Assaf v. Fields ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
5-19-1999
Assaf v. Fields
Precedential or Non-Precedential:
Docket 98-7153
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Recommended Citation
"Assaf v. Fields" (1999). 1999 Decisions. Paper 137.
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Filed May 19, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-7153
EUGENE F. ASSAF,
Appellant
v.
GEORGE C. FIELDS; GARY E. CROWELL
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 97-cv-00343)
District Judge: Hon. William W. Caldwell
Argued: December 14, 1998
Before: SLOVITER and COWEN, Circuit Judges,
and OBERDORFER,* District Judge
(Filed May 19, 1999)
Lawrence S. Markowitz (Argued)
Markowitz & Krevsky
York, PA 17405
Attorney for Appellant
_________________________________________________________________
*Hon. Louis F. Oberdorfer, United States District Judge for the District
of Columbia, sitting by designation.
D. Michael Fisher
Attorney General
R. Douglas Sherman
Calvin R. Koons (Argued)
Senior Deputy Attorneys General
John G. Knorr, III
Chief Deputy Attorney General
Appellate Section
Office of Attorney General
of Pennsylvania
Harrisburg, PA 17120
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Plaintiff Eugene F. Assaf brought this civil rights action
against the Pennsylvania state officials responsible for his
dismissal from public employment. Assaf's complaint,
invoking 42 U.S.C. S 1983, charges that appellees George C.
Fields and Gary E. Crowell terminated his employment for
political reasons, thereby violating the First Amendment
protections for belief and association. The District Court, in
ruling on the defendants' motion for summary judgment,
concluded that Assaf 's job was not one for which party
affiliation is an appropriate requirement but nonetheless
entered summary judgment for defendants on the basis of
qualified immunity. Assaf v. Fields, 999 F. Supp. 622, 630-
33 (M.D.Pa. 1998). Assaf filed a timely appeal. Our review
of the grant of summary judgment is plenary. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d
Cir. 1998).
II.
The record, reviewed in a light favorable to Assaf, reveals
the following: Assaf was hired in October 1988 as Director
2
of the Bureau of Vehicle Management for the
Commonwealth of Pennsylvania. Assaf, a registered
Democrat, was hired by then-Secretary of General Services
David Jannetta, who was also a registered Democrat. At the
time Assaf was hired, Robert Casey, also a Democrat, was
Governor of Pennsylvania.
The Bureau of Vehicle Management is an agency within
the Department of General Services. Assaf reported to the
Deputy Secretary for Procurement, appellee George Fields.
Fields in turn reported to the Director of the Department of
General Services, appellee Gary Crowell. Crowell's position
was a cabinet-level one.
Assaf was advised in writing of his employment as a Fleet
Maintenance Manager (also referred to as Director of the
Bureau of Vehicle Management) and that his position was
under the Senior Management Service, a category of
Commonwealth positions "in the unclassified service which
have broad policy participation and management
responsibility." As such, he was exempt from
unemployment compensation coverage but covered by the
Management Benefits Program. He was further advised that
in that position he "serve[s] at the pleasure of the agency
head."
Assaf 's job description listed as "Major Duties" of the
position: "Directs the Bureau of Vehicle Management to
meet the transportation needs of all requesting
Commonwealth Departments, Agencies, and Commissions
while remaining within the financial guidelines of self-
generated income." The job description enumerated ten
specific duties:
1. Participates with the Deputy Secretary in planning,
developing and implementing appropriate standards,
procedures and policies for obtaining and maintaining
the Commonwealth Automotive Fleet.
2. Stays abreast of the automobile market and
recommends when to purchase vehicles based on
current sales volume, amount of income received,fixed
and semi-fixed expenses, variable expense, andfixed
overhead expense.
3
3. Determines the best type of vehicles to purchase.
. . .
4. Directs the operation of the Commonwealth Garage
concerned with the service and repair of the automotive
fleet. Negotiates and administers regular maintenance
contracts with service Agencies and with dealerships
for repair and preventative maintenance.
5. Directs the maintenance of all records and reports
concerning the Commonwealth Fleet. . . .
6. Oversees the disposition of the Commonwealth
owned vehicles. These vehicles are sold through an oral
auction which is open to the public. Makes sure that
all activities are carried out according to approved
policy. Interacts with the general public whenever
concerns arise.
7. Directs the payments of repair invoices from
various vendors. . . .
8. Oversees the repair of vehicles at the
Commonwealth Garage. . . .
9. Directs the temporary vehicle fleet making it
available for use by the requesting Commonwealth
Agencies to meet their temporary transportation needs.
. . .
10. Works closely with the various Bureau Chiefs and
supervisory personnel to maintain an efficient, logical
and financially sound operation.
Assaf supervised the three divisions that made up the
Bureau: the Administrative Division, the Vehicle Operations
Division, and the Vehicle Maintenance Division. He directly
supervised the three employees who headed these divisions.
The Bureau as a whole employed a total of thirty-three to
forty-six employees over whom Assaf exercised indirect
supervision. His starting salary was $37,000 and at the
time he was terminated his salary had risen to $52,000.
From the written description, it might have appeared that
Assaf 's title as Director signified a public official with
significant authority. Admittedly, the Director ran the day-
to-day operation of the Bureau, which entailed overseeing a
4
fleet of approximately 8,000 vehicles. However, Assaf
testified to the substantial limits of his authority. For
example, the Director did not have the ultimate authority to
hire employees within the Bureau. See Assaf at 50.1 There
is evidence that he also did not have the authority to fire
Bureau employees. See James W. Martin at 31; Gregory
Green at 8-9. Rather, such authority rested ultimately with
the Deputy Secretary for Procurement, a position held by
Fields. See Green at 9. At most, Assaf could formally
reprimand employees who were under his indirect
supervision, which he did on a number of occasions. See
Assaf at 57-60.
Assaf testified that he had no authority over the Bureau's
budget or purchasing decisions and did not negotiate
maintenance contracts with outside vendors. See Assaf at
39, 41, 44. Although Assaf assigned vehicles to the various
agencies, Fields had to approve each such decision and
Fields retained control over executive vehicle assignments.
See Fields at 65-66. Maintenance of the Commonwealth
vehicles was performed at the Commonwealth Garage, and
although Assaf could approve outside repair shops if they
accepted the standard contract from the Commonwealth,
the rates for payment were set according to a
predetermined formula. See Assaf at 43-44; Fields at 61.
Similarly, although Assaf was listed as having
responsibility for auctions, in fact the vehicle auctions were
conducted pursuant to a formula used to select the
vehicles, and vehicles could not be auctioned unless Fields
approved the lists. The target prices for the vehicles at
auction were also set by a formula, see Fields at 62-63, and
the formula preceded Assaf's tenure, see Assaf at 60.
On January 21, 1995, Thomas Ridge, a Republican, was
sworn in as Governor of the Commonwealth of
Pennsylvania. Shortly after Governor Ridge's inauguration,
Jannetta resigned as Secretary of General Services and
Governor Ridge appointed Gary Crowell, a Republican, in
_________________________________________________________________
1. Throughout this opinion all citations to deposition testimony will be
referenced by the name of the deponent followed by the page number of
the transcript.
5
his stead. Governor Ridge reappointed Fields as Deputy
Secretary for Procurement.
On March 29, 1995, Fields notified Assaf by letter that
his services were no longer needed. Fields at 44. The
termination decision was made by Secretary Crowell.
Crowell at 22-23. According to Assaf, Fields informed him
that his termination was for political reasons. See Assaf at
76-77. Fields denies discussing with Assaf whether politics
were involved. See Fields at 44.
Assaf applied for unemployment compensation pursuant
to the Pennsylvania Unemployment Compensation Law. His
application was ultimately denied by the Pennsylvania
Unemployment Board of Review, which ruled that Assaf
was not entitled to benefits because his was "a major non-
tenured policymaking" position and therefore specifically
exempted from the unemployment compensation scheme.
On March 5, 1997, Assaf filed this lawsuit in the District
Court for the Middle District of Pennsylvania, charging that
Fields and Crowell violated the First Amendment by
terminating his employment for political reasons. Fields
and Crowell moved for summary judgment. Without
conceding that Assaf had in fact been fired for political
reasons, they urged that Assaf's job was, in any event, not
one for which the First Amendment provides protection. In
the alternative, they argued that even if Assaf 's position
was constitutionally protected they were nonetheless
entitled to qualified immunity because the unlawfulness of
the dismissal would not have been apparent to reasonable
officials under clearly established law.
In ruling on the defendants' motion, the District Court
first rejected the defendants' argument that Assaf had
received the position through political patronage and could
not now complain that he lost the position for a similar
reason. See Assaf, 999 F. Supp. at 628 (citing Branti v.
Finkel, 445 U.S. 507, 512 n.6 (1980) (rejecting argument
that "because the [employees] knew the system was a
patronage system when they were hired, they did not have
a reasonable expectation of being rejected when control of
the office shifted to [another party].")). The court next
rejected defendants' argument that political affiliation was
6
a qualification for the job. The court noted that"the
overarching factor is whether the worker has ``meaningful
input into decision making concerning the nature and
scope of a major [government] program.' " Id. at 630 (citing
Peters v. Delaware River Port Auth., 16 F.3d 1346, 1353 (3d
Cir. 1994)). The District Court concluded that "overseeing
the cars owned by the Commonwealth and used by its
agencies . . . is not a major government program . .. [as it
does not] involve services to the general public or to a
sizable portion of the public." Id. The court thus ruled that
Assaf was entitled to First Amendment protection from
political discharge. Nonetheless, it held that the defendants
were entitled to qualified immunity because it was not
clearly established that Assaf could not be fired for political
reasons. See id. at 633.
III.
Summary judgment is appropriate only if the record
discloses that "there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). The record is to be
examined in a light most favorable to the non-movant, in
this case, Assaf. See Peters v. Delaware River Port Auth., 16
F.3d 1346, 1349 (3d Cir. 1994).
At the outset, we note that the only issue before us on
this appeal is the propriety of the District Court's ruling
that Fields and Crowell were entitled to qualified immunity.
Although much of appellees' brief appears directed to the
question of whether Assaf's position was "inherently
political," Appellees' Br. at 25, the appellees have neither
cross-appealed the ruling on that issue nor have they
included this as one of their issues on appeal. Accordingly,
we will focus on the District Court's determination that
under clearly established law, reasonable officials would not
have perceived that terminating Assaf for political reasons
was unconstitutional. This necessarily requires that we
review the applicable law, with particular attention to the
dates the leading opinions were announced.
In Siegert v. Gilley, 500 U.S. 226, 231 (1991), the
Supreme Court explained that "the proper analytical
7
framework" for addressing qualified immunity claims is to
ascertain first whether plaintiff's claims make out a
violation of a constitutional right. See also Brown v.
Grabowski, 922 F.2d 1097, 1110 (3d Cir. 1990). Only if
such a violation has been alleged need we proceed to
determine whether, in the light of "clearly established law,"
the unlawfulness of the action would have been apparent to
a reasonable official. See Siegert, 500 U.S. at 232 ("A
necessary concomitant to the determination of whether the
constitutional right asserted by the plaintiff is ``clearly
established' at the time the defendant acted is the
determination of whether the plaintiff has asserted a
violation of a constitutional right at all."); County of
Sacramento v. Lewis, 523 U.S. 833, ____ n.5, 118 S. Ct.
1708, 1714 n.5 (1998) ("As in any action under S 1983, the
first step is to identify the exact contours of the underlying
right said to have been violated.").
The Supreme Court first established the proposition that
as a general matter, a public employer cannot, consistently
with the First Amendment, terminate a public employee for
political reasons in Elrod v. Burns, 427 U.S. 347 (1976). In
writing for a three-Justice plurality, Justice Brennan
reasoned that because requiring financial and campaign
assistance to the favored political party "is tantamount to
coerced belief " and a required pledge of allegiance
"compromise[s] the individual's true beliefs," id. at 355, it
follows that "the practice of patronage dismissals clearly
infringes First Amendment interests," id. at 360. He also
reasoned that conditioning public employment on
patronage support "inhibits protected belief and
association." Id. at 359 (citing, inter alia, Perry v.
Sindermann, 408 U.S. 593 (1972)).
He recognized that the prohibition was not absolute, but
allowed an exception only for those in "policymaking"
positions "to insure that policies which the electorate has
sanctioned are effectively implemented." Id. at 372. The
plurality opinion states that "[i]n determining whether an
employee occupies a policymaking position, consideration
should . . . be given to whether the employee acts as an
adviser or formulates plans for the implementation of broad
goals." Id. at 368. The Court concluded, however, that the
8
employees whose terminations were at issue in Elrod, (the
chief deputy of the process division of a sheriff's office, a
process server, a process division employee, and a bailiff
and security guard at a county juvenile court) did not fall
within the exception.
The concurring opinion, written by Justice Stewart on
behalf of himself and one other Justice, declined to
comment on the first of the plurality's two rationales (that
a patronage system tended to coerce employees into
compromising their true beliefs) but agreed with the second
rationale, i.e. that patronage dismissals effectively imposed
an unconstitutional condition on the receipt of a public
benefit. The two concurring Justices also agreed that the
Elrod plaintiffs did not fall within the class of employees
with "policymaking" responsibilities who were exempted
from First Amendment protection. See id. at 374-75.
Four years later, in Branti v. Finkel, 445 U.S. 507 (1980),
a firm majority of the Court, this time speaking through
Justice Stevens, reiterated that the First Amendment
prohibits discharge of public employees for their party
affiliation. In Branti, the Court addressed the district
court's conclusion, affirmed by the court of appeals, that
assistant public defenders were not the type of
policymaking, confidential employees exempted from the
general prohibition on politically motivated dismissals. The
Court eschewed overreliance on labels such as
"confidential" or "policymaking" and stated that "[i]n sum,
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." Id. at
518. Applying this standard, the Court agreed that
assistant public defenders did not fall within the exception
to the general prohibition against politically motivated
dismissals from public employment. See id. at 520.
The Branti-Elrod decisions were widely publicized,
particularly among officials in positions in state and local
governments who have authority to hire and fire
government employees. It is reflective of this general
knowledge that Fields and Crowell do not contend that they
9
were unaware of the severe limitation that was now placed
on terminations because of political affiliation. All that
remained after Branti-Elrod was the application of the
principle to the positions of the plaintiffs who brought suit.
Illustrations were soon forthcoming from all the circuits.
This court applied and elaborated on the principles
enunciated in Elrod and Branti in a series of cases decided
over the last eighteen years. The year after the Branti
decision, we stated in Ness v. Marshall, 660 F.2d 517, 521
(3d Cir. 1981), that the Court's opinion calls for a
"functional analysis," which entails an examination of
whether "a difference in party affiliation[would] be highly
likely to cause an official to be ineffective in carrying out
the duties and responsibilities of the office," in which case
a dismissal for political reasons "would not offend the First
Amendment." We noted that the Elrod plurality suggested
that "employees who act as advisers, who formulate plans
for implementing broad goals, or whose responsibilities are
either not well defined or of broad scope are more likely to
function as policymakers." Id. at 520 (citing Elrod, 427 U.S.
at 367-68). Because the duties of the plaintiffs in Ness, the
city solicitor and assistant city solicitors of York,
Pennsylvania, included "rendering legal opinions, drafting
ordinances, [and] negotiating contracts" for the city, which
we concluded were "intimately related to city policy," we
held that party affiliation was an "appropriate (even if not
necessary) requirement" for their effective performance. Id.
at 522.
Again, in Brown v. Trench, 787 F.2d 167 (3d Cir. 1986),
we held that the Assistant Director of Public Information for
a Pennsylvania county could be dismissed on account of
her political affiliation because her "position is one which
cannot be performed effectively except by someone who
shares the political beliefs of the Commissioners." Id. at
170. Although we reversed judgment for the defendants
because Brown had not been given a pretermination
hearing, we used that decision as a vehicle to "specif[y] the
factors that indicate that a position falls within the Branti
test." Id. at 169. Looking to cases decided by other courts,
we identified as relevant "whether the employee's duties are
simply clerical or related to law enforcement" or
10
"nondiscretionary or technical," "whether the employee
participates in Council discussions or other meetings,
whether the employee prepares budgets or has authority to
hire or fire employees, the salary of the employee, and the
employee's power to control others and to speak in the
name of policymakers." Id. (citations omitted).
After reviewing these considerations, we concluded that
the "key factor seems to be not whether the employee was
a supervisor or had a great deal of responsibility but
whether the employee has ``meaningful input into
decisionmaking concerning the nature and scope of a major
[government] program.' " Id. at 169-70 (quoting Nekolny v.
Painter, 653 F.2d 1164 (7th Cir. 1981)). This factor was to
be determinative in many of the cases we decided
thereafter.
In Zold v. Township of Mantua, 935 F.2d 633 (3d Cir.
1991), we were called upon to decide whether the politically
motivated discharge of a deputy municipal clerk violated
the First Amendment. Synthesizing our case law on the
subject, we stated that
the ultimate inquiry . . . is whether the hiring authority
can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the
particular office involved. . . . [S]hould 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 burden of
proof is on the defendant to demonstrate an overriding
interest in order to validate an encroachment on an
employee's First Amendment rights.
Id. at 635 (quotation marks and citations omitted). In light
of these principles we concluded that the deputy municipal
clerk--whose duties included "acting as (1) secretary to the
governing body, (2) secretary of the municipal corporation,
(3) election official and (4) administrative official on the
municipal level," id. at 637--was not a position for which
political firing was permissible. See id. at 640.
In addition to holding the politically motivated discharges
of the deputy clerk impermissible in Zold, we also found
11
impermissible the discharge of a second deputy recorder of
deeds, see Furlong v. Gudknecht, 808 F.2d 233, 238 (3d
Cir. 1986); a deputy sheriff, see Burns v. County of
Cambria, 971 F.2d 1015, 1022 (3d Cir. 1992); and a deputy
director of marketing and communications for a county
aviation department, see Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 401 (3d Cir. 1998). On the
other side of the line, we found that political affiliation was
relevant for a director of a state agency concerned with the
provision of veterans' benefits, see Waskovich v. Morgano, 2
F.3d 1292, 1303 (3d Cir. 1993), a secretary of an interstate
port authority, see Peters, 16 F.3d at 1359, as well as the
county assistant director of public information referred to
above, see Brown, 787 F.2d at 170.
The District Court's conclusion that Assaf's position was
not one for which political affiliation may be required was
fully supported by the evidence submitted in connection
with the summary judgment issue, as Assaf did not have
significant input into a major government program within
the contemplation of our case law. However, the District
Court proceeded to hold that it was not clearly established
that Assaf 's position was one for which political affiliation
could not be required and that therefore the defendant
officials were entitled to qualified immunity. It offered three
rationales for this conclusion.
The first was that "except for Waskovich, the existing
Third Circuit precedent provided no guidance." Assaf, 999
F. Supp. at 633. However, Waskovich itself emphasized the
same factors identified in our prior cases: whether the
employee had "meaningful input into decision making
concerning the nature and scope of a major [government]
program." Waskovich, 2 F.3d at 1297 (quoting Brown, 787
F.2d at 169-70). Instead, the District Court's analysis
appears to require a closer factual correspondence between
the case under examination and prior decided cases than is
consistent with qualified immunity doctrine and its
application by this court.
When deciding whether the law is clearly established, the
Supreme Court has cautioned against looking at the
constitutional issue too abstractly. Anderson v. Creighton,
483 U.S. 635, 639 (1987). Rather, the right the official is
12
alleged to have violated must have been ``clearly established'
in a more particularized, and hence more relevant, sense:
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Id. at 640. On the other hand, "This is
not to say that an official action is protected by qualified
immunity unless the very action in question has previously
been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent." Id.
(citation omitted).
Given the nature of the inquiry in the Branti-Elrod cases,
we reject appellees' argument that qualified immunity is
"well suited to cases where there is no ``bright line' rule."
Appellees' Br. At 12. Were we to adopt this position, we
would effectively eviscerate the constitutional imperative
behind Branti-Elrod jurisprudence. Under the qualified
immunity regime contemplated by appellees, liability in
such areas could never attach because the lack of"bright
line" rules inherent in the doctrine would continually
provide cover for violations of constitutional rights. In an
earlier case in which we rejected the defendants' qualified
immunity claim, we explained that if we were to require
" ``precise factual correspondence' between the case at issue
and a previous case . . . we would not be ``faithful to the
purposes of immunity by permitting . . . officials one
liability-free violation of a constitutional or statutory
requirement.' " Burns, 971 F.2d at 1024 (quoting People of
Three Mile Island v. Nuclear Regulatory Comm'rs, 747 F.2d
139, 144-45 (3d Cir. 1984)).
Contrary to the District Court's assertion, our cases have
given guidance to government officials within our circuit.
An employee may be terminated for political reasons only if
"a difference in party affiliation [is] highly likely to cause an
official to be ineffective in carrying out the duties and
responsibilities of the office," Waskovich, 2 F.3d at 1297
(internal quotation marks omited), and that only if an
employee's duties make it possible to cause "serious
political embarrassment," id. at 1302, will the position meet
the narrow Branti-Elrod exception.
We have noted that the inquiry into the employee's duties
is a "fact specific" one, id. at 1297 (quoting Zold, 935 F.2d
13
at 635), and that although we look to "the functions of the
public office in question and not the actual past duties of
the particular employee involved," id. (quoting Brown, 787
F.2d at 168) (alteration and internal quotation marks
omitted) evidence of past job duties may be, and often is,
informative, see Peters, 16 F.3d at 1353.
Officials to whom this court applied the Branti-Elrod
exception before Assaf 's termination, such as the director
of an interstate port authority charged with, inter alia, the
responsibility for developing a master economic plan for an
interstate district, in Peters, 16 F.3d at 1354-55, the
director of a state veteran's services agency responsible for
overseeing the delivery of benefits and services to veterans,
in Waskovich, 2 F.3d at 1297, and the secretary for a
county's office of public information charged with duties
such as "preparing and distributing press releases,
contacting media representatives, and promoting county
projects," and who hence represented the county
government to the public, in Brown, 787 F.2d at 168, were
those with responsibility connected to major government
programs. The common thread among them is that their
positions related to the government's activity vis-a-vis the
public. That is, these positions entail the formulation or
implementation of policies that have a direct impact on the
public or the representation of government policies to the
public.
By contrast, Assaf was charged with the responsibility of
directing--within a very narrow compass of authority--an
agency overseeing the Commonwealth's motor pool. While
this is, to be sure, an important function, it is not a "major
government program" in the sense that phrase is used in
our case law. The acquisition, maintenance, and disposition
of the Commonwealth's vehicles is a largely endogenous
function of the state government and as such serves an
internal and practical purpose--supplying vehicles to
Commonwealth agencies and executives, maintaining these
vehicles, and overseeing the purchase and sale of the
vehicles. There is nothing in these functions that would
lead a reasonable official to conclude that the Director of
the Bureau of Vehicle Management made such politically
sensitive policy judgments that the Director need have a
14
common political philosophy with the incumbent political
regime.
Moreover, Assaf's position did not involve significant
contact with the public. He did not represent the
Commonwealth or speak in its name, and was thus unlike
the plaintiff in Brown who "present[ed] the views of the
[County] Commissioners to the press and public on a daily
basis." 787 F.2d at 170. Assaf's only interaction with the
public occurred at the auction of the surplus fleet vehicles,
plainly not the type of public appearance that requires the
employee to hew to a particular party's line. As the District
Court noted, to the extent that this function involves
interaction with the public, it is "a tiny segment of the
public, who appear voluntarily for what is essentially a
commercial transaction--the purchase of a car." Assaf, 999
F. Supp. at 630.
It should not have been difficult to see that far from
representing the government, as was the plaintiff's duty in
Brown, Assaf's public contact was much more like that at
issue in Zold, where we found that political allegiance was
not an appropriate criterion for the decision to terminate
the plaintiff. In Zold, the public contact of the plaintiff, the
deputy township clerk, was more extensive than Assaf's,
involving as it did "informing reporters about the agenda of
upcoming meetings and . . . receiving inquiries and
complaints from the electorate . . . and responding in kind."
935 F.2d at 638 (citation and internal quotation marks
omitted).
We reject appellees' argument that our decision in
Waskovich could have been understood by reasonable
officials to render the political firing of Assaf lawful. The
plaintiff in Waskovich was the former Director of the New
Jersey Division of Veterans' Administrative Services, and as
such was responsible for the administration of services and
benefits to an estimated 900,000 veterans throughout the
state. See Waskovich, 2 F.3d at 1302. Although Waskovich
oversaw the day-to-day operations of veterans' facilities, he
also advocated for the veterans that were in the state's care.
See id. at 1300. We described his role as that of a
government official who "orchestrate[s] the provision of
veteran services." Id. at 1302. In holding Waskovich's
15
position exempt, we emphasized that Waskovich had
significant policymaking authority with respect to this
position, and that "he was involved in policy matters on a
day-to-day basis, that he made recommendations on policy
matters on several occasions, that his superiors asked for
his views of major policy proposals such as capital
improvement programs, and that he often opposed policies
they espoused." Id. at 1300.
Assaf's position, on the other hand, concerns the
administration of the state's fleet of vehicles. Without
denigrating the importance of such a position, there is no
reason to conclude that high state officials would have
analogized Assaf's position to Waskovich's. In light of
Assaf's lack of any significant contact with the public and
the undisputed fact that Assaf's level of responsibility did
not touch on politically sensitive issues, which would raise
the likelihood of serious political embarrassment, no official
cognizant of the existing precedents of this court could have
concluded that the modest managerial responsibilities over
the Commonwealth agencies' fleet of cars would constitute
meaningful input into a major government program.
The second reason given by the District Court for its
qualified immunity decision was that Assaf's status as
"middle management" made it objectively reasonable for
appellees to believe that his position was subject to
patronage dismissal. Nothing in this circuit's precedents
suggests that middle managers qua middle managers are
more likely to fall within the exception than other types of
employees. In fact, not one of our Branti-Elrod decisions
even mentions the term "middle management" or"middle
manager." To the contrary, as we observed in Brown,
managerial or supervisory authority, by itself, does not
suffice to bring a position within the Branti-Elrod exception.
See Brown, 787 F.2d at 169-70. In short, to label someone
a middle manager says nothing about whether or not that
person has significant policy-making responsibilities that
make adherence to the incumbent party's political
philosophy a necessary job requirement.
In a similar vein, the District Court suggested that the
division of authority between the Seventh Circuit in Selch v.
Letts, 5 F.3d 1040 (7th Cir. 1993), and the Fourth Circuit
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in Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993),
supports the determination that it was unclear whether
Assaf's duties were such that he was subject to patronage
dismissal. These cases have little to say about the kind of
position involved here, nor do they stand for the
proposition, implicit in the District Court's analysis, that
middle managers may be subject to political firing. Selch
concerned the position of "subdistrict superintendent," a
job that involved "plan[ning the] annual workload and
determin[ing] resource requirements based upon that plan;
--investigat[ing] and tak[ing] corrective action on
complaints and information requests from the general
public; [and] --provid[ing] personal supervision, personnel,
and equipment during emergencies, such as snow and ice
removal, detours, accidents, and road repairs, etc." Id. at
1044-45. Akers involved the holder of a similar job--that of
"county maintenance superintendent." The Seventh Circuit
in Selch held that the position was one for which patronage
dismissal was constitutionally permissible; the Fourth in
Akers had held the opposite.
The Selch and Akers plaintiffs had a great deal of
responsibility to decide how the physical maintenance of
streets gets done, and, as is well known, local political
regimes can stand or fall on the incumbents' ability to fix
potholes and remove snow. In any event, those decisions
from other circuits cannot reasonably have been relied on
by officials in a state within this court's jurisdiction when
this court has numerous opinions to serve as guidance on
the subject.
The final reason offered by the District Court in support
of qualified immunity was the observation that"Assaf's
duties were not merely technical, he participated in
meetings, and he could control others." Assaf, 999 F. Supp.
at 633. This description, however, could just as well apply
to any public employee with a measure of supervisory
responsibility. Although Assaf met with the Deputy
Secretary every two weeks along with the other Bureau
Directors, occasionally met with Fields alone, and on three
occasions attended out-of-state programs held by the
National Association of Fleet Administrators that
highlighted products and involved discussions of fleet
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management techniques, these functions say nothing
significant about the extent to which his duties required
that he have the same political affiliation as the incumbent
regime.
In his position as Director of the Bureau of Vehicle
Management for the Commonwealth, Assaf had
management responsibilities in three principal areas: (1)
obtaining and maintaining the Commonwealth's fleet of
vehicles; (2) directing the operation of the Commonwealth
Garage (i.e., supervising the maintenance of the fleet); and
(3) overseeing the disposition of Commonwealth-owned
vehicles at auction. These duties do not involve matters
that have an impact on the public nor does the Bureau
Director represent the government in its interactions with
the public. It would be manifestly unreasonable for officials
to believe that such an intragovernmental operation as the
management of the state's fleet of vehicles involves
politically sensitive matters.
Although Assaf's lack of input into a program that can
be considered major is sufficient to establish that it should
have been apparent to reasonable officials that his job was
protected under the First Amendment, it should also have
been known to his superiors that Assaf's level of
responsibility within the Bureau was not very significant. In
particular, the record suggests that Assaf did not enjoy the
power to hire or fire employees, but only to reprimand
them. He directly supervised only three employees. He
oversaw the purchase of vehicles, but did not have
authority to make purchasing decisions for the
Commonwealth. He had no input into his budget. As
Bureau Director, he managed the Commonwealth Garage,
but had no authority to negotiate maintenance contracts
with outside vendors. Assaf oversaw the administration of
the auctions, but the selection of cars and the target prices
to be achieved at auction were set by formula, not
according to the Director's initiative. Although Assaf
instituted a set of procedures for the conduct of the auction
when he learned of dissatisfaction with the auction process,
the minor nature of the changes, i.e. changing the process
for counting money, installing a locking door on the auction
stage, and attempting to ensure that the target prices were
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obtained, see Assaf at 93-95, show the technical nature of
his input.
Appellees make much of the fact that Assaf forwarded to
Fields a suggestion for altering the formula for calculating
the labor rates for maintenance contracts (a suggestion
ultimately adopted by Fields), but we do not find in this
event an indicium of "significant input into broad goals"
sufficient to support qualified immunity. Leaving aside the
fact that the suggestion was not, in the first instance, the
product of any initiative on Assaf's part, the narrow ambit
of the suggestion and the fact that it was up to Fields to
make the ultimate decision as to whether it would be
implemented further suggest that such "broad goals" as the
Bureau may have had were firmly in the control of Fields,
not Assaf. As the District Court aptly summed up, "the
plaintiff ran the day-to-day operation of the Bureau, but
Fields kept a ``tight rein.' " Assaf, 999 F. Supp. at 626.
In an earlier Branti-Elrod case, we rejected the
defendants' contention that the right at issue was not
clearly established, stating that "we are satisfied that the
decisions of this court have been sufficiently consistent to
have clearly established to all state and municipal
employers that firing or other adverse employment action
for political reasons contravenes the Constitution unless
defendants could show that the particular position came
within the narrow exception." Burns, 971 F.2d at 1024.
That conclusion is just as applicable here. Here, as in
Burns, the defendants "should have related this established
law to the instant situation." Id. at 1025, (quoting Hicks v.
Feeney, 770 F.2d 375, 380 (3d Cir. 1985) (internal
quotation marks omitted)).
The nature and limits of Assaf's responsibilities and
authority were not unknown to defendants Fields and
Crowell. After all, it was Fields to whom Assaf directly
reported, and Fields in turn reported to Crowell. In fact,
Crowell who, as the Secretary of General Services, was
responsible for Assaf's termination, testified at his
deposition that party affiliation was not an appropriate
requirement for the job. See Crowell at 61. In Burns, we
saw no reason why any "reasonable employer" would have
thought that the employee "could be fired for political
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reasons." Burns, 971 F.2d at 1024. Any hypothetical
reasonable official should have known that the limited
nature of Assaf's authority would place his position in line
with those that we held were protected by the First
Amendment in Zold (deputy municipal clerk who ran day-
to-day functions of the clerk's office), Furlong (second
deputy recorder of deeds, who satisfied mortgages, recorded
documents and forwarded taxes to the relevant authorities),
and Burns (deputy sheriff who was responsible for serving
process, transporting prisoners, and guarding courtrooms).
Consequently, we hold that a reasonable official would
not have concluded under clearly established law that
political loyalty could be required for Assaf's position.
IV.
For the reasons set forth, we will reverse the decision of
the District Court granting summary judgment to
defendants on the ground that they have qualified
immunity. As the defendants have argued that they did not
dismiss Assaf for political reasons, we will remand for
further proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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