On Appeal from the United States District Court for the Eastern District of Pennsylvania D.C. Civil No. 84-0933
Before: HUNTER, MANSMANN, Circuit Judges, and DIAMOND.*fn* District Judge
1. Barbara Brown was appointed secretary in the office of public Information of Bucks County in July, 1981. In February, 1982 she became the Assistant Director of Public Information for Bucks County. Her duties included preparing and distributing press releases, contacting media representatives, and promoting county projects. Her supervisor was Hal Lefcourt, the County Public Information Officer. Lefcourt had to approve all press releases. He rated Brown's job performance as satisfactory.
2. Brown is affiliated with the Republican Party. On January 3, 1984 her employment with Bucks County was terminated by the newly elected Democratic Bucks County Commissioners. All of the other people fired at this time were Republicans and all of those hired were Democrats. Brown was not given a written notice explaining the termination or any hearing on the matter.
3. Brown brought suit under 42 U.S.C. § 1983 alleging that, because she had been fired based on her political beliefs, her first amendment rights had been violated. She also claimed that she had a property interest in her job and that she had been deprived of that interest without due process of law. The district court found no first amendment violation because, under Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980), her job was one in which party allegiance was a necessary requirement for proper performance. Therefore, she could be dismissed from the job based on her party affiliation. The court did find that Brown had a property interest in her job but concluded that she had not been denied due process because she had been given the opportunity for post-deprivation review in the state courts.
4. The Supreme Court has held that, in general the first amendment rights of public employees are violated if they are dismissed solely because of their political affiliation. See Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980) (assistant public defender could not be dismissed); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (sheriff could not be dismissed). At the same time the court has held that there are certain exceptions to this rule so that some patronage dismissals are permissible without any offense to the first amendment. In Elrod, the Court explained that such an exception existed for an employee who "acts as an advisor or formulates plans for the implementation of broad goals." 427 U.S. at 368. Elrod was viewed as creating an exception for employees in a policymaking or confidential position. In Branti, the Court spoke more broadly in stating that the "ultimate question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." The relevant inquiry is to the function of the public office in question and not the actual past duties of the particular employee involved. See Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa.), aff'd. 687 F.2d 9 (3d Cir. 1982) (per curiam); see also Gannon v. Daley, 561 F. Supp. 1377 (N.D. Ill. 1983). The fact that an employee is in a policymaking or confidential position is relevant to the question of whether political affiliation is a necessary job requirement but this fact is no longer dispositive after Branti.
5. This court has found that, under Branti and Elrod, political affiliation is a proper ground for dismissal of a city solicitor, see Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981), and an assistant district attorney, see Mummau v. Ranck. In Ness we concluded that the city solicitor's duties of rendering legal opinions, drafting ordinances, and negotiating contracts made his position intimately related to city policy. 660 F.2d at 522. We relied on our reasoning in Ness to find that the position of assistant district attorney likewise could require political affiliation for effective performance of the job. A district court has found that neither a superintendent of roads, see Abraham v. Pekarski, 537 F. Supp. 858, 865 (E.D. Pa. 1982), aff'd, 728 F.2d 167 (3d Cir.), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 822 (1984), nor a bookkeeper identified as "Second Deputy Clerk" could be dismissed based on political affiliation. See Mitman v. Glascott, 557 F. Supp. 429 (E.D. Pa. 1983), aff'd, 732 F.2d 146 (3d Cir. 1984).
6. Courts outside of this circuit have considered a variety of government positions to determine whether they fall within the patronage exception of Elrod and Branti. Employees in the following positions have been found subject to removal based on their political affiliation: fee agent, see Sweeney v. bond, 669 F.2d 542 (8th Cir.) cert. denied, 459 U.S. 878, 103 S. Ct. 174, 74 L. Ed. 2d 143 (1982); Senior Citizens Coordinator, see Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 72 L. Ed. 2d 139, 102 S. Ct. 1719 (1982); Deputy Parks Commissioner, see Ecker v. Cohalan, 542 F. Supp. 896 (E.D.N.Y. 1982); Deputy Sheriff, see Joyner v. Lancaster, 553 F. Supp. 809 (M.D.N.C. 1982); Director of the Farmers Home Administration, see Brunton v. United States, 518 F. supp. 223 (S.D. Ohio 1981); Worker's Compensation Law Judge, see Garretto v. Cooperman, 510 F. Supp. 816 (S.D.N.Y. (1981); city corporation counsel, see Bavoso v. Harding, 507 F. Supp. 313 (S.D.N.Y. 1980). Employees in the following positions were found not subject to dismissal under Elrod and Branti: branch manager for the state Department of Revenue, see Gibbons v. Bond, 523 F. Supp. 843 (W.D. Mo. 1981), aff'd, 668 F.2d 967 (8th Cir. 1982); Deputy Sheriff, see Barrett v. Thomas, 649 F.2d 1193 (5th Cir. 1981), cert. denied, 456 U.S. 925, 72 L. Ed. 2d 440, 102 S. Ct. 1969 (1982); supervisor of a county branch of the Auditor's office, see DeLaCruz v. Pruitt, 590 F. Supp. 1296 (N.D. Ind. 1984); administrative assistant to the State's Attorney of Cook County, see Gannon v. Daley, 561 F. Supp. 1377 (N.D. Ill. 1983); Assistant Director of the Division of Motor Vehicle and Drivers Licensing, see Crisp v. Bond, 536 F. Supp. 137 (W.D. Mo. 1982); City Clerk, see Visser v. Magnarelli, 530 F. Supp. 1165 (N.D.N.Y. 1982).
7. While Branti provides us with a "test" the Supreme Court has not specified the particular factors which indicate that a position falls within the Branti test. Factors suggested by other courts include whether the employee's duties are simply clerical or related to law enforcement, see Barrett, 649 F.2d at 1201, nondiscretionary or technical, see Visser, 530 F. Supp. at 1171. Courts have also considered whether the employee participates in Council discussions, see Visser, 530 F. Supp. at 1167, or other meetings, whether the employee prepares budgets, or has authority to hire or fire employees, see DeLaCruz, 590 F. Supp. at 1304, the salary of the employee, and the employee's power to control others and to speak in the name of policymakers. See Ecker, 542 F. Supp. at 901. In Crisp, the Court held that the Assistant Director of the Division of Motor Vehicle and Drivers Licensing could not be fired because he had no confidential duties even though he supervised employees, prepared the budget, was liaison with the public, attended conferences, and analyzed administrative procedures and work standards. 536 F. Supp. at 139. See also Gibbons, 523 F. Supp. at 852. The key factor seems to be not whether the employee was a supervisor or had a great deal of responsibility but whether the employee has "meaningful input into decision making concerning the nature and scope of a major township program." Nekolny, 653 F.2d at 1170.
8. Brown reports to the Director of Public Information for assignments. The Directors reports to the Chief Clerk who in turn reports directly to the Commissioners who are the policymakers in the county. Brown contends that she is only a conduit and collator of data and information from other departments. Since none of her work is released to the public unless reviewed by her supervisor she likens her position to that of an untitled journalist for a wire service. Her writings are based on information from other departments and are never released until they are reviewed by both her supervisor and by the Commissioners.
9. There is no dispute over the fact, however, that Brown was responsible for writing press releases. The court below found that the duties of the position also required her to write speeches, communicate with legislators, and, most important, to present the views of the Commissioners to the press and public on a daily basis. The court below correctly determined that Brown's position is one which cannot be performed effectively except by someone who shares the political beliefs of the Commissioners. While some of her duties were only technical or clerical in nature, her principal duty was to act as spokesman for the Commissioners and help promote county projects. Brown could, therefore, be dismissed because of her political affiliation without any violation of her first amendment rights.
10. Even though Brown could be dismissed without infringement of her first amendment rights, she was entitled to due process if her expectation of continued employment constituted a property interest. See Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976); ...