Heck v. City of Freeport, s. 91-3893

• Decision Date: 29 January 1993
• Docket Number: Nos. 91-3893,91-3894,s. 91-3893
• Citation: 985 F.2d 305
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 1229, 60 Empl. Prac. Dec. P 42,021 Leo HECK, Plaintiff-Appellant, v. CITY OF FREEPORT and Mayor Richard Weis, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 305

985 F.2d 305

60 Fair Empl.Prac.Cas. (BNA) 1229,

60 Empl. Prac. Dec. P 42,021

Leo HECK, Plaintiff-Appellant, v. CITY OF FREEPORT and Mayor Richard Weis, Defendants-Appellees.

Nos. 91-3893, 91-3894.

United States Court of Appeals Seventh Circuit.

Argued Sept. 23, 1992.

Decided Jan. 29, 1993.

Michael K. Havrilesko (argued) and Ellen B. Lynch, Havrilesko & Associates, Rockford, IL, for plaintiff-appellant.

James T. Ferrini, John M. Hynes, Mark Seplak (argued), Clausen, Miller, Gorman, Caffrey & Witous, Chicago, IL, and Michael J. Phillips, Office of the Corp. Counsel, Freeport, IL, for defendants-appellees.

Before CUMMINGS, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Between 1986 and 1989, Leo Heck served as the General Inspector of the City of Freeport, Illinois. As set out in the Freeport Municipal Code, the General Inspector is a salaried position within the Health Department appointed by the mayor of Freeport with the approval of the City Council. The job involves the supervision of five garbage collectors and the city dump; the officer receives the use of a city car and parking space, and has his own office in city hall. Mayor Mark McLeRoy, the former five-term mayor of Freeport, appointed Heck to the post in January 1986, after the previous appointee decided to retire. Heck continued in the position until McLeRoy's successor picked a new General Inspector to replace him. This case arose because Heck complains that his termination was unfair.

During the 1989 mayoral campaign, Heck campaigned actively for his boss, who was the candidate of the People's Party, by distributing brochures, posting signs, and working the various precincts. Unfortunately for Heck, McLeRoy lost the race to Richard Weis, candidate of the Citizens Party. The new mayor took office on May 1, 1989. Over the next few days, Weis had several conversations with Heck in which, although the precise details of the conversations are disputed, Weis expressed general dissatisfaction with Heck's job performance. On May 5, the interim corporation counsel for Freeport sent a letter thanking Heck for his service to the city and explaining that Mayor Weis planned to appoint a replacement:

As you are most likely aware, when someone is appointed to the position of General Health Inspector, he holds that position until a successor is appointed. You may also know that it is the prerogative of the new Mayor to make such appointments, with the approval of the City Council, as he may deem appropriate and proper. This will notify you that it is the intention of the new Mayor to appoint a new General Health Inspector.

This letter is written to you for the purpose of advising you of this fact, and of affording you the opportunity to tender your written resignation to the Mayor by May 31st, 1989.

Appellees' Brief app. D. Weis then selected Eric Gubelman as his nominee for General Inspector, who was subsequently confirmed by the City Council.

Heck brought two actions against Mayor Weis and the City of Freeport, the first alleging that he was the object of a "political patronage firing" in violation of his First Amendment rights, and the second alleging that his termination violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1988), and also deprived him of his due process property and liberty rights. The district court granted summary judgment for the defendants on all four counts. We review summary judgment orders by the familiar test of whether all the pleadings and supporting documents indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). We conclude that summary judgment was properly granted in this case.

I.

Before we can decide whether Weis' actions toward Heck violated any of his constitutional or statutory rights, we must evaluate Heck's legal status as a municipal employee at the end of Mayor McLeRoy's term. Two sets of authorities bear on this question--state law and municipal law. In each case, the relevant statute clearly indicates that the General Inspector's term of office ends when the mayor who appoints him loses his office. Chapter 47, § 103 of the Freeport Municipal Code provides:

Term of office. Every appointive officer of the City shall hold office until his successor is appointed and qualified, unless it is otherwise provided by Statute or Ordinance. The term of every such officer shall automatically expire as soon after the end of the term of the appointing Mayor as the successor to such officer is appointed and qualified.

Freeport, Ill., Code ch. 47-103. The Illinois Code similarly provides:

Unless otherwise specifically provided by statute, all officers of any city shall be appointed by the mayor by and with the advice and consent of the city council.... The city council, by ordinance not inconsistent with this Code, may prescribe ... the term of office of all such officers; but the term of office shall not exceed that of the mayor.

Ill.Ann.Stat. ch. 24, para. 3-7-2 (Smith-Hurd 1990).

On the basis of this evidence, the district court found that Mayor Weis did not fire Heck at all; Heck's term of office simply ended when Mayor McLeRoy, who had appointed him, lost his reelection bid. We agree with this conclusion. The purpose of the term-limitation rule embodied in the Freeport Code and the Illinois Code is to enable a newly-elected executive to assemble a team of officials whom he trusts to develop and carry out his agenda for the municipality. The rule gives effect to the democratic will of the electorate by allowing the public to sweep an administration out of office and elect a new set of leaders. Without such a rule, one municipal administration could make appointments that would bind its successor. In light of this powerful justification for limiting official terms to the tenure of the appointing executive, we have applied the rule even when there is no statute that sets term limits. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1331 (7th Cir.1989) (Wisconsin law).

In the face of this convincing statutory authority, Heck tries to create doubt about the nature of his discharge by alleging that he was given inconsistent reasons for the termination. Heck acknowledges that the May 5 letter explained in clear terms that Mayor Weis intended to exercise his prerogative not to renew Heck's appointment, despite his contributions as an employee. But Heck complains that Weis stated in his deposition that Heck was fired because he failed to develop a comprehensive plan relating to recycling and composting. The defendants' answers to interrogatories, according to Heck, proposed a third reason why Heck was fired:

Plaintiff was replaced because of his apparent inability and/or desire to carry out the functions of the position of General Inspector in the manner deemed necessary by Mayor Weis and Mayor Weis's necessity to have a person in the position who he would be confident could carry out the functions of this position in a manner which would further the goals and objectives of his administration.

Defendant's Answers to Interrogatories at 2. Finally, Heck points out that Freeport's compensation records list, as the reason for his termination, that he resigned.

None of these considerations changes the fact that Heck's term of office ended, by operation of law, when Mayor McLeRoy was succeeded. Nor, in fact, do we regard these explanations and accounts as suspiciously inconsistent. The letter of May 5 did not purport to give reasons for Heck's termination; it simply notified Heck that Mayor Weis would appoint a different General Inspector, and it invited him to submit his resignation. The explanation Weis gave during his deposition does not contradict this story, but rather fills in some of the details of Weis' concerns about Heck. The answer to the interrogatories supplements the letter in a similar fashion, by stating generally that Weis was unhappy with Heck's performance. Lastly, the notation in Freeport's compensation records, although apparently incorrect, likely has an innocent explanation. We see no reason to view it as anything but a minor clerical error.

Given our conclusion that Heck's term of office ended when Mayor McLeRoy lost the mayoral race, our inquiry may appear to be at an end. If Heck's position expired by operation of state and municipal law, then he would seem to have no claim against Freeport for unlawful discharge. The Supreme Court, however, has frowned on arguments for limiting the ban on patronage practices to employees who possess some minimum property interest in their jobs. In Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Court reiterated its decision that even employees at will without any right to continued employment are entitled to protection from patronage dismissals, id. at 72, 110 S.Ct. at 2735, and it expanded the set of banned practices from firings to virtually all employment decisions, including hirings. Id. at 79, 110 S.Ct. at 2739. In a footnote to the earlier case of Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the Court rejected an argument, albeit tersely, that since an assistant public defender's term of office automatically expired when the public defender's term ended, the case involved only a "failure to reappoint" rather than a dismissal and thus deserved to be reviewed under "a less stringent standard." See id. at 512 n. 6, 100 S.Ct. at 1291 n. 6. We must therefore proceed to the merits of Heck's First Amendment claim.

The district court correctly found that Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), permitted patronage dismissals of officials holding policymaking positions. The Supreme Court refined the concept of a policymaking exemption in Branti by...