Labor & Employment Law Daily Fired deputy who supported sheriff’s political opponent can’t revive 1st Amendment claim due to ‘policymaking role’
Thursday, April 11, 2019

Fired deputy who supported sheriff’s political opponent can’t revive 1st Amendment claim due to ‘policymaking role’

By Lisa Milam, J.D.

The deputy sheriff could lawfully be terminated for political disloyalty under the Elrod-Branti doctrine. And he fared no better under the Pickering balancing test.

A county sheriff was entitled to refuse to reappoint a deputy sheriff who supported his political opponent in his reelection campaign, a divided Fourth Circuit panel held. Affirming dismissal of his First Amendment free speech and political affiliation claims, the appeals court explained that the lower court properly concluded that the Elrod-Branti doctrine permits public officials to fire certain employees for their political disloyalty—and precluded the deputy’s constitutional claims. Judge King dissented (McCaffrey v. Chapman, April 9, 2019, Quattlebaum, A.).

Supported the losing candidate. The deputy sheriff had worked in the Loudoun County, Virginia, sheriff’s office since 2005. He supported the sheriff’s initial 2011 bid for office but, in the 2015 election, he supported the opposing candidate, even posting election signs for the other candidate on his front lawn. The sheriff felt this was disloyal and, when he won reelection, he informed the deputy that his appointment would not be renewed. (Under Virginia law, sheriffs have authority to appoint deputy sheriffs, and those appointments expire at the end of a sheriff’s four-year term—although the appointments are typically renewed when the sheriff is reelected.)

In addition to refusing to reappoint him, the sheriff lowered the deputy’s final performance evaluation score (thereby preventing him from receiving a bonus) and interfered with his chances to procure a position with the police department in a nearby municipality, but these allegations were not at issue here.

Suit dismissed. This lawsuit ensued. The discharged deputy asserted First Amendment claims contending the sheriff violated his First Amendment rights of free speech and political association under the federal and state constitutions. After the case was removed to federal court, the claims were dismissed based on the First Amendment’s Elrod-Branti exception, which allows public officials to terminate certain public employees for supporting a political opponent “in order to give effect to the democratic process.”

Elrod-Branti exception. The Fourth Circuit established a two-step inquiry for determining when party affiliation is an appropriate job requirement: (1) whether the position at issue relates to partisan political interests and, if so, (2) whether the particular job responsibilities are such that “party affiliation is an equally appropriate requirement.” Previously, the appeals court applied the test to a deputy sheriff position in North Carolina and, in a divided en banc decision, found that the exception applied because deputies play an important role in effectuating the sheriff’s policies and goals. It noted, however, that the title isn’t the test—it’s the deputy’s actual job duties that matter. Further laying the legal groundwork, it explained that courts are to look at whether the electorate approves of the policies on which the sheriff ran, what role the deputy plays in implementing those policies, and the relevant state law on the relationship between sheriffs and their deputies.

Applying these principles to the facts at hand, the appeals court found the sheriff ran on a platform outlining how the sheriff’s office should be run, and has the duty to carry out these electorate-approved policies. Moreover, in practice, the sworn deputy sheriff plays an important role in furthering the sheriff’s stated policies. Consequently, the sheriff “is entitled to carry out the policies on which he ran and won with deputy sheriffs who did not oppose his re-election,” the court concluded. Furthermore, Virginia law concerning the roles of sheriffs and their deputies “confirms that deputies performing law enforcement functions have a policymaking role.” Thus, the Elrod-Branti policymaking exception applied.

The deputy contended that he was not a policymaker for the sheriff’s office and did not act as a spokesperson for the department, nor represent the sheriff or speak on his behalf. He also asserted that he was far down on the chain of command. These facts, even accepted as true, could not save his complaint, though—he was a sworn deputy engaged in law enforcement activities, and his was not merely a custodial role.

Pickering test. Having disposed of the suit based on the Elrod-Branti exception, the district court never reached the Pickering balancing test. Contrary to the deputy’s contention, the district court did not err in skirting the issue, but the Fourth Circuit panel nonetheless addressed it here. The appeals court considered the deputy’s political speech to be on a matter of public concern, but found the balancing test weighed in the sheriff’s favor. Indeed, the appeals court explained, the balancing test typically favors the public employer when the Elrod-Branti exception is in play. This is because the elected official (the sheriff, in this case) has “an overriding interest in ensuring his ability to implement his policies through his deputies.” As a result, the deputy fared no better under the Pickering test.

Dissent. Judge King rejected what he saw as a sweeping declaration that deputy sheriffs tasked with law enforcement duties are subject to political firing, in any state. He strongly rejected the circuit precedent, issued two decades ago, on which the majority hung its hat, and asserted that here, the court has gone much farther. The vigorous dissent in that decision lamented (correctly, in his view) that the majority had made the Elrod-Branti exception into the rule, eviscerating First Amendment protections for these public employees in the process. But at minimum, King argued, that precedent should be construed as limited to the specifics of North Carolina law and of the role of deputy sheriffs in that state.

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