Wetzel v. Tucker

• Decision Date: 23 March 1998
• Docket Number: No. 97-7207,97-7207
• Citation: 139 F.3d 380
• Parties: 13 IER Cases 1468 Lewis W. WETZEL, Appellant, v. Rose TUCKER, Individually and in her capacity as a Luzerne Co. Commissioner; Frank P. Crossin, Individually and in his capacity as Luzerne Co. Commissioner; Peter S. Butera, Individually and in his capacity as a Director of the Northeastern PA Hospital and Education Authority; Jeannette Dombroski, Individually and in her capacity as a Director of the Northeastern Pennsylvania Hospital and Education Authority; Yvonne Bozinski, Individually and in her capacity as a Director of the Northeastern PA Hospital and Education Authority; Northeastern Pa Hospital And Education Authority, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 380

139 F.3d 380

13 IER Cases 1468

Lewis W. WETZEL, Appellant, v. Rose TUCKER, Individually and in her capacity as a Luzerne Co. Commissioner; Frank P. Crossin, Individually and in his capacity as Luzerne Co. Commissioner; Peter S. Butera Individually and in his capacity as a Director of the Northeastern PA Hospital and Education Authority; Jeannette Dombroski, Individually and in her capacity as a Director of the Northeastern Pennsylvania Hospital and Education Authority; Yvonne Bozinski, Individually and in her capacity as a Director of the Northeastern PA Hospital and Education Authority; Northeastern Pa Hospital And Education Authority, Appellees.

No. 97-7207.

United States Court of Appeals Third Circuit.

Argued Nov. 6, 1997.

Decided March 23, 1998.

Donald H. Brobst (Argued), Rosenn, Jenkins and Greenwald, L.L.P., Wilkes-Barre, PA, for Appellant.

Joseph J. Heston (Argued), Dougherty, Leventhal & Price, L.L.P., Kingston, PA, for Appellees.

Before: BECKER, ^* ROTH, Circuit Judges, and DIAMOND, District Judge. ^**

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

Lewis Wetzel brought suit to challenge his discharge as Solicitor for the defendant Northeast Pennsylvania Hospital and Education Association. The district court granted summary judgment for defendants on the ground that Wetzel was a high level public employee, who was sufficiently involved in policy making to make political affiliation a legitimate consideration for his continued employment. Wetzel's appeal presents the recurring question of the nature and extent of the exception to the general principle, announced in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and its progeny, that a public employee who is discharged because of his political affiliation has been deprived of First Amendment rights. We will affirm.

I.

The Northeastern Pennsylvania Hospital and Education Authority was created by Ordinance of the Luzerne County Commissioners to provide tax exempt status to bonds issued under the provisions of the Municipal Authorities Act of 1945, 53 Pa. Stat. §§ 301-22 (West 1997), at the request of health care providers and educational institutions throughout northeastern Pennsylvania. Pursuant to its charter, Luzerne County's three Commissioners appoint the Authority's Board of Directors. The Board consists of five members, who serve staggered five-year terms that expire in consecutive years. Prior to December 31, 1993, the Authority's Board consisted of Dr. Charles Carpenter, Chair; Peter Mailloux, Vice Chair; George Ruckno, Jr., Assistant Secretary/Treasurer; Jeanette Dombroski, and Yvonne Bozinski. Carpenter, Mailloux, and Ruckno were Republicans, and Dombroski and Bozinski were Democrats.

On March 17, 1994, a newly-elected Democratic majority of Commissioners appointed Democrat Peter Butera to replace Ruckno, whose term of office had expired on December 31, 1993. On March 31, 1994, the Board held a reorganization meeting at which the Directors elected Democrat Bozinski to serve as the Board Chair, Democrat Butera as Vice-Chair, and Democrat Dombroski as Treasurer. The Directors also voted to remove appellant Wetzel, a Republican, from his position as Authority Solicitor and replace him with attorney John P. Moses, a Democrat. Wetzel was, and had been, an at-will employee of the Authority who had served as its Solicitor for the previous ten years.

Wetzel thereupon initiated a civil action under 42 U.S.C. § 1983 seeking both compensatory and punitive damages arising from his discharge as Solicitor. He sued Rose Tucker and Frank Crossin, the two Democratic Luzerne County Commissioners who were serving at the time of his discharge; Bozinski, Butera, and Dombroski, the three Democratic Authority Directors who were serving at the time; and the Authority itself. Wetzel alleged that, because his discharge was based solely on his affiliation with the Republican Party, the defendants violated his First and Fourteenth Amendment rights to political association and due process.

After the close of discovery, defendants moved for summary judgment, contending that, as an at-will employee, Wetzel possessed no property interest in his employment subject to protection under the Fourteenth Amendment. In the alternative, they argued that political party affiliation is an appropriate requirement for the effective performance of the duties of Authority Solicitor. Wetzel cross-moved for partial summary judgment on the issue of liability, asserting that the record established that he was terminated for political reasons in contravention of his First Amendment rights of association. The district court granted defendants' Motion for Summary Judgment and denied Wetzel's Cross-Motion for Partial Summary Judgment, concluding that Wetzel's discharge was permissible because political affiliation is an appropriate criterion for the effective performance of the duties of the Authority Solicitor. ¹ This timely appeal followed. Our familiar standard of review is set forth in the margin. ²

II.

As in any case involving the accusation of a politically-motivated discharge of a public employee, we turn first to the Supreme Court's decisions in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod, the Court held that discharging certain public employees solely on the basis of their political affiliation infringes upon their First Amendment rights to belief and free association. See Elrod, 427 U.S. at 355-57, 96 S.Ct. at 2680-82. The Court, however, specifically exempted from this general prohibition the politically-motivated discharge of persons who hold confidential or policy making positions. Id. at 367-68, 96 S.Ct. at 2686-87. In articulating this exception, the Court noted that there is "[n]o clear line ... between policy making and nonpolicymaking positions," but offered instruction by suggesting that "consideration should ... be given to whether the employee acts as an advisor or formulates plans for the implementation of broad policy goals." Id. at 368, 96 S.Ct. at 2687.

In Branti, the Court addressed the difficulty in the wake of Elrod of determining whether, in a given situation, political affiliation is a legitimate factor for a public hiring authority to consider. Branti, 445 U.S. at 518, 100 S.Ct. at 1295. Refining its prior analysis, the Court observed that "the ultimate inquiry is not whether the label of '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." Id.See also Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981) (noting that Branti calls for a "functional analysis" and concluding that "should a difference in party affiliation be highly likely to cause an official to be ineffective in carrying out the duties and responsibilities of the office, dismissals for that reason would not offend the First Amendment").

The character of this inquiry is inherently fact-specific in that it requires a court to examine the nature of the responsibilities of the particular job at issue. See Zold v. Township of Mantua, 935 F.2d 633, 635 (3d Cir.1991). Importantly, this inquiry is focused on "the function of the public office in question and not the actual past duties of the particular employee involved." Brown v. Trench, 787 F.2d 167, 168 (3d Cir.1986); see also Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir.1993); Burns v. County of Cambria, Pa., 971 F.2d 1015, 1022 (3d Cir.1992); cf. Furlong v. Gudknecht, 808 F.2d 233, 236 (3d Cir.1986). Other circuits have used a similar analysis, as we document in the margin. ³ We have held, however, that evidence of past job duties may in some cases be informative. See Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d Cir.1994); Waskovich, 2 F.3d at 1300.

III.

Wetzel contends that political affiliation is not an appropriate criterion for the position of Authority Solicitor. He characterizes the Authority simply as a "conduit" through which tax-exempt bonds are funneled to health care and educational institutions. Citing the facts that the Authority's sole purpose is to serve as a financing mechanism to issue these bonds, that it meets infrequently (only when an institution requests a bond issue), and that it has never turned down a bond request, Wetzel submits that the Authority is a reactive, non-policy making body.

In contrast, the defendants maintain that the Authority is a policy making body whose Solicitor may be terminated appropriately based on his political affiliation. In their submission, the Authority's enabling legislation, as well as the record testimony, compel the conclusion that the Authority's Solicitor acts as an advisor with regard to policy matters, thereby placing political affiliation legitimately among the criteria for the position.

Based on these competing contentions regarding both the general role of the Authority and the particular responsibilities of its Solicitor, our inquiry is by necessity two-fold. We must first address whether the Authority is a policy making body, because if it is not, it would be impossible for the Authority to demonstrate that the party affiliation of the Solicitor is an appropriate requirement for his effective performance. Answering this in the affirmative, we then turn to the central issue of our inquiry: whether the Authority has shown that there is no genuine issue of material fact as to whether political party affiliation is an appropriate criterion for the effective job performance of the Authority's Solicitor. Because we believe that the Authority has met this burden as a matter of law, we conclude that the position of Solicitor is one that falls within the exception laid out in Elrod and its progeny.

A.

To determine whether the...