Regan v. Boogertman

• Decision Date: 26 January 1993
• Docket Number: No. 431,D,431
• Citation: 984 F.2d 577
• Parties: Bonita H. REGAN, Plaintiff-Appellant, v. Edwin BOOGERTMAN, individually, and in his official capacity as the Receiver of Taxes of the Town of Islip, Virginia Allen, Town of Islip, Defendants-Appellees. ocket 92-7627.
• Court: U.S. Court of Appeals — Second Circuit

Page 577

984 F.2d 577

Bonita H. REGAN, Plaintiff-Appellant, v. Edwin BOOGERTMAN, individually, and in his official capacity as the Receiver of Taxes of the Town of Islip Virginia Allen, Town of Islip Defendants-Appellees.

No. 431, Docket 92-7627.

United States Court of Appeals Second Circuit.

Argued Oct. 28, 1992.

Decided Jan. 26, 1993.

Arthur V. Graseck, Jr., Port Washington, NY, for plaintiff-appellant.

Robert M. Calica, Garden City, NY (E. Christopher Murray, Reisman, Peirez, Reisman & Calica, Garden City, NY, of counsel), for defendants-appellees Boogertman, Allen and the Town of Islip.

Robert Oliver, Town Atty., Islip, NY, on the brief, for defendant-appellee Town of Islip.

Before: MESKILL, Chief Judge, WINTER, Circuit Judge, and RESTANI, ^* Judge.

MESKILL, Chief Judge:

This is an appeal from a final judgment entered in the United States District Court for the Eastern District of New York, Wexler, J., granting appellees Edwin Boogertman's, Virginia Allen's and the Town of Islip's motion for summary judgment dismissing appellant Bonita H. Regan's suit brought pursuant to 42 U.S.C. § 1983 claiming that her First and Fourteenth Amendment rights were violated.

According to Regan, defendants violated her constitutional rights by firing her because of her political affiliation. The district court concluded that she held a policymaking position, and therefore partisan loyalty was an appropriate consideration in terminating her employment. Regan argues on appeal that (1) her position was ministerial in nature and therefore she could be dismissed only for cause and (2) the court applied the wrong test to determine whether her termination was a violation of her First Amendment rights.

We affirm the judgment of the district court.

BACKGROUND

Boogertman, a member of the Republican Party and Receiver of Taxes for Islip, appointed Regan to the position of Deputy Tax Receiver for Islip on January 1, 1982. Regan is a member of the Conservative Party, which supported Boogertman and the Republican Party in past elections. In the 1983 and 1987 general elections, Boogertman was again elected for four year terms with the support of the Conservative Party and Regan. After each election, Boogertman informed Regan that she would continue in her position. In 1989, an election year in which Boogertman was not up for reelection, the Conservative Party and Regan opposed the Republican Party and endorsed candidates for the Democrat Party. On November 14, 1989, following the election, Boogertman told Regan that her employment would be terminated unless she resigned. Regan responded that she would not resign. She was subsequently fired.

Regan instituted this suit, alleging that her dismissal was retaliatory for expressing her political views in violation of her First and Fourteenth Amendment rights. She seeks $1 million in compensatory and $5 million in punitive damages, and injunctive relief reinstating her as the Deputy Receiver. As evidence that she was not terminated for cause, Regan submitted a letter of recommendation from Boogertman praising her efficiency and effectiveness in her position. She also claims that members of the Islip Republican Committee told her that her termination was a result of her membership in the Islip Conservative The original defendants ¹ moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b). The district court declined to rule on the motions and instructed the parties to proceed with discovery with the understanding that defendants could renew their motions upon completion of discovery. Defendants renewed their motions at the completion of discovery as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. The court granted the motion and dismissed the complaint, Regan v. Boogertman, 791 F.Supp. 57 (E.D.N.Y.1992), and Regan now appeals the decision.

                Committee.   Allegedly, the decision of the Conservative Party not to endorse the Republican candidates during the 1989 election annoyed Frank Jones, the Republican candidate seeking reelection for Islip Town Supervisor.   After winning reelection, Jones allegedly applied pressure on Boogertman to terminate Regan.   Appellees claim that even if Regan was fired because of her affiliation with the Conservative Party, this was an appropriate consideration because Regan held a policymaking position
                

DISCUSSION

1. Summary Judgment

On appeal from summary judgment, we review de novo whether the summary judgment standard was met. For such a judgment to be proper there must be no genuine issue of material fact, and the moving party must be entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Since there is no dispute as to any material fact in this litigation, the only question is whether the defendants were entitled to judgment as a matter of law.

2. Political Patronage Dismissals

As a general rule, the dismissal of a public employee for purposes of political patronage infringes on the employee's First Amendment rights. Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976). However, protection of First Amendment rights is not absolute, and the Supreme Court has recognized that certain restraints on these rights may be appropriate. Id. Any infringement on First Amendment interests, however, must be scrutinized under a strict standard. The test is whether the action by the hiring authority furthers a "vital government end by a means that is least restrictive of freedom of belief and association." Id. at 363, 96 S.Ct. at 2684. The benefit gained must outweigh the loss in First Amendment rights. Id. The Court recognized that the need for government efficiency and effective implementation of electorate-sanctioned policies was a vital government interest, and therefore the First Amendment would not be offended as long as patronage dismissals were restricted to policymaking positions. Id. at 372, 96 S.Ct. at 2689.

The Supreme Court further defined the test for determining when political affiliation would be an appropriate requirement for employment purposes in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The Court rejected the notion that by merely placing the label of "policymaker" on a position it becomes fair game for political patronage insulation from First Amendment scrutiny. There are some policymaking positions in which political affiliation would not be an appropriate employment consideration, such as a coach of a university football team. Id. at 518, 100 S.Ct. at 1294. There are other positions in which political affiliation is essential, but the position involves no policymaking. To exemplify that type of situation, the Court looked at a scheme in which two election judges of different parties were required to supervise precinct elections. Although not a policymaking position, a change in party affiliation by one of the judges could make the judge ineligible for that position. Id. Therefore, the inquiry is "not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance of the public office involved." Id.

More recently, the Supreme Court in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52, reh'g denied, 497 U.S. 1050, 111 S.Ct. 13, 111 L.Ed.2d 828 (1990), held that party affiliation was not a permissible motivating factor in firing low-level employees. However, the Court affirmed the Elrod- Branti exception for certain high level positions, noting that "[a] government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views." Id. at 74, 110 S.Ct. at 27.

We have interpreted the Branti test to mean "that political affiliation is an appropriate requirement when there is a rational connection between shared ideology and job performance." Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.1988). It is necessary to scrutinize the functions of the position to determine whether there is that connection. And, although the label "policymaker" itself is not necessarily determinative after Branti, we use it here as a convenient shorthand for a person occupying a position calling for party loyalty.

There is no likely circumstance in which a shared ideology is more important than when an elected official appoints a deputy who may act in his or her stead. Elected officials are charged with carrying forth the mandate of the voting public, and in order to effectuate the policies promised the electorate, that official must be able to have trusted advisors and alternates who are directly accountable to that official. See Elrod, 427 U.S. at 367, 96 S.Ct. at 2686; Savage, 850 F.2d at 68; Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982).

By law, the position of Deputy Tax Collector is exempt from civil servant status and the protections afforded therein. N.Y.Civ.Serv.Law § 41 (McKinney 1983). We recognized in Savage that New York has considered many of the same criteria for non-civil service status as does a court in determining whether a position is exempt from First Amendment protection. While the Fourth Circuit has held that if a position is exempt from civil service protection one may presume that dismissal for political affiliation is permissible, Stott v. Haworth, 916 F.2d 134, 142 (4th Cir.1990), we do not rely on this presumption. There are positions that serve at the will of elected officials that have no impact on or connection with the essential functioning of the office. Therefore, it would not satisfy Branti to categorize positions for...