree of personal trust.

The element of personal trust in this type of service is

indispensable. The nature of the work corresponds

essentially to the career service, but the personal trust

factor is prevalent. The work can include secretarial

services, the keeping of confidential files, automobile

driving, and other similar tasks. In this type of job

there is always present the elements of confidence,

trust and security in relation to persons, programs or

public functions.

| ideaaiieraaiiniimaieieaiaimemeaielllae

A90

Functions whose trust and confidence nature is estab-

lished by Law.

The incumbent of a position assigned such functions,

though of free selection, can only be removed based

on the causes established by the law that created the

position, and its tenure will extend through the full

term of nomination, according to said law.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.