This article was originally published in April 2017. The information has been reviewed and is up-to-date as of November 2021.
A newly-elected official is going to want to fill top posts in their organization with persons committed to the official’s vision for the future. In the same way, a top official after a period of months or years may want to change key lieutenants because of political differences. Indeed, this ability to pick and choose among key advisers and high-level posts in a public organization has long been a traditional element of politics.
But sometimes, these notions come into a conflict with well-established job protections of public employees. One of these is the First Amendment, which in a number of circumstances prohibits public agencies from taking adverse actions against employees based on their speech or political associations. For most public employees, their speech and even their criticism of their own agency can have protection under the First Amendment if particular conditions are met. Under principles of constitutional law, a public employee can assert a First Amendment retaliation claim against his or her employer if:
- the employee suffers an adverse employment action because of the employee’s speech,
- that speech was on a matter of public concern,
- the speech was outside the employee’s “official duties,” and
- a balancing test of certain respective interests favors the employee.
Of course, public employees often have numerous other protections against adverse employment actions, including due process rights, contractual “for cause” standards, and protections in collective bargaining agreements.
As far as the First Amendment is concerned, however, for some key employees, there is in fact room for what can appear to be arbitrary action or “patronage” dismissals. The United States Supreme Court has created a “policymaker exception” to First Amendment protection, recognizing that an elected official must be able to appoint some high-level politically loyal individuals who will help him or her implement the goals or programs for which the public voted. See Branti v. Finkel. The U.S. Court of Appeals for the Ninth Circuit (covering California) described in a 1997 case titled Fazio v. City of San Francisco that if an employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.” The Court described the following factors a Court must consider in identifying a “policymaking” position:
- “vague or broad responsibilities,”
- “relative pay,”
- “technical competence,”
- “power to control others,”
- “authority to speak in the name of policymakers,”
- “public perception,”
- “influence on programs,”
- “contact with elected officials,” and
- “responsiveness to partisan politics and political leaders.”
In a 2012 decision, Hunt v. Orange County, the Ninth Circuit added some refinements to the “policymaker” test. The Court held that the exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question. “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” (Emphasis added.) In the Hunt case, the Ninth Circuit found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff. Hunt was the Chief of Police Services for the City of San Clemente, which contracted with Orange County Sheriff’s Department for police work. The Court reasoned: “Here, the record fails to establish that Hunt’s party affiliation or political outlook were relevant to the effective discharge of his professional duties.” Instead, the factual findings were that “Hunt’s political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.” The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.
District court cases decided after Hunt provide examples of what types of employees were considered policymakers. In 2013, in Wittenberg v. Public Utility Dist. No. 1 of Skamania County, the U.S. District Court for the Western District of Washington determined that a general manager of a public utility district, selected by three elected officials, was a policymaker. In 2015, in Summers v. City of McCall, a District Court in Idaho determined that a City Chief of Police in that case met the definition. In 2016, in Kaelble v. Tulare County, the District Court for the Eastern District of California found that a Supervising Deputy District Attorney to be a policymaker where each of the relevant criteria was satisfied.
In conclusion, deciding that an employee meets the definition of a policymaker can obviously have important ramifications for the employee – and for the agency, if it makes a politically motivated decision as to someone whose job does not actually meet the definition. Accordingly, it is best to obtain legal advice if there is any doubt.