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February 13, 1998

EUGENE F. ASSAF, SR., Plaintiff

The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 This case presents a Branti-Elrod claim. See Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). The plaintiff, Eugene F. Assaf, Sr., alleges that his first amendment rights were violated when he was fired from his job with the Department of General Services for the Commonwealth of Pennsylvania on the basis of party affiliation. The plaintiff, a Democrat, lost his job shortly after Tom Ridge, a Republican, was elected Governor. The plaintiff seeks compensatory and punitive damages.

 The defendants are Gary E. Crowell and George C. Fields. Crowell is the Secretary of the Department of General Services, and Fields was Deputy Secretary of Procurement in the Department and the plaintiff's immediate supervisor at the time of his discharge.

 We are considering the defendants' motion for summary judgment under Fed. R. Civ. P. 56. The defendants deny that plaintiff was fired for political reasons but argue that, even if he was, political affiliation is a valid condition for the job. They also argue that, even if the first amendment protected his job, they are entitled to qualified immunity. As we read the cases, the main issue presented is whether the plaintiff's job allowed him to have input into the nature and scope of a major governmental program or to shape the public's perception of that program. If so, then he has no first amendment claim because these duties are so significant they entitle high-level officials to take into account political affiliation in filling the job.

 We will evaluate the defendants' motion under the well established standard. See Davis v. Portline Transportes Maritime Internacional, 16 F.3d 532, 536 n.3 (3d Cir. 1994). In doing so, we note that, while the parties emphasize different facts, there is no dispute as to the material ones. The case is therefore suitable for summary judgment, and we present the following background in the light most favorable to the plaintiff.

 II. Background.

 The plaintiff, a Democrat, was hired in October 1988 as Director of the Bureau of Vehicle Management while Robert P. Casey, also a Democrat, was governor. The Bureau is an agency within the Department of General Services and is responsible for some 8,000 cars that the Commonwealth owns for the transportation needs of various state agencies.

 Republican Tom Ridge won the November 1994 election for governor over his Democratic opponent and was inaugurated in January 1995. In the same month, Governor Ridge chose Gary E. Crowell to be the Secretary of the Department of General Services. Immediately below Crowell, George Fields was the Department's Deputy Secretary for Procurement, occupying that position from January 1990 until February 1996. As Director of the Bureau of Vehicle Management, plaintiff reported directly to Fields.

 In March 1995, Fields fired the plaintiff. The plaintiff alleges that Fields admitted at that time that he was being terminated because of politics. The defendants deny this was the reason. Crowell asserts that he wanted to establish an atmosphere of customer service for state employees and members of the general public who did business with the Bureau and that, as he assessed plaintiff, he was lacking in those areas.

 Assaf's job was exempt from civil service protection and was non-union. When he was hired in 1988, the Commonwealth's letter confirming his appointment informed him that his position was covered under the "Senior Management Service," a category of positions deemed to "have broad policy participation and management responsibility." (Assaf deposition, exhibit 3). As such, he served "at the pleasure of the agency head." (Id.). The letter also informed him he was ineligible for unemployment compensation.

 The Bureau is formally divided into three sections, the Administrative Division, the Vehicle Operations Division, and the Vehicle Maintenance Division. As the Director of the Bureau, Assaf supervised these sections and a total of 33 to 46 employees. He started at an annual salary of $ 37,000 and ended with a salary of $ 52,000. He ran the day-to-day operation of the Bureau.

 In June 1990, the plaintiff received a written job description (which identified his position with the alternative title of "fleet maintenance manager"). His duties were listed in ten numbered paragraphs, but we can divide them into general and subsidiary duties as follows.

 First, the plaintiff's "major duties" were:

Directs the Bureau of Vehicle Management to meet the transportation needs of all requesting Commonwealth Departments, Agencies, and Commissions while remaining within the financial guidelines of self-generated income.

 (Assaf deposition, exhibit 5).

 He then had three general duties:

Participates with the Deputy Secretary in planning, developing and implementing appropriate standards, procedures and policies for obtaining and maintaining the Commonwealth Automotive Fleet;
Directs the operation of the Commonwealth Garage concerned with the service and repair of the automotive fleet. Negotiates and administers regular maintenance contracts with service Agencies and with dealerships for repair and preventive maintenance;
Oversees the disposition of the Commonwealth owned vehicles. These vehicles are sold through an oral auction which is open to the public. Makes sure that all activities are carried out according to approved policy. Interacts with the general public whenever concerns arise.

 (Id., exhibit 5, PPs 1, 4 and 6).

 Certain subsidiary duties are also specified: "stays abreast of the automobile market and recommends when to purchase vehicles . . . ."; "determines the best type of vehicles to purchase"; "directs the maintenance of all records and reports concerning the Commonwealth Fleet"; "assures that all of the vehicles are properly licensed" and titled; "directs the payment of repair invoices from various vendors . . ."; "oversees the repair of vehicles at the Commonwealth garage"; "directs the temporary vehicle fleet making it available for use by the requesting Commonwealth agencies . . . ." (Id.) *fn1"

 Thus, as to obtaining new vehicles, and contrary to the job description, Assaf did not recommend when they should be purchased. The Bureau of Purchasing decided how many cars to buy and when to do so, conditioned on Fields' approval. Plaintiff's only input into the purchase decision was indirect because he decided when cars should be auctioned, and the income from the auctions partially determined how many cars could be purchased. According to Fields, Assaf used a "formula" to decide which cars to auction, although the formula was not a "strict" one.

 Similarly, as to assigning vehicles to the various agencies, while Assaf made that decision, Fields had to approve it. Moreover, Fields had control over executive vehicle assignments.

 Second, as to repairs and routine maintenance for Commonwealth vehicles, maintenance was done at the Commonwealth Garage according to manufacturers' warranties and changed by Assaf only when the manufacturer recommended a change. Assaf could approve outside repair shops to do work for the Commonwealth if they had certain capabilities. These shops could perform repair work if they accepted the standard contract from the Commonwealth, which Assaf did not draft. The rates they were paid could increase based on a formula tied to inflation. Assaf could change these rates and the changes were normally approved, but nonetheless the Deputy Secretary and the Secretary had authority to reject Assaf's decisions.

 Third, as to the auction of Commonwealth vehicles, as noted above, a formula was used to select the cars for auction although some discretion was used, depending, among other things, on the maintenance history and the number of a particular make of vehicle in stock. Fields had to approve Assaf's list of cars to be auctioned. The target price that the Commonwealth sought for each vehicle was also set by a formula which could take into account the condition of the individual vehicle.

 As to more general duties, Assaf had no final authority to hire or fire but could make recommendations about those matters. He could also discipline employees. He had no input into his budget. He could make certain contracts. He could not make capital improvements to the Commonwealth Garage. He did have meetings with the Deputy Secretary every two weeks along with the other Bureau Directors and occasionally alone. At one point during his tenure, he responded to criticism from a buyer at the auction by writing to Fields and asserting that "the new changes and policies I have established have made this auction respected throughout the State and outside the State." (Assaf deposition, exhibit 11).

 The defendants credit the plaintiff with a number of positive accomplishments. Assaf assesses them differently. Thus, the defendants assert that Assaf was "instrumental in changing Bureau policies and practices with respect to the auctioning of surplus State automobiles to increase security." Assaf says he locked a door to the auction stage while the auction was going on. The defendants contend that he established firm target prices on vehicles in a professional manner, increased revenue from the auctions, increased participation by the public bidding on the cars and installed good business practices. Assaf says the formula for pricing was already there and that he just generated a mailing list to notify the public of auctions. The defendants also assert that Assaf took steps to involve the State Attorney General's Office in investigating possible collusion by bidders at auction. Assaf says that he merely notified the Attorney General whose office successfully investigated the bidders. The defendants contend that Assaf changed the labor rates for repair work from a statewide rate to a countywide rate. Assaf says he just passed along a suggestion from an employee which Fields approved. The defendants assert that Assaf was involved in changing the way state agencies were charged for vehicle rentals by taking into account the type of car, among other things. Assaf says that a formula had been in place for years about this and Fields actually made it work. Finally, the defendants contend that the plaintiff "represented" the Commonwealth at three conferences of the National Fleet Administrators. The plaintiff counters that he merely attended the conferences and reported on them.

 After he was fired, the plaintiff applied for unemployment compensation. The Unemployment Compensation Board of Review rejected his application after applying state law that took into account the Elrod and Branti decisions.

 At Crowell's deposition taken in connection with this case, the following exchange took place:

Q To do the job of director of vehicle management, do you think party affiliation is an appropriate ...

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