Savage v. Gorski, s. 908

• Decision Date: 20 June 1988
• Docket Number: Nos. 908,982,981,D,s. 908
• Citation: 850 F.2d 64
• Parties: Violet A. SAVAGE, Elbert Hargesheimer, III, and Paul A. Angrisano, Plaintiffs- Appellees, v. Dennis T. GORSKI, Individually and as Erie County Executive-Elect; James V. Stanton, Individually and as Chairman of the Transition Advisory Committee for the Erie County Executive- Elect, Defendants, Dennis T. Gorski, Defendant-Appellant. ockets 88-7019, 88-7027 and 88-7029.
• Court: U.S. Court of Appeals — Second Circuit

Page 64

850 F.2d 64

Violet A. SAVAGE, Elbert Hargesheimer, III, and Paul A Angrisano, Plaintiffs- Appellees, v. Dennis T. GORSKI, Individually and as Erie County Executive-Elect; James V. Stanton, Individually and as Chairman of the Transition Advisory Committee for the Erie County Executive- Elect, Defendants Dennis T. Gorski, Defendant-Appellant.

Nos. 908, 981, 982, Dockets 88-7019, 88-7027 and 88-7029.

United States Court of Appeals Second Circuit.

Argued April 4, 1988.

Decided June 20, 1988.

Kenneth A. Schoetz, First Asst. Co. Atty., Buffalo, N.Y. (Patrick H. NeMoyer, Erie Co. Atty., of counsel), for defendant-appellant.

Ralph Markus Mohr, Lancaster, N.Y., for plaintiff-appellee Savage.

Michael F. Perley, Buffalo, N.Y., for plaintiffs-appellees Hargesheimer and Angrisano.

Before OAKES, WINTER, Circuit Judges, and CEDARBAUM, District Judge. ^*

OAKES, Circuit Judge:

This appeal is by Dennis T. Gorski, who assumed office as County Executive for Erie County on January 1, 1988. Gorski was preliminarily enjoined by the United States District Court for the Western District of New York, John T. Elfvin, Judge, from terminating the employment of three Erie County employees on the theory that firing them would violate their First and Fourteenth Amendment rights. The employees are Violet A. Savage, Confidential Secretary to the Director of the Erie County Correctional Facility; Elbert Hargesheimer, III, Coordinator for Pre-Trial Release Services in Erie County; and Paul A. Angrisano, First Deputy Service Officer for the County Veterans Service Agency. Each position is classified as "exempt under New York State Civil Service law." Because we believe that the plaintiffs failed to satisfy this circuit's standard for the issuance of a preliminary injunction, we reverse.

Gorski, a former New York State assemblyman, won a contested Democratic primary in September 1987, and won the November 3 general election for Erie County Executive with a plurality of nearly 90,000 votes out of 326,000 votes cast. He then requested from the Erie County Department of Personnel a list of permanent county employee positions not protected by statute or collective bargaining agreement. The list, entitled "Managerial/Confidential," contained 143 title positions and the name of each current job holder. Of the 8,000 employees in the County of Erie, only those 143 hold policy-making or confidential positions exempt under New York Civil Service laws. One of Gorski's aides removed the names, added the salary range for each position, and turned over the list to Gorski. Gorski then selected the positions he wished to fill with individuals he believed were qualified to assist him in the process of fulfilling his campaign promises.

On November 9, 1987, the former deputy county executive sent a memo to the head of each county department, stating that she had been advised that all "policy makers" would be replaced and that anyone wishing to apply for a position with the Gorski administration should submit a resume through the county personnel department. None of the appellees submitted a resume to the personnel department, although Angrisano, the Veterans Service Officer, submitted a resume to the Gorski Transition Advisory Committee. His was one of nearly 2,000 received.

It should be noted that the list from which Gorski determined which positions he desired to fill with his appointments did not contain the name, political affiliation, or political activity of any individual employed in county government. There is no indication in our record that Gorski at any time sought to determine the political affiliation or political activity of any individual on the list.

On December 14, 1987, termination notices were sent to sixty-nine county employees, including Savage, Hargesheimer, and Angrisano. Each notice stated that Gorski would be appointing an individual to fill each position and that "your services are no longer needed effective the close of business December 31, 1987." On December 22, ten of the dismissed employees sought to obtain a temporary restraining order (TRO) to prevent their dismissals Savage is the Confidential Secretary to the Director of the Erie County Correctional Facility. She testified that her family is active in Republican Party politics in Erie County, her husband being a Republican Councilman in the Town of Alden and her son a member of the Town Republican Committee. She also participates in various fundraising efforts for the Republican Party. She was hired as senior clerk stenographer at the correctional facility in 1977, and her position was made an exempt job in conformity with a county policy, effective as of January 1, 1986, to provide department heads with confidential secretaries. She is one of twelve such secretaries in Erie County government. According to the position's job description, Savage acts on phone messages to the superintendent involving confidential matters such as personnel actions, labor relations, and legal actions, and may be responsible for compiling confidential reports. She is also responsible for personnel records and files for 180 employees, as well as confidential files of the Superintendent. The job description states that, while the Confidential Secretary works under the general supervision of the Superintendent, there is "leeway allowed for the exercise of independent judgment regarding departmental policies and procedures." Savage did not submit her resume or request for job retention prior to receiving her termination notice; however, one day prior to bringing this lawsuit, and seven days after receipt of the termination notice, she did send a letter to the Gorski Transition Advisory Committee requesting job retention. Gorski testified that prior to the lawsuit he did not know who Savage was.

pursuant to 42 U.S.C. Sec. 1983 (1982). A TRO was not issued, but Judge Elfvin held a hearing on December 30 and 31, at which Savage, Hargesheimer, and Angrisano each testified.

Hargesheimer's job as Coordinator for Pre-Trial Services calls for "planning, implementing and coordinating" the county's Pre-Trial Release Program. The part-time position, for which he is paid approximately $23,000 per year, also permits him to conduct his law practice in the town of Hamburg. According to its job description, the position involves supervising a number of Deputy Confidential Investigators, preparing and disseminating public information materials about the program, and coordinating program activities involving police agencies, prosecutors, and the courts. Hargesheimer testified that he has no discretion in determining who should be released from jail while awaiting trial, claiming that state guidelines are determinative on the issue.

Hargesheimer is "[m]ore than active" in local Republican Party politics and has been a Republican committeeman since 1968, an officer in the Republican town committee of Hamburg since 1978, and counsel to the Erie County Republican Party since 1980. He did not submit a request for job retention until after being notified of his termination. Gorski testified that he was aware of Hargesheimer's party affiliation, but did not know that Hargesheimer was director of the pretrial program when he decided to fill the position with his own appointee.

Angrisano's service as First Deputy Service Officer for the County Veterans Service Agency was a full-time position having an annual salary of in excess of $32,000. He maintains outside contacts with veterans' service organizations, attends public meetings regarding county proposals affecting veterans, and gives extemporaneous talks on county veterans' programs. While Angrisano does not have discretion with respect to benefits awarded to veterans, he did create an Agent Orange program for Erie County and has performed various tasks not listed in his job description. He applied in November for retention as First Deputy Service Officer. Angrisano is a member of the Republican Party. Gorski testified that he did not know Angrisano's political affiliation when he decided to terminate the current holder of the First Deputy Service Officer position. Angrisano did not agree, according to his testimony, with Gorski's view that Vietnam veterans were underemployed and that his agency was to blame.

THE DISTRICT COURT'S DECISION

Although Judge Elfvin granted the preliminary injunction on December 31 without explaining his rationale, he later stated his reasons in an opinion. Savage v. Gorski, Nos. 87-1559E-64E, -1566E-67E, -1590E, slip op. at 13 (W.D.N.Y. Mar. 23, 1988) (available on WESTLAW, 1988 WL 27564). There, after recounting the facts and noting the Second Circuit test for a preliminary injunction, he stated that Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), hold that the firing of public employees solely on the basis of their political affiliations violates the First Amendment and that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." (Quoting Elrod, 427 U.S. at 373, 96 S.Ct. at 2690.) He noted that Elrod protected only persons serving in nonpolicymaking positions from termination based solely on their political affiliations, but emphasized that Branti refined the analysis, so that "the ultimate 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 the effective performance of the public office involved." (Quoting Branti, 445 U.S. at 518, 100 S.Ct. at 1295.) Judge Elfvin went on to hold that the principles of Elrod and Branti apply to the firings involved here since there was "no question that their affiliation with the Republican Party was a 'substantial' or 'motivating' factor...