March 9, 2012
On February 13, 2012, the Ninth Circuit Court of Appeals outlined the “policymaker” exception to the First Amendment, which serves as a narrow exception to the general rule against politically-motivated dismissals. In Hunt v. County of Orange, et al., the Ninth Circuit described the parameters of the “policymaker” exception, which permits employees in “policymaking positions” to be disciplined for political speech so that “representative government [is] not undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.’ [Citation.]” Although the Ninth Circuit determined that the exception did not apply in Hunt, it nevertheless recognized the individual defendant’s qualified immunity because of his reasonable belief that his conduct did not violate a clearly established constitutional right.
Plaintiff William Hunt was a lieutenant in the Orange County Sheriff’s Department and served as the Chief of Police Services for the City of San Clemente. In May 2005, Hunt announced that he would challenge Michael Carona, the incumbent Orange County sheriff, in the upcoming 2006 election. During the campaign, Hunt issued various public statements critical of Carona’s performance, including allegations of corruption in the department. Carona defeated Hunt in the June 6 election. On June 7, Carona placed Hunt on administrative leave pending a personnel investigation relating to his speech and conduct during the campaign. On October 31, 2006, Hunt was served with a notice of pending demotion for “failing to perform [his] duties and responsibilities as a member of the Department’s management team’ and for violation of department rules prohibiting, among other things, bringing discredit upon the department.”
Eventually, Hunt filed a lawsuit against Carona, Orange County, and other defendants under Section 1983 for alleged violations of his First and Fourteenth Amendment rights as well as several state law causes of action that were dismissed and were not addressed by the Ninth Circuit. As it pertains to this discussion, the district court granted Carona’s motion for judgment as a matter of law after determining that Hunt occupied a policymaking position for which political loyalty was an appropriate requirement. Therefore, Hunt’s demotion for political reasons did not violate the First Amendment. Alternatively, the district court held that even if Hunt was not deemed a policymaker, Carona was still entitled to qualified immunity.
Hunt appealed the district court’s determination.
Generally, the First Amendment prevents an elected official from disciplining or retaliating against an employee for his political opinions, memberships or activities. However, the United States Supreme Court carved out an exception to this general prohibition permitting discipline on the basis of political beliefs for employees holding a “policymaking position.” Since such discipline may infringe on constitutional rights, it has also been held that the exception is “narrow” and should be applied with caution. This is because of the fear that “an expansion of this exception could discourage some of the most capable and qualified people from running for higher office, and may also have a chilling effect on whistleblowing.”
In determining whether the “policymaker” exception applies, the key question is “’whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.’ [Citations.]” Additionally, where the discipline at issue is dismissal, the termination based on political considerations must further a “vital government end” because of the constitutional right infringement. “Crucially, ‘since . . . it is the government’s burden to demonstrate an overriding interest in order to validate an encroachment on protected interests, the burden of establishing this [policy maker] justification as to any particular respondent will rest on the [government].’ [Citation.]”
In this particular case, the Ninth Circuit determined that Hunt did not fall within the policymaker exception because it held that there was nothing in the record to suggest that political considerations were an appropriate requirement for Hunt’s position. In this regard, the Ninth Circuit relied on the jury’s factual findings that Hunt did not have broad responsibilities, that he did not have authority to speak in the name of the policy makers, and influence on programs. It also focused on the fact that “the jury also found that Hunt’s political statements . . . did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”
Although it held that the policymaker exception did not apply, the Ninth Circuit nevertheless ruled that Carona was entitled to qualified immunity, which “shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.’ [Citation.]” In so holding, the Ninth Circuit reasoned that “[e]ven if Carona engaged in the appropriate analysis and wrongly concluded that Hunt was a policy-maker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote Hunt without violating his constitutional rights.” Thus, by granting Carona qualified immunity, the Ninth Circuit acknowledged that the “policymaker” exception was not so clearly defined at the operative time so as to make Carona’s actions unreasonable.
This case is significant because it clarifies that a public employee may, under certain circumstances, be disciplined for his or her political speech. The key will be for the hiring authority to demonstrate that restrictions on political statements is an appropriate requirement for the effective performance of the public office involved. If dismissal is the discipline, the hiring authority will also need to show that the dismissal furthers a vital government end. These burdens will rest with the hiring authority.