Luis J. Gonzalez-Gonzalez v. Carmen Sonia Zayas, Etc. ( 1988 )

CAFFREY, Senior District Judge.

Before the Court is yet another controversy arising from the aftermath of the gubernatorial election of 1984 in the Commonwealth of Puerto Rico. In that election, the Partido Popular Democrático (PPD) ousted the incumbent Partido Nuevo Progresista (PNP). In the wake of that ouster, scores of government employees, including appellee Gonzalez, were demoted or dismissed from their positions. Not surprisingly, many of those employees were members of the defeated PNP.

The appellee in this case, Luis J. Gonzalez-Gonzalez, is the former Director of the Board of Appeals for the Department of Social Services for the Commonwealth. In his complaint, he alleges that the appellant, the Secretary of Social Services, demoted him to a subordinate position solely because of his party affiliation, in violation of his rights under the First and Fourteenth Amendments. His prayer for relief requests reinstatement to his former position, damages and back pay.

The Secretary moved for summary judgment, asserting that her action in demoting Gonzalez was protected under the doctrine of qualified immunity. The District Court denied the motion, ruling that the Secretary was not entitled to qualified immunity from damages, 671 F.Supp. 106. The District Court analogized the functions inherent to the office of the Director of the Board of Appeals to the functions performed by the chief judge of an appellate court. Because of the quasi-judicial nature of the Director’s functions, the court ruled that it was clearly established at the time of the Secretary’s action that a patronage demotion would violate the constitutional rights of the appellee. The Secretary appealed. We affirm.

It is black letter law that a public official is entitled to immunity from personal liability for damages caused by her official actions. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The shield provided by the immunity doctrine promotes the freedom of action that is essential to the effective execution of an official’s public trust. A public official would naturally hesitate to act if exposed to liability for all damages inadvertently caused by her actions, even if substantial public benefit would also result. The immunity doctrine thus developed in recognition of the reality that sometimes an individual’s interest in compensation must give way to the greater interest of the public. See generally Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

The immunity afforded public officials does not protect them from liability for damages in every instance. A public official is not shielded when she knows or should reasonably know her conduct violates the legal rights of third persons. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738. No bright line test exists for determining when an official is or is not entitled to immunity. The question to be addressed in every case is whether the plaintiff’s legal right was clearly established at the time of the challenged official action.

In political discharge cases, some difficulty is presented in determining whether a public official has violated a clearly established right of the plaintiff. While generally the Constitution forbids the dismissal of a government employee for reasons based solely on the employee’s party affiliation, Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 2683, 49 L.Ed.2d 547 (1976), in an exception carved out in Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980), the Supreme Court recognized that party affiliation is an appropriate requirement for certain categories of government employment. Therefore, persons holding these positions are not constitutionally protected from patronage dismissal or demotion. The contours of the Branti exception are ill-defined, making it difficult to determine whether an employee in a particular government position is or is not protected from political discharge. For this reason, this Court has been somewhat lenient in allowing public officials to claim qualified immunity in the patronage dismissal cases. See, e.g., Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987); DeAbadia v. Izquierdo Mora, 792 F.2d 1187 (1st Cir.1986).

Despite the relative confusion in the area, however, public officials do not have free rein to discharge employees for political reasons under the guise that the law was not clearly established as to particular positions. Thus, where a particular position involves purely technical or non-discretionary skills or for other reasons it is obvious that party affiliation is not an appropriate requirement for a particular government job, a public official is not protected by qualified immunity.

This Court believes that the Directorship of the Board of Appeals is such a position. As described in the OP-16 Job Classification Form, the Board of Appeals is entrusted with the function of guaranteeing the rights of the appellants to air their grievances with lower level administrative decisions before an impartial body. The Board is therefore required to be neutral by the very nature of its function. This requirement of impartiality extends to the Director of the Board who analyzes all appeals and makes or participates in all final decisions regarding appeals before the Board. Needless to say, conditioning the Director’s continued employment on his party affiliation would be antithetical to the requirement that he perform his decision-making in an impartial manner.

The Secretary places great emphasis on other functions performed by the Director which she characterizes as policy-making. In essence, the Secretary asserts that the Director’s other activities “potentially concerned matters of partisan political interest and involved at least a modicum of policy-making responsibility, access to confidential information or official communication ...” sufficient to entitle the Secretary to the protection of qualified immunity. Mendez-Palou v. Rohena-Betancourt, 813 F.2d at 1259.

Even assuming the Director’s position does entail some policy-making, we believe that the Secretary’s position misconstrues the holding in Mendez-Palou. Although that case held that it was not clearly established law in 1985 that positions involving a “modicum of policy-making” were protected from political dismissal, the Court did not go so far as to hold that the presence of some policy-making in a particular job would automatically determine that an official is entitled to qualified immunity. Prior to Mendez-Palou, the Supreme Court had noted in Branti that not every position involving policy-making is fair game for a political discharge. 445 U.S. at 518, 100 S.Ct. at 1294-95. More importantly, in the determination of whether qualified immunity applies, the proper focus is on whether the plaintiff’s right to continued employment was clearly established, not on whether the job involves policy-making. Under Mendez-Palou, a policy-making function is merely one indication that the plaintiff’s right was probably not clearly established, given the confusion that existed in the area of political discharges of middle-level government employees.

In the present case, we believe it was clearly established that political affiliation is not an appropriate requirement when the position at issue requires impartiality and independence, despite the presence of some policy-making function. First, in Branti, the Supreme Court had decided that political affiliation was not an appropriate condition for the continued employment of an assistant public defender. 445 U.S. at 519. That position required that the employee have the ability to act independently of the government in representing his client’s interests. The court reasoned that “it would undermine, rather than promote, the effective performance of an assistant public defender’s office to make his tenure dependent on his allegiance to the dominant political party.” Id. at 519-20, 100 S.Ct. at 1295-96. We find this reasoning to be applicable here where effective performance of the Director’s duties requires impartiality. We also note that Branti was existing precedent at the time the Secretary demoted appellee. However, even without Branti, we believe that the Secretary is obligated to respect common sense in determining the extent of her authority to make patronage dismissals. Common sense dictates that impartiality is destroyed when an employee is threatened with discharge because his political beliefs differ from those holding the power to terminate his employment. Under the circumstances, the Secretary cannot claim unfair surprise in discovering she is not protected by the qualified immunity doctrine.

The Secretary has also attacked the District Court’s decision on the grounds that, in her view, the District Court erroneously confused the immunity issue with the merits of the plaintiff’s claim that the Director of the Board of Appeals could not be demoted legally on the basis of his political persuasion. Although our disposition of this matter implicitly rejects this contention, we note that it is not surprising that the District Court’s analysis, as well as our own, may be perceived as a decision on the merits of the claim rather than the threshold issue of immunity. The issue of immunity is often inextricably entwined with the merits of the plaintiff’s case, making a decision on one issue impossible without at least cursory examination of the other. A decision which denies qualified immunity necessarily establishes the merits of plaintiff’s claim. For this reason, the Secretary’s assertion is without merit.

AFFIRMED.