Defendant Eugene Hickey. Another candidate, James B. McNulty, was running on a sticker-type write-in campaign. It was common knowledge among the city's political community that Plaintiffs actively supported and worked for the McNulty campaign. When McNulty lost and Hickey won, the latter held discussions in late 1977 and early 1978 regarding potential replacements for the positions of Superintendents of Refuse and Highways. These discussions included the Director of the Department of Public Works, Gaynor Cawley, who eventually discharged the Plaintiffs. The testimony at trial clearly indicated that the Plaintiffs' continued employment was in jeopardy from the day that it appeared that Hickey had won the election.
In early February 1978 a heavy snowfall struck the East coast including the Scranton area. On February 6, 1978 a snow emergency was declared in the city. Loughney returned home on the morning of February 7 at 1:00 a.m. He had been at his work the entire preceding day from approximately 6:00 a.m. Osborne began work on February 6 at about the same time and returned home at 8:00 p.m. that evening. On the morning of February 7, 1978, both Plaintiffs awoke and prepared to go to work at the regular times. They were unable to get to City Hall because another snowstorm had struck Scranton during the night. Plaintiffs called their offices and requested that vehicles be sent to their homes to pick them up. Unable to get to work without proper vehicles, the men remained at home waiting to be picked up by city vehicles. Both Plaintiffs had further communications with their offices, renewing their requests for emergency transportation.
The snowstorm crippled the entire East coast and the Scranton area. Many offices and businesses were closed because of it. A very high number of the city of Scranton's employees could not report to work on February 7, 1978 because of the heavy accumulation of snow.
Between 12:00 noon and 2:00 p.m. on the afternoon of February 7, 1978 Fred Schemelfenig arrived at each of the Plaintiffs' homes in a M-A-S-H ambulance loaned to the city by the National Guard. Schemelfenig delivered to each Plaintiff a letter of dismissal effective February 10, 1978. The letter was signed by Cawley and contained no reasons for the dismissal. Cawley testified that he was unaware of the phone calls Plaintiffs made to their offices that morning. Cawley failed to attempt to contact Plaintiffs to find out why they were absent. No investigation was made, no reprimand issued, and no questions were asked of the Plaintiffs. At no time prior to February 7, 1978 had either Loughney or Osborne been reprimanded, disciplined, or otherwise warned about unsatisfactory job performance.
Cawley testified that the reason Loughney and Osborne were discharged was for failure to report to work during a snow emergency. No other employee of the city had been discharged for not reporting to work that day but all other Bureau chiefs did report. When Loughney applied for unemployment compensation, the city did not contest the approval of the application on the basis of discharge for cause.
We agree with Plaintiffs when they suggest to us that we must face two principal issues. First, we must decide whether Plaintiffs were discharged from their positions as municipal employees solely because of their political affiliations and beliefs or whether they were discharged for cause. Second, we must decide whether Loughney and Osborne are protected from political firing by the First Amendment as described by the United States Supreme Court in Elrod v. Burns, supra, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Because we need not reach the Elrod issue if we find that Plaintiffs were discharged for cause, we will address that issue first.
B. Discharge for Cause or for Political Belief
The overwhelming impact of the testimony convinces us that Plaintiffs Loughney and Osborne were discharged from their superintendent positions because of their political affiliations and beliefs. The widespread notoriety caused by their activities for McNulty could not have escaped the Hickey staff. The comments exhibiting surprise that Plaintiffs had continued their employment with the city under the Hickey administration until February 1978 indicate the political atmosphere surrounding their final discharge. See T-105, 242, 243, 479, 480 and 491. We simply cannot look at the discussions held between Hickey and Cawley in late 1977 and January 1978 and believe anything other than that Plaintiffs' days were numbered.
It may very well be that the severe snowstorm of 1978 and Plaintiffs failure to get to work on February 7, 1978 hastened the ultimate date of discharge. It is apparent to us, however, that the storm merely led to an earlier Time of discharge and did not lead to the discharge itself. The decision to replace Loughney and Osborne had been made, we are convinced, some time before February 7, 1978. Loughney's powers and authority had already been partially usurped, first by his transfer to the Department of Community Development and later, upon his return to Highways, by a union member who had taken over responsibility for the Bureau. We hold therefore that the decision to discharge Loughney and Osborne from their positions as municipal officials was made sometime prior to February 7, 1978 and was based on their political affiliations, activities, and beliefs.
C. Elrod's Protection Against Political Firing
In 1976, the year of the 200th anniversary of our country's political birth, the United States Supreme Court struck a blow at the roots of the political patronage system in the decision of Elrod v. Burns, supra, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). Although unable to agree on the precise rationale for the holding, five Justices agreed that patronage dismissals violate the First and Fourteenth Amendments. Dismissal of government employees because of their political affiliations and beliefs is unquestionably a violation of their First Amendment rights to freedom of association. 427 U.S. at 356-57, 96 S. Ct. 2673, 49 L. Ed. 2d 547. The Court recognized, however, that an imposition on government employees' First Amendment rights might be permitted for appropriate reasons.
In short, if conditioning the retention of public employment on the employee's support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.
427 U.S. at 363, 96 S. Ct. at 2685 (footnote omitted).
Although the Court found that patronage firing did further a vital government objective by a least restrictive means, the Court was divided in its holding. The plurality opinion of Justice Brennan
limited patronage dismissals to government employees in "policymaking positions". 427 U.S. at 367, 96 S. Ct. 2673, 49 L. Ed. 2d 547. Justice Brennan regarded non-policymaking employees as having only limited responsibility without power to thwart the goals of the in-party.
When the Court issues a decision in which a majority of the Justices fail to agree on a single opinion, lower federal courts must interpret it on the basis of the narrowest ground of agreement of a majority of the Justices. Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). Justice Stewart's concurring opinion in Elrod
regarded the issue as "whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs." 427 U.S. at 375, 96 S. Ct. at 2690 (Stewart, J., concurring). Because the concurring opinion added the element of "nonconfidential", most federal courts have regarded it as narrower than the plurality opinion and have followed it as the governing law. See, e.g., Stegmaier v. Trammell, 597 F.2d 1027, 1033-34 (5th Cir. 1979) (and cases cited therein); Alfaro de Quevedo v. de Jesus Schuck, 556 F.2d 591, 592 n.2 (1st Cir. 1977); Ramey v. Harber, 431 F. Supp. 657 (W.D.Va.1977), Aff'd in part, rev'd in part, 589 F.2d 753 (4th Cir. 1978).
The only government interest regarded as sufficiently vital by the Court to permit the denial of First Amendment rights is "the need for political loyalty of employees (so that) representative government (will) not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." 427 U.S. 347, 367, 96 S. Ct. 2673, 2686, 49 L. Ed. 2d 547 . The interpretations of what is covered by that government interest have led to numerous court decisions construing "nonpolicymaking, nonconfidential government employee". The courts split over whether the test is conjunctive or disjunctive, i. e., whether an employee who is "confidential" Or "policymaking" is beyond First Amendment protection, or whether the employee must be "confidential" And "policymaking".
Although neither party before us chose to refer us to the decision, the Third Circuit approached this question in Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir. 1977). The court reviewed a grant of summary judgment in favor of the defendants in a political firing matter and reversed the district court. The court admonished the lower court for making findings of fact between conflicting evidence in a motion for summary judgment. Judge Aldisert dissented from this decision because he believed that the patronage system should be left as unfettered as possible. He argued strongly for the ability of governing individuals to dismiss nonpolicymaking, confidential employees because of their political affiliations. 555 F.2d at 396-97 (Aldisert, J., dissenting). The pleadings indicated, he believed, a clear record of the nature of the plaintiff's employment. Judge Aldisert believed that the plaintiff was unquestionably a confidential employee and was therefore vulnerable to political firing under the disjunctive approach to the Elrod test of Justice Stewart.
The majority opinion in Rosenthal disagreed with the disjunctive interpretation of the Stewart test and construed the test as requiring consideration of Both conditions:
It is true that Mr. Justice Stewart's concurrence in Elrod refers to a "nonpolicy making (sic), nonconfidential government employee". 427 U.S. at 375, 96 S. Ct. at 2690. In our view the additional adjective nonconfidential does not change the basic thrust (of) the plurality opinion, which is directed at policy Formulation and representative government. A "confidential government employee" in this sense would not necessarily be one . . . who has covert activities as part of his duties, but instead one who is privy to the discussions and information involved in the policymaking process.