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FARKAS v. THORNBURGH

UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF PENNSYLVANIA


June 12, 1980

ANDREW A. FARKAS, ANTHONY J. ROTONDI, FRANK P. ENEA, JAMES S. BAILONI, ANTHONY J. CIARELLI, PAUL H. GOODEMOTE, THOMAS A. COCO, THOMAS K. FRIEL, JOHN C. HAMMERLE, CHARLES L. DOMSON, EDWARD J. SPARAGA, JOHN MILLIRON, HAROLD A. SMITH
v.
RICHARD THORNBURGH, individually and in his capacity as Governor of Pennsylvania, HOWARD A. COHEN, individually and in his capacity as Secretary of Revenue for the Commonwealth of Pennsylvania, MARILYN W. STRODE, individually and in her capacity as Chairperson of the Lancaster County Republican Committee, and the LANCASTER COUNTY REPUBLICAN COMMITTEE, BETTY GARDNER, individually and in her capacity as Chairperson of the Lycoming County Republican Committee, and the LYCOMING COUNTY REPUBLICAN COMMITTEE

The opinion of the court was delivered by: TROUTMAN

MEMORANDUM

Orating to the United States Senate early in 1832, William Learned Marcy *fn1" of New York quipped "To the victors belong the spoils of the enemy!". *fn2" Unwittingly, he captured in this ben trovato apostrophe the common misunderstanding of the practice of patronage, *fn3" which Thomas Jefferson, a Republican, *fn4" first used as strategy to conciliate the then recently displaced Federalist party. *fn5" Andrew Jackson later accepted patronage as an effective measure to propitiate dissenters and consolidate factions in the still nascent and undisciplined Democratic party. *fn6" Abraham Lincoln, who used patronage much more extensively than either Jefferson or Jackson, found distribution of public offices an effective means to guarantee party, and therefore national, unity. *fn7" Although deprecated by many critics, *fn8" the practice of patronage thrived and survived reform measures calculated to curb its flagrant abuse during the Gilded Age *fn9" to become an accepted part of the American political process. *fn10" However, recently reviewing the constitutionality of the practice, the Supreme Court of the United States concluded that in certain circumstances patronage offended the First Amendment aegis of political expression and association. *fn11" Expressing this notion in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976) and more recently in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Court held generally that employees may not be discharged solely for political reasons.

 Plaintiffs, *fn12" thirteen district administrators for the Department of Revenue of the Commonwealth of Pennsylvania, instituted this action January 17, 1980, seeking injunctive relief against the Governor of Pennsylvania and the Secretary of Revenue. *fn13" Initially, plaintiffs requested a temporary restraining order enjoining defendants from terminating employment of several plaintiffs who had not been removed from office and to require reinstatement of plaintiffs who already had been discharged. The parties agreed that a prompt hearing sur plaintiffs' motion for a preliminary injunction would obviate the need for more immediate relief, whereupon the Court scheduled the hearing for January 30, 1980. The Court denied the motion for a preliminary injunction upon finding that plaintiffs failed to demonstrate either a "reasonable probability of eventual success on the merits", Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 356-57 (3d Cir. 1980), or irreparable injury. Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917 (3d Cir. 1974). Cf. Punnett v. Carter, 621 F.2d 578, 583 (3d Cir. 1980) (plaintiffs failed to show "any likelihood that they would prevail on the merits"). The Court also weighed harm to the non-moving party and the public generally if the injunction issued. Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589 (3d Cir. 1979). *fn14" Thereafter, the Court set March 3, 1980, as the date for the hearing sur plaintiffs' motion for a permanent injunction. At plaintiffs' request the Court continued the matter until March 10, 1980, then until April 8, 1980, and again until April 21, 1980, to allow plaintiffs to complete discovery which they represented to the Court as indispensable to their case. Finally, on April 23, 1980, the parties proceeded to the merits before the Court sitting without a jury. *fn15" Notwithstanding the intervening discovery, plaintiffs offered no additional testimony and relied exclusively upon numerous documents which they moved into evidence. Defendants called only the Secretary of Revenue to testify and thereafter rested. The matter is presently before the Court for findings of fact and conclusions of law, which follow.

 To prevail in an action under Elrod v. Burns and Branti v. Finkel, supra, plaintiffs must show that the Secretary discharged them solely for the reason that they were not affiliated with the Republican party. Branti v. Finkel, 445 U.S. at 517, 100 S. Ct. at 1301, Elrod v. Burns, 427 U.S. at 350, 96 S. Ct. at 2678. However, if political affiliation would interfere with the efficacious performance of their public duties, employees may be dismissed on this basis with impunity. Branti v. Finkel, 445 U.S. at 517, 100 S. Ct. at 1301, Elrod v. Burns, 427 U.S. at 366, 96 S. Ct. at 2686. Defendants conceded that party affiliation was not a necessary prerequisite to the effective discharge of the duties assigned to district administrators. See Branti v. Finkel, 445 U.S. at 518, 100 S. Ct. at 1295. Therefore, the relevant inquiry requires determination of whether defendants discharged plaintiffs solely because of their affiliation with the Democratic party or whether defendants "lack(ed) confidence" in the dismissed district administrators whom they "inherited" from the prior administration and "for some reasons other than political affiliations" terminated their employment. Branti v. Finkel, 445 U.S. at 520 n. 14, 100 S. Ct. at 1295 n. 14. Cf. Elrod v. Burns, 427 U.S. at 366, 96 S. Ct. at 2686 ("employees may always be discharged for good cause, such as insubordination or poor performance, if those bases in fact exist"). In other words, if a legitimate apolitical motivation prompted plaintiffs' dismissals, defendants were at liberty to discharge them.

 To demonstrate political motivation in the case at bar, plaintiffs relied upon statistical information which indicated that the Secretary hired seventeen Republicans and retained or hired a total of only twelve Democrats to fill the thirty-two vacancies for the district administrator position. *fn16" True, motivation may be proven by adducing statistical information, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), *fn17" but the statistics provided by plaintiffs do not establish discharge solely because of political affiliation. If these statistics prove any fact, they demonstrate that the Secretary did indeed disregard political persuasion and instead relied upon candidates' merits and qualifications.

  Plaintiffs also pointed to several other facts, such as prior active participation in local Republican politics by several appointees. The Secretary responded to a question relating to this matter:

 

Q. Well, it is true, isn't it, that some of the replacements were active in politics?

 

A. It is also true . . . that while they are in the Department of Revenue, they are not . . . That is not exactly what the new Department of Revenue is about.

 Plaintiffs also emphasized the fact that one appointee's uncle presently serves as a state senator. The Secretary testified that he did not know of this family connection. None of these items, alone or in concert, demonstrate that the Secretary fired plaintiffs for political reasons only. Moreover, even assuming that in the particular circumstances described above the Secretary harbored a politically spawned animus toward some replaced plaintiffs, where the primary impetus for removal lacked impermissible motivation a possibly illegitimate motive incident thereto will not vitiate otherwise legal conduct. A political firing violates the interdictions of the First Amendment only when the employing authority dismisses an employee "solely for political reasons." Branti v. Finkel, -- - U.S. at -- , 100 S. Ct. at 1301, Elrod v. Burns, 427 U.S. at 350, 96 S. Ct. at 2678. *fn18" In other words, an independent justification coupled with a constitutionally flawed reason will not taint the Secretary's decision to terminate plaintiffs' employment. See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977). *fn19"

  Therefore, again assuming that political motives inspired plaintiffs' dismissal, the situation would remain dramatically different from the firings adjudicated in and proscribed by Elrod v. Burns and Branti v. Finkel, supra. In Elrod a newly elected Democratic sheriff discharged numerous non-civil service employees within the department because they lacked or failed to obtain affiliation with or sponsorship by the Democratic party. Defendants made no attempt to justify their actions on the basis of merit selection of replacements. In Branti a newly appointed Democratic public defender terminated employment of the Republican assistants remaining from the prior administration because they had not been recommended or sponsored pursuant to prevailing Democratic party procedures. The trial court found the party organization and its carefully prescribed procedures dictated the array of candidates from which the new public defender could select his assistants and, therefore, concluded that no non-discriminatory justification existed. Finkel v. Branti, 457 F. Supp. 1284 (S.D.N.Y.1978). In sharp contrast, in the case at bar the Secretary exercised unfettered discretion in attracting recruits for appointments as district administrators. In fact, the procedure he employed in replacing some of the prior district administrators, including, for example, solicitation of recommendations from a broad spectrum of sources and use of uniform evaluations forms for all interviewed candidates, suggests that the Secretary acted in accordance with his articulated diligence and sincerity in recruiting and hiring competent and responsible individuals for the position of district administrator.

 In addition, the factual background of his actions amply indicate the apolitical nature of his conduct and motives. Appointed to his position in February 1979, the Secretary immediately evaluated the operation of the Department of Revenue and concluded that both a reduction in managerial positions and an upgrade in the qualifications for the office of district administrator would enhance efficiency within the department. In accordance with this goal, the Secretary announced a reorganization of the departmental field offices. The Secretary abolished fifty-one of eighty-three managerial field positions, leaving thirty-two to be filled. Eliminating these many opportunities to dispense political favors hardly comports with plaintiffs' characterization of the Secretary as a proponent of strictly partisan politics.

 Because district administrators, the highest ranking Revenue Department field officials, interpret and enforce tax laws, advise the Secretary on matters relating to tax policy, develop and install implementing and resource allocation policies for the district offices, recommend hiring and firing of subordinates and legal actions against taxpayers, allocate work forces to emphasize particular tax problems within the district, organize and direct tax programs, and advise taxpayers, the Secretary established several minimum requirements for the job. To be considered for employment, a candidate was required to have three years' experience in office management and a bachelor's degree or an equivalent combination in experience and training. Other desiderata included an "ability to plan, organize and direct the work of others", an "ability to exercise judgment and discretion in applying and interpreting departmental policies and procedures" and an "ability to develop, install and evaluate policies and procedures". In two words, the Secretary's, the salient characteristics of a district administrator he intended to employ were "integrity" and "quality". *fn20"

  Meanwhile, the Secretary advised the incumbent district administrators that he would retain them temporarily pending "an intensive effort to recruit and select the best qualified personnel" for all of the vacant positions. The Secretary further informed incumbents that he would solicit applications from the general public as well as from them in order to ensure that the most qualified people would be considered. After soliciting applications and recommendations from numerous organizations such as the AFL-CIO, Dickinson School of Law, NAACP, the Urban League, bar associations, accounting groups, colleges of business and public administration, and every Representative and Senator in the General Assembly of the Commonwealth of Pennsylvania, the Secretary and his staff interviewed approximately two hundred persons. *fn21" This endeavor resulted in the reappointment of eleven incumbent Democratic district administrators and the selection of a Democrat to replace a prior administrator who resigned. Several Democratic district administrators whom the Secretary appointed later changed registrations, *fn22" and another Democrat whom the Secretary selected initially accepted but later declined an appointment. The Secretary testified that he made no inquiry into candidates' political affiliation and that membership in the Republican party was not a prerequisite to appointment. See Tanner v. McCall, 441 F. Supp. 503 (M.D.Fla.1977). In fact, the Secretary appointed or retained persons with outstanding qualifications. For example, the Secretary appointed as district administrator in Philadelphia a graduate of St. Joseph's Preparatory College, Pennsylvania Maritime Academy, St. Joseph's College and Temple University School of Law. In addition to degrees in business administration and law, this new appointee was a licensed professional city planner in New Jersey and a licensed real estate broker in Pennsylvania. Prior to six years of private practice in law, he was vice president of a community development corporation and coordinated land use research. Earlier he served as executive vice president and general counsel to a consulting firm which specialized in city planning, urban design, real estate, urban renewal and public administration. This new administrator also was a rear admiral in the United States Naval Reserve.

 In the same office the Secretary also appointed another Philadelphia attorney who acted as Special Attorney General for the Commonwealth of Pennsylvania in the Inheritance Tax Unit in Philadelphia from 1963 until 1971. A graduate of the University of Pennsylvania with a Bachelor of Science degree in economics and the Temple University School of Law with a Juris Doctor degree, this particular appointee has lectured on law, including insurance and business law, at the Wharton School of Business, University of Pennsylvania, since 1964. Other appointees-retainees studied at or obtained degrees from Columbia University, St. John's University, Cornell University, Temple University, Duquesne University, the University of Delaware and the University of Pennsylvania. Several had graduate degrees; one was a doctoral candidate at the Pennsylvania State University. Prior work experience included a Register of Deeds from Chester County, an appraiser in the real estate division of the Crawford County Assessors Office (and formerly a chief appraiser with the Pennsylvania Department of Revenue's inheritance tax division), an attorney who spent nearly thirty years with the Federal Bureau of Investigation and whom his supervisor described as a "very astute and intelligent administrator", an industrial development coordinator for McKean County (who previously had been an operations officer for the McKean County Housing Authority and assistant chief clerk to the McKean County commissioners), the Chief Clerk of the Northumberland County Commissioners, a former tax consultant and field investigator for the Pennsylvania Department of Revenue (Bureau of Taxes for Education), the Clerk of Court in Montgomery County (previously an appraiser with the Pennsylvania Department of Revenue), a financial analyst who had previously been director of personal property taxes in Erie County, a claims adjuster for the State Workmen's Insurance Fund, an executive director of the Area Transportation Authority of Northcentral Pennsylvania (and a retired Lieutenant Colonel in the United States Army), a tax collector in Schuylkill County, an accountant with over ten years' experience, a deputy district collector with the Internal Revenue service, and an adjunct professor of tax at Temple University's accounting department.

 Several new appointees had extensive experience within the department. For example, the district administrator in the Harrisburg office served as Acting District Administrator in the Department of Revenue's Bureau of Field Operations (1978-1979), worked in the assignment unit of the investigation division (1978), and served as field chief in the Personal Income Tax Bureau (1976-1978), chief of Audit and Compliance Division in the Personal Income Tax Bureau (1972-1974), chairman of the Sales Tax Board of Review, Bureau of Sales and Use Tax (1961-1972), hearing examiner, Sales Tax Board of Review (1959-1961), and as an accountant with the Bureau of Sales and Use Tax, Hotel Occupancy Division (1957-1959).

 In contrast, district administrators whom the Secretary did not retain often did not have a college degree; some had only high school training. A few started additional education but did not graduate. Prior work experience typically included jobs as plant managers or production supervisors. Many had received from the personnel director of the department notice which expressed "considerable disappointment" with their performances. The director questioned "just how intensely and meaningfully" each one had been involved in the administration of his district office. Performance evaluation reports often indicated that their work had been of "average quality and consistency". One district administrator whom the Secretary did not retain listed as a reference a state senator, who responded to the Secretary's inquiry with "a singularly unimpressive, non-supportive recommendation" of the particular district administrator. He had, as the Secretary phrased it, "good reason to be modest". The Secretary further commented that "poor" and "sloppy" management, lack of leadership, low employee morale and lack of "astute awareness of the taxation laws and regulations" implemented by district administrators characterized the stewardship of many district administrators whom he did not retain. And at least two incumbents he refused to rehire had histories of previously unsatisfactory employment demonstrating a lack of "ambition and proper attitude toward doing (their) share of work".

 Worse, several had been implicated in criminal mischief or accused of malfeasance in office. In one case, the Pennsylvania Department of Justice filed charges against a district administrator whom the Secretary discharged for making false entries on the register of the Personal Income Tax Bureau. Eventually, the administrator in question entered an Accelerated Rehabilitation Disposition program with the imprimatur of the local District Attorney and Court of Common Pleas. In another instance, the Federal Bureau of Investigation and the internal investigating unit of the Department of Revenue investigated a number of people in the office of one district for criminal conduct relating to burying records of sales tax duly owed the Commonwealth. Although to date the investigation has not been completed, the Secretary indicated that mismanagement, if not criminal misconduct, pervaded the operation of the office. The Secretary also expressed a particularly strong interest in correcting apparent abuses within the Philadelphia office, which he said had the "most notorious" reputation with a "very sordid and bleak history, both with respect to raw competence and . . . allegations of, if not political corruption, something bordering very close thereto".

 Clearly, the Secretary replaced district administrators whose personal and professional records indicated substandard performances with optimally qualified individuals with demonstrated competence and ability. Notwithstanding extended discovery over a period of months, plaintiffs have offered no credible evidence to support their allegations that the Secretary discharged them because they were registered Democrats. In fact, defendants have amply proven that the Secretary removed plaintiffs because he understandably and properly "lacked confidence" in their ability and competence. See Branti v. Finkel, 445 U.S. at 520, n.14, 100 S. Ct. at 1295. Accordingly, the Court finds and concludes that plaintiffs have failed to show by a preponderance of the evidence under Branti v. Finkel that defendants discharged them solely because of their political affiliation. Were Elrod v. Burns the appropriate standard, a contention not raised by the parties, a similar conclusion would be warranted. *fn23" Judgment will be entered in favor of defendants and against plaintiffs.

 The foregoing shall constitute the Court's findings of fact and conclusions of law.

 APPENDIX

 Plaintiff Farkas testified as follows:

 

Q. (Y)ou did, in fact, establish daily procedures, didn't you?

 

A. Yes, to the guidelines as set down by my administrators in Harrisburg.

 

Q. (Y)ou were responsible for the level of efficiency in your district, weren't you?

 

A. Yes, sir. We all were.

 

Q. (Y)ou had to employ your discretion from time to time in deciding how to handle any given case?

 

A. Yes, sir

 

Q. You had some discretion in making assignments of the men in your staff to their jobs?

 

A. Yes, sir.

 

Q. (Y)ou as the district administrator used your discretion in carrying out your duties and decided that in order to successfully accomplish the guidelines, that you would assign your men geographically?

 

A. Yes, sir.

 

Q. Isn't it true, Mr. Farkas, that whether or not to send someone to the field to a state fair was the individual decision of the district administrator?

 

A. Yes, it was.

 

Q. You did in your management capacity negotiate hiring, firing and retirement for some of your employees?

 

A. Retirement, no.

 

Q. Now, is this application you have described for the Department of Revenue under oath what you considered to be your duties and accomplishment in your work, is that correct?

 

A. Yes, sir. . . .

 Plaintiff then admitted that he was "instrumental" in negotiating early retirement of "non-productive" employees and initiated the transfer of two field investigators to another district. The Secretary also offered a description of the district administrator job, the duties of which included "developing and implementing management methodologies and policies that best ensure efficient work flow while monitoring effective utilization of labor within contractual guidelines".

 Plaintiff Rotondi testified as follows:

 

Q. Now, Mr. Rotondi, that is quite different from what you told the judge yesterday, isn't it?

 

You told him you had nothing to do with establishing policy . . .

 

A. We established policies within the guidelines that are set forth.

 

Q. As a matter of fact, the part of the Manual which you have read for administrators which has been marked for identification . . . were part of your duties, right?

 

A. Yes, sir.

 

Q. And that says "establishing policy", doesn't it?

 

A. Yes, sir.

 The classification plan for Commonwealth employees described the work as "reviewing, analyzing and developing program policies and operating procedures. Initiative and independent judgment are exercised within a broad framework of existing laws and policies."

 Plaintiff Rotondi also testified as follows:

 

Q. And you also received some direction from Mr. Cohen and his staff asking you to become more involved in policymaking and interchanging with the public?

 

A. Yes, sir.

 Other examples described in the plan included devising solutions to administrative problems and developing and evaluating administrative policies and procedures. Both Rotondi and Farkas admitted they performed these duties.

 Direct examination indicated that district administrators perform some non-discretionary, non-policymaking duties. However, to be classified as a policymaking, discretionary employee, an individual need not make policy or exercise discretion every minute of his working day.

 Other testimony elicited at trial compels the conclusion that plaintiffs occupied policymaking positions. Consider the testimony of the remaining plaintiffs:

 (Hammerle):

 

Q. Would you . . . read for the Court how you described your duties and responsibilities (in your job application)?

 

A. I also determined cross training procedures and assignment policies for income tax and sales tax and oversee all realty transfer work . . . Generally, my position is a multifaceted administrative position . . .

 (Coco):

 

Q. Would you . . . read for us what you considered the description of your duties and accomplishments, responsibilities in your job as district administrator?

 

A. "Managing overseeing and developing policies for the operation of the district office . . ."

 

Q. That was true, wasn't it?

 

A. Yes, it was.

 

Q. May I ask you to read to us the last three paragraphs on the page (of your application for employment)?

 

A. . . . Included in my responsibilities as district administrator are managing, overseeing and developing policies for the operation of the district office . . .

 (Enea):

 

Q. Now, in applying for this job, you, of course, had received a job description?

 

A. Yes.

 

Q. And the responsibilities for which you were applying?

 

A. That's right.

 

Q. And you also included the work that you had been doing which is what they asked you to describe, correct?

 

A. Yes, sir.

 

Q. Would you be good enough to read (your application for employment) for us . . .?

 

A. ". . . my duties encompassed all of the responsibilities as set forth in the Department of Revenue job announcement for the position of district administrator . . .

 

Q. So you felt that your duties had been exactly as those described by the Secretary in the job description which he had sent to you in July?

 

A. That is correct.


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