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PETERS v. DELAWARE RIVER PORT AUTH. OF PENNSYLVANI

December 11, 1992

WALTER T. PETERS, JR.
v.
DELAWARE RIVER PORT AUTHORITY OF PENNSYLVANIA AND NEW JERSEY



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III

 Bartle, J.

 This is a civil rights action brought pursuant to 42 U.S.C. § 1983. *fn1" Plaintiff Walter T. Peters, Jr. ("Peters") alleges that the defendant Delaware River Port Authority of Pennsylvania and New Jersey ("DRPA") has infringed his constitutional rights of freedom of belief and association, by failing to reappoint him as its Secretary solely because he is a member of the New Jersey Republican Party. *fn2" At the conclusion of discovery, the parties filed cross motions for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. *fn3" The issue before the Court is whether party affiliation is a constitutionally acceptable requirement for the position of Secretary of the DRPA.

 The DRPA is an agency of Pennsylvania and New Jersey, formed by Compact between these two states and formally approved by Congress. *fn4" 36 P.S.A. § 3503; N.J.S.A. 32:3-1 et seq. (the "Compact"). The DRPA was created in 1931, among other things, to operate and maintain the bridges owned jointly by Pennsylvania and New Jersey across the Delaware River and between the

 cities of Philadelphia and Camden. Under the Compact, DRPA has authority to construct and maintain facilities for the transportation of passengers, to improve and develop the Port District for port purposes, and to promote commerce on the Delaware River. It may also establish, maintain, and operate a rapid transit system between certain points in New Jersey and Pennsylvania (Compact, Art I).

 Peters became an officer of the DRPA when the Board of Commissioners elected him as Secretary on October 20, 1989 to fill a vacancy. However, the Board did not reappoint him when his term ended on January 20, 1991. Peters, a New Jersey Republican, claims that he was not retained because the commissioners wanted the position for an individual affiliated with the New Jersey Democratic Party. The person who succeeded Peters as Secretary is in fact a Democrat.

 In Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), the Supreme Court struck a blow at the time honored system of political patronage. The Court's plurality opinion concluded that it is generally a violation of the First Amendment right of freedom of belief and association for a public employer to fire an employee on the basis of political affiliation. *fn5" Subsequent cases have extended Elrod protection to situations involving demotion, transfer and failure to reappoint based on political affiliation. See Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990). The Elrod plurality declared, however, that some party based dismissals would be permissible in order to protect the ability of an administration to implement its policies as mandated by the electorate. Elrod at 2687. The plurality carved out an exception for policy making employees or employees in a position of confidence, placing the burden on the defendant to show that party affiliation "furthers some vital government end by a means that is least restrictive of freedom of belief and association . . ." Id. at 360-63.

 In Branti v. Finkel, ,445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574, the Supreme Court, in a majority opinion, altered the test for determining which positions are excepted from the general rule against patronage dismissals. Under Branti, the test is not whether an employee can be labeled a "policy maker," or "confidant," but whether "the hiring party can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 100 S. Ct. at 1287. The Court reasoned that "a position may be appropriately considered political even though it is neither confidential nor policy making in character." Conversely, the court observed that "party affiliation is not necessarily relevant to every policy making or confidential position." Id. Thus, although the extent and breadth of an employee's responsibilities may be instructive, they are not determinative.

 Following Branti, the Court of Appeals of this Circuit affirmed that the crucial question is whether affiliation with a political party is somehow related to effective job performance. In Burns v. County of Cambria, for example, 971 F.2d 1015 (3d Cir. 1992) the Court of Appeals held that the positions of deputy sheriff and clerk investigator were protected from patronage dismissal. The court explained that the mere fact that a position requires loyalty and confidentiality does not automatically validate politically motivated dismissals. Id. at 1022-23. Rather, in order to qualify for the exception, an employee's duties must "relate to 'partisan political interests.'" Id. at 1022 (emphasis added) (citations omitted). In Mummau v. Ranck, 531 F. Supp. 402, 404 (E.D. Pa. 1982) the court described the inquiry as a "functional analysis of the individual's position with an eye to determining whether it is likely that party affiliation could cause plaintiff, a public official, to be ineffective in carrying out his duties and responsibilities." There, the court upheld the dismissal of Lancaster County Assistant District Attorneys based on political affiliation, finding that their responsibilities implicated important governmental policies, and entailed the duty to represent the interests of the Commonwealth. See also Zold v. Township of Mantua, 935 F.2d 633 (3d Cir. 1991).

 Defendant asserts that the position of Secretary entails broad policy making and confidential duties which place it within the Elrod -Branti exception to the general rule prohibiting patronage dismissals. Article III, Section (D) of the Bylaws of the DRPA details the duties of Secretary as follows:

 The secretary, reporting to the executive director, shall be the custodian of all records and the seal of the authority and shall keep accurate minutes of the meetings of the authority and all of the committees thereof. He shall, on behalf of the authority certify, when required, copies of the records, and shall execute legal instruments and documents on behalf of the authority when ordered to do so, and affix the seal of the authority to the same, and shall perform such other duties as may be directed by the authority. (emphasis added)

 According to the DRPA, it took advantage of the ability to direct the Secretary to perform "other duties," creating a position with wide ranging authority and responsibilities. The DRPA relies on the official description of the position promulgated by the Board of Commissioners in 1983. This document charges the Secretary with, among other things: reviewing correspondence, reports, communications and sources of information and making appropriate recommendations to the Executive Director of the DRPA; assisting in planning for the improvement and expansion of DRPA facilities, operations, organization and management; participating in high-level DRPA matters with Commissioners, committees, staff, public officers, and other public bodies; attending the executive sessions of the DRPA as requested and participating in all policy-forming discussions during executive sessions of the DRPA; acting as liaison and maintaining good public relations with other agencies and representing the Executive Director with other public agencies and members of the public; assisting the coordination of operational divisions and staff at the DRPA; and interpreting and executing DRPA policy.

 Plaintiff contests defendant's characterization of the position, asserting that it is primarily ministerial in nature. He points out that the position, as described in the Bylaws, is entirely ministerial and that all the functions which allegedly entailed policy making are additional duties delegated pursuant to the "extra duties" clause. He further asserts that those "extra duties" do not establish that he had meaningful input into decisions concerning the nature and scope of major programs, or that his affiliation was likely to cause plaintiff to be ineffective in carrying out his duties and responsibilities. Plaintiff relies on testimony from the ...


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