Messer v. Curci
| Citation | 610 F. Supp. 179 |
| Decision Date | 04 June 1985 |
| Docket Number | Civ. A. No. 84-157. |
| Parties | Bruce MESSER and Timothy P'Simer, Plaintiffs, v. Fran CURCI, Kelly Newton, W. Gayle Foust and Thomas Lykins, Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
Stephen Krumm and Deborah G. Roher of Northeast Ky. Legal Services, Ashland, Ky., for plaintiffs.
J. Patrick Abell, Dept. of Parks, Paul C. Gaines, III, and Daniel F. Egbers, Cabinet for Human Resources, Frankfort, Ky., for defendants.
"To the Victor Belong the Spoils of the Enemy." — William L. Marcy, 1832
Defendants' motion to dismiss in this action presents the court with a significant issue, namely, whether the rule of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), prohibiting firings of non-policy making public employees for reasons of political patronage, applies to hirings of such employees. Considering the age of the Elrod decision and the long standing practice of making such personnel decisions on the basis of patronage, there is remarkably little authority on this issue. Perhaps this is due to the fact that frequently the issue is not clearly presented factually. That is not the situation with regard to the present case, however, where the motion to dismiss now before the court presents the precise issue for decision.
In this 42 U.S.C. § 1983 action, plaintiffs Bruce Messer and Timothy P'Simer challenge the decision of the Kentucky Department of Parks not to rehire them as seasonal maintenance workers at the Carter Caves State Resort Park in Carter County, Kentucky. They base this action on the allegation that defendants acted in concert not to rehire the plaintiffs because of their political beliefs and because of their failure to work in the 1983 election campaign of Martha Layne Collins. Ms. Collins was elected Governor of the Commonwealth in that election.
There are four defendants in this action. First, Fran Curci is the Commissioner of the Department of Parks. His duties include the formulation and implementation of hiring policies and practices within his department. Second, W. Gayle Faust is the Department of Parks Director of Personnel. His duties include the employment and termination of employees within the Department. Third, Kelly Newton is the Superintendent of Carter Caves State Park. His duties include the determination of employment status at the Park. Last, Thomas Lykins is a member of the Carter County Democratic Party Committee who allegedly received and reviewed applications for seasonal employment at the Park during the 1984 season and was permitted to make actual hiring decisions during this period. Plaintiffs allege that the defendants held their respective positions at the time of the alleged deprivations.
On this motion, the following facts must be taken as true. Plaintiffs Messer and P'Simer were continuously employed as seasonal maintenance workers at the Park for the past eight and three years, respectively. Their positions commenced in mid-March and terminated in mid-November.
They filed their applications for seasonal maintenance positions at the park in January of 1984 for the 1984 summer season. Annual re-application for seasonal employment had been defendants' hiring practice and had been utilized each of the preceding years plaintiffs had been employed at the park. These applications were delivered to Newton at the park.
Plaintiff Messer made a follow-up inquiry concerning the status of his application in March of 1984. He contacted Newton, who told Messer that he had recommended both plaintiffs be rehired and that he had taken the applications to defendant Lykins' office. Newton claimed that the Committee of which Lykins was a member did not permit him to have any voice over who was ultimately hired.
Immediately thereafter, Messer went to Lykins' home to inquire about his application's status. He was told by Lykins that no one would be hired for seasonal employment at the park except through the Committee and that this Committee would not hire anyone who had not worked for the Martha Layne Collins election effort. Messer's belief that he was not to be rehired was confirmed on or about April 7, 1984, when he went to the park and saw two new individuals performing the duties which had been performed by the plaintiffs in previous years.
Plaintiff P'Simer conversed with Messer, who notified him of the previous conversation he had with Newton and Lykins. P'Simer went to Lykins' home on or about May 1, 1984 to ascertain why he had not been rehired for the 1984 season. Lykins indicated he had not been rehired because he had not worked in Martha Layne Collins' campaign.
Messer is a registered Republican and P'Simer is not a registered voter. Neither Messer nor P'Simer worked in the 1983 campaign of Martha Layne Collins. Plaintiffs allege that they have been deprived of employment as seasonal maintenance workers at the park due to their political beliefs and associations in contravention of their rights under the First and Fourteenth Amendments to the Constitution of the United States.
1. Pursuant to Kentucky law with respect to state personnel management, is the situation described above in plaintiffs' complaint one of a "failure to rehire" or "initial hiring"?
2. Is it a violation of the First and Fourteenth Amendments to refuse to hire a person for public employment in a non-policy making position for reasons of political patronage?
This is a Failure to Hire Case.
Under the relevant Kentucky statutes, the court concludes plaintiffs were initial applicants for the seasonal positions as maintenance workers at the park for the 1984 season. KRS 18A.005(20) provides:
Pursuant to the express terms in the statute, plaintiffs' old seasonal positions could not legally exceed eleven months in duration. At the end of the 1983 season, plaintiffs' employment relationship with the state was terminated on criteria other than political affiliation. Plaintiffs stand in the same position as any other seasonal applicants with respect to any prospective seasonal employment in the 1984 hiring year. Notwithstanding plaintiffs' past employment as seasonal maintenance employees and their expectation of continued employment prior to the beginning of the 1984 season, the court concludes that their status was as applicants for employment with the state and they stood in the same position as any other job applicant for seasonal employment.
Plaintiffs argue vigorously that the adverse personnel action should be characterized as a dismissal rather than a refusal to hire. This determination makes a critical difference as will be seen from the subsequent analysis in this opinion. In analyzing their status as employees, the court must defer to state law. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Kendall v. Board of Education, 627 F.2d 1, 4 (6th Cir.1980); Yashon v. Gregory, 737 F.2d 547, 553 (6th Cir.1984).
The statute quoted above is clear on its face that after each period of temporary or seasonal employment the plaintiffs reverted to non-employment status. Their expectation of being re-employed could not rise to a property right in the face of the plain language of the statute.
Therefore, plaintiffs' claim must be analyzed as a refusal to hire for political patronage reasons, rather than as a dismissal for such reasons.
Refusals to Hire for Reasons of Political Patronage.
Tradition has it that it was Andrew Jackson, upon his election as President of the United States, who cloaked the practice of political patronage in hirings of public employees with the mantle of respectability.
Ever since, "Old Hickory's" approach has certainly been a time-honored albeit cynical practice of governments at all levels, but particularly in local government. As is well known, it has been ameliorated to some extent by the salutary development of the institution of civil service.
Until 1976, public employees who were not under civil service were more or less at the mercy of the politicians in both obtaining and retaining employment. However, in that year, the Supreme Court decided the landmark case of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
In Elrod it was held that the discharge of non-policymaking employees purely because they were not of the party or political philosophy of a newly elected administration was violative of their First Amendment rights. Elrod must be carefully read for a proper evaluation of its precedential effect, however.
The problem in interpreting Elrod arises from the fact that there was no opinion of the Court. The plurality opinion is widesweeping in its discussion of First Amendment rights. It contains sweeping denunciations of the entire patronage system, and its language is broad enough to condemn political patronage as a basis of personnel decisions whether they involve initial hirings or discharges. However, only three judges joined in this plurality opinion.
In the concurring opinion, to which the holding of the court is limited, it was specifically stated
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Messer v. Curci
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