Shakman v. Democratic Organization of Cook County

• Decision Date: 05 July 1983
• Docket Number: No. 82-3079,82-3079
• Citation: 722 F.2d 1307
• Parties: Michael SHAKMAN, et al., Plaintiffs, and Horace Lindsey, Petitioner-Appellant, v. DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants, and Edmund L. Kelly, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1307

722 F.2d 1307

Michael SHAKMAN, et al., Plaintiffs and Horace Lindsey, Petitioner-Appellant, v. DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants and Edmund L. Kelly, et al., Respondents-Appellees.

No. 82-3079.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1983.

Decided July 5, 1983 ^*.

Opinion Sept. 21, 1983.

Patrick T. Murphy, Chicago, Ill., for petitioner-appellant.

Rick Halprin, Ben. Atty., Chgo. Park Dist., John J. Verscaj, Bell, Boyd & Lloyd, Chicago, Ill., for respondents-appellees.

Before CUDAHY and ESCHBACH, Circuit Judges, and SWYGERT, Senior Circuit Judge.

PER CURIAM.

This appeal concerns the scope of the Shakman decree with respect to highranking, policymaking public employees. Specifically, the question presented is whether the Superintendent of Employment for the Chicago Park District is a policymaker or confidential employee such that he is excluded from the first amendment's protection from harassment for his political views. We affirm the district court's judgment that the position of Park Superintendent of Employment is exempt from the Shakman decree.

I

The facts are undisputed. The Chicago Park District ("Park") is governed by the Chicago Park Commission ("Commission") which is composed of five commissioners who are appointed by the Mayor of Chicago to serve staggered five-year terms. Ill.Rev.Stat. ch. 105 p 333.3 (1979 & Supp.1982-83). These commissioners are authorized to appoint a superintendent of employment for a six-year term to serve under their direction and supervision. Id., ch. 24 1/2 Sec. 79. The Superintendent of Employment is one of eight Park employees, including the commissioners themselves, who are exempt from the Illinois Civil Service Code. Id., ch. 24 1/2 Sec. 90. The Superintendent of Employment and two Park commissioners are members of the Park's Civil Service Board. Id., Sec. 79. As such, he may not be removed except for palpable incompetence or malfeasance in office, and his removal is subject to review by the Illinois courts. Id.

The Park code defines the duties of the superintendent as:

The superintendent of employment shall: (a) Be the head of the department of personnel and Civil Service and shall have the management and control of all matters pertaining hereto; (b) Be the personnel officer of the park district; and shall, under the supervision of the Board of Commissioners and the Civil Service Board, administer and enforce the Civil Service law and rules of the Civil Service Board and shall exercise observation of all employees with regard to the adequate performance of their duties, their conformity to the rules, and to the requirements of their work, their leaves, their absences, and their efficiency records and any and all conditions and circumstances relating to their responsibilities; (c) Supervise the medical, safety, employees' activities and unemployment compensation divisions; (d) Enforce all of the law of the state and provisions of this Code in relation to matters pertaining to public health and sanitary conditions of the Chicago Park District; and (e) Supervise such other functions and responsibilities as may be assigned to this department by ordinance or by the direction of the Civil Service Board or the Board of Commissioners.

Horace Lindsey, Park Superintendent of Employment from January 1977 to January 1983, was, as he admits in his pleadings, a highranking bureaucrat who exercised various powers of management, control, enforcement, supervision, and policy formulation. He supervised 79 employees and, along with the Park General Superintendent, made all of the Park's hiring decisions. He was responsible only to the Commissioners and his acts were subject to public scrutiny. As a member of the Park's Civil Service Board, he was responsible for the formulation and administration of civil service examinations for Park employees. He was charged with implementation of the Shakman decree. Also, in answer to interrogatories prepared by Park counsel in consultation with Lindsey for an earlier Shakman proceeding, Lindsey sought exemption of his position from the Shakman decree on the basis of the position's policymaking and confidential nature.

Lindsey was appointed Park Superintendent of Employment in January 1977 to serve until January 1983. In September 1982 the Commission renewed his contract to cover the period September 1982 through September 1988. Sometime later, Lindsey's support for Richard M. Daley for mayor of Chicago in the upcoming Chicago Democratic primary became generally known. In November 1982 the Commission rescinded Lindsey's second contract on the grounds that the Commission lacked authority to enter into the contract.

Alleging that the rescission was in reality a firing for the expression of his political beliefs in violation of a 1980 consent decree entered into by the Park in the principal case, Shakman v. Democratic Organization of Cook County (No. 69 C 2148 N.D.Ill.), Lindsey sought a rule to show cause and a contempt finding against the Park and several commissioners. ^** Defendants filed a motion to dismiss and a "statement of facts" accompanied by assorted documents. Defendants argued that these documents combined with Lindsey's pleadings "conclusive[ly]" established, as a matter of law, that the position of Superintendent of Employment was exempt from the Shakman decree. Lindsey's response, accompanied by an affidavit, was that the Illinois State Legislature has "preempted" the decision whether the Park Superintendent of Employment was protected by the Shakman decree. Lindsey asked the court to deny the motion to dismiss and set the case for an immediate hearing.

The district court granted defendants' motion to dismiss, observing

It is the considered opinion of this Court that the position of Superintendent of Employment is the very type that must be exempted from the constraints of the Shakman decree. Given the amount of discretion and authority enjoyed by the Superintendent of Employment and given the closeness with which the Superintendent of Employment works with the Park District Superintendent and other high-ranking officials of the District and the City of Chicago, it is clear that the utmost of confidentiality is required to effectively carry out the position.

On appeal Lindsey asks us to reverse the district court, but it is unclear whether he seeks a hearing or believes we can or should reach the merits. He does not discuss the standard of review or what a hearing (before the district court judge as a factfinder) would accomplish. Defendants assert that the standard of review is clear error, citing Barnes v. St. Catherine's Hospital, 563 F.2d 324 (7th Cir.1977), and Schwerman Trucking Co. v. Gartland Trucking Co., 496 F.2d 466 (7th Cir.1974).

II

We recently reviewed the policymaker...