Fuerst, James R. v. Clarke, David A.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4162
JAMES R. FUERST,
Plaintiff-Appellant,
v.
DAVID A. CLARKE,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-0295—William E. Callahan, Jr., Magistrate Judge.
____________
ARGUED APRIL 12, 2006—DECIDED JULY 27, 2006
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Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. This appeal from the grant of
summary judgment for the defendant requires us to con-
sider the limitations that the First Amendment has been
interpreted to place on decisions regarding personnel
actions by a public agency, specifically a sheriff’s depart-
ment. The defendant, David Clarke, is the sheriff of Milwau-
kee County. The plaintiff, James Fuerst, is a deputy sheriff
and also the president of the union of Milwaukee County
deputy sheriffs. Clarke is a Republican-leaning Democrat
(see Bill Christofferson, “David Clarke Is No Zell Miller, But
It’s Not Because He’s Black,” http://www.wisopinion.com/
2 No. 05-4162
blogs/2005/06/david-clarke-is-no-zell-miller-but-its.html)
in a predominantly Democratic county and was believed to
be nursing mayoral ambitions. When he proposed to replace
a civil-service position on his staff traditionally filled by a
deputy sheriff with a “civilian” answerable only to him,
who Clarke’s opponents believed would be a public rela-
tions “mouthpiece” for promoting Clarke’s political career,
at an annual salary of $71,500, Fuerst publicly criticized the
proposal as a waste of taxpayers’ money. Earlier he had
campaigned against Clarke’s election as sheriff.
Shortly after Milwaukee’s leading newspaper reported
Fuerst’s criticisms, Sheriff Clarke passed him over for
promotion to the rank of sergeant, even though Fuerst had
scored second out of the 105 deputy sheriffs who had taken
the most recent sergeants’ examination. When he com-
plained, Clarke told him he’d been passed over because
he wasn’t “loyal” to Clarke’s “vision.” The sheriff is not
required to promote strictly on the basis of examination
scores, but he concedes for purposes of this appeal that
it was Fuerst’s public denunciation of the “mouthpiece”
proposal that doomed his promotion.
Public officials do not violate the First Amendment
when they deny for political reasons appointments or
promotions to jobs that involve the making of policy or the
giving of confidential policy-related advice to a policy-
maker. For in a democratic society the formulation of policy
by government agencies is an inescapably political activity.
Thus, as we explained in Riley v. Blagojevich, 425 F.3d 357,
359 (7th Cir. 2005), “a public official cannot be fired on the
basis of his political affiliation unless the nature of his job
makes political loyalty a valid qualification; this could be
either because the job involves the making of policy and
thus the exercise of political judgment or the provision of
No. 05-4162 3
political advice to the elected superior, or because it is a job
(such as speechwriting) that gives the holder access to his
political superiors’ confidential, politically sensitive
thoughts. Elrod v. Burns, 427 U.S. 347, 367-68 (1976); Branti
v. Finkel, 445 U.S. 507, 518 (1980).”
So the first question is whether the job of sergeant in the
Milwaukee County Sheriff’s Department is such a job. In
answering it we must not confuse the making or advis-
ing on matters of policy with either discretion or super-
vision. Discretion often is exercised not only by
policymaking officials but also by workers all the way down
the chain of command to the bottom-most layer, which in
this case would be the policeman on the beat (the equivalent
to what in the Milwaukee County Sheriff’s Department is
called a “deputy sheriff”). That does not make a policeman
a policymaker. Nor are first-line supervisors, such as police
sergeants (the next rank above deputy sheriff in the Milwau-
kee County department and the rank to which Fuerst
aspired), policymakers, even though they have more
discretion than nonsupervisory employees. Senior civil
servants exercise significant discretion, but it is discretion
regarding how best to implement the policies formulated by
their political superiors, and so it does not make them
policymakers.
The standard management hierarchy, whether in a
government agency or in a private firm, operates on the
basis of “management by exception.” Luis Garicano,
“Hierarchies and the Organization of Knowledge in
Production,” 108 J. Pol. Econ. 874, 875-77 (2000); A. W.
Beggs, “Queues and Hierarchies,” 68 Rev. Econ. Stud. 297,
298 (2001); Stephen Page, Best Practices in Policies and
Procedures 1 (2d ed. 2002). The workers on the bottom rung
use their discretion to decide matters that deviate only
4 No. 05-4162
slightly from the completely routine matters that they
are trained and experienced in handling. If they encounter
a significant deviation from the norm, they bounce the issue
up to their supervisor, who has broader authority, and so on
up. The issue can rise through many levels before its
resolution requires the formulation of policy rather than
merely a technical judgment.
The Milwaukee County Sheriff’s Department has some
600 deputy sheriffs, 43 sergeants, 22 lieutenants and cap-
tains, and an inspector, who is the number 2 official in the
department. It is uncertain whether any of these are
policymaking officials, even the inspector, who is a
police officer rather than a “civilian.” “Employee super-
visors,” the Supreme Court explained in Elrod v. Burns,
supra, 427 U.S. at 367-68, “may have many responsibilities,
but those responsibilities may have only limited and well-
defined objectives”—and in that event the supervisors are
not policymaking officials. For it is only when objectives are
broad or poorly specified that political rather than technical
or professional judgments properly shape the choice of
means for achieving them. See also Selch v. Letts, 5 F.3d
1040, 1043 (7th Cir. 1993).
The sergeants in the Milwaukee County Sheriff’s De-
partment are not policymaking officials so understood.
DiRuzza v. County of Tehama, 206 F.3d 1304, 1311 (9th Cir.
2000); Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997);
see Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir. 2000);
Flenner v. Sheahan, 107 F.3d 459, 465 (7th Cir. 1997); Dickeson
v. Quarberg, 844 F.2d 1435, 1444 (10th Cir. 1988). They have
modest supervisory authority and exercise a broader
discretion than the deputy sheriffs (the cops on the beat),
but they do not formulate departmental policy. At least
No. 05-4162 5
their status as policymakers is not so clear that the issue can
be resolved on summary judgment.
It is worth noting that Wis. Stat. § 164.015 provides that
“no law enforcement officer may be prohibited from
engaging in political activity when not on duty or not
otherwise acting in an official capacity, or be denied the
right to refrain from engaging in political activity.” The
last clause, read in light of section 164.03, which forbids any
“discriminat[ion] . . . by reason of the exercise of the rights
under this chapter,” including the right of political inactiv-
ity conferred by section 164.015, makes clear that sergeants
are not expected to be political loyalists of the sheriff. This
is relevant to Fuerst’s appeal not because the statutory
provisions may confer legally enforceable rights on him, an
issue of state law that is not before us, but because they cast
additional light on the nature of the sergeant’s job. The
provisions in effect amend the job description (which is
vague), Thompson v. Illinois Dept. of Professional Regulation,
300 F.3d 750, 756-57 (7th Cir. 2002); Hager v. Pike County
Board of Education, 286 F.3d 366, 372 (6th Cir. 2002); Hall v.
Ford, 856 F.2d 255, 264 (D.C. Cir. 1988); Savage v. Gorski, 850
F.2d 64, 69 (2d Cir. 1988), confirming that political loyalty is
not a valid qualification. To repeat what we said in Riley v.
Blagojevich, supra, 425 F.3d at 359, “a public official cannot
be fired on the basis of his political affiliation unless the
nature of his job makes political loyalty a valid qualifica-
tion.”
The defendant points to cases in which this court has held
that a “deputy sheriff” is a policymaking official. Mitchell v.
Thompson, 18 F.3d 425, 427 (7th Cir. 1994), however, in-
volved a chief deputy. In Terry v. Cook, 866 F.2d 373, 377
(11th Cir. 1989), the deputy sheriff was the sheriff’s “alter
ego.” Upton v. Thompson, 930 F.2d 1209, 1218 (7th Cir. 1991),
6 No. 05-4162
and Dimmig v. Wahl, 983 F.2d 86, 87 (7th Cir. 1993), do treat
deputy sheriffs as policymaking officials, but Upton notes
that “particularly in a small department, a Sheriff’s core
group of advisers will likely include his deputies,” 930 F.2d
at 1218, while here we have a large department. Upton notes
further that “state legislatures may choose to adjust state
laws to protect some level of party affiliation or participa-
tion,” id., which Wisconsin has done. Upton distinguished
an earlier case on the ground that there an ordinance
protected the deputy sheriff against political firing, thus
indicating, like the Wisconsin statutes in the present case,
that political loyalty to the sheriff was not a requirement for
effective performance of the deputy’s job. Dimmig does not
indicate the nature of the deputy sheriffs’ duties, but, like
Upton, was a case in which the sheriff’s department had
much less hierarchy than the Milwaukee County Sheriff’s
Department. Deputy sheriffs in both cases may have been
delegated broader powers than deputy sheriffs and ser-
geants in the Milwaukee department.
The district court thus erred in ruling on summary
judgment that the sergeant’s position is a policymaking one,
and the next question is whether Fuerst’s public criticism of
the sheriff’s proposal to hire a public-relations officer was
nevertheless a permissible consideration for the sheriff to
use in deciding not to promote Fuerst. Fuerst describes the
sheriff’s use of words like “loyalty” and “mission” as code
words for disapproval of Fuerst’s exercising free speech.
That is too simple a view. Although Fuerst’s public criticism
was prima facie protected by the First Amendment as a
contribution to political debate, the sheriff is entitled to
rebut by showing that Fuerst’s exercise of his right of free
speech interfered with the efficient operation of the sheriff’s
department. E.g., Connick v. Myers, 461 U.S. 138, 150-51
(1983); McGreal v. Ostrov, 368 F.3d 657, 672 (7th Cir. 2004).
No. 05-4162 7
(Because Fuerst’s comments that precipitated the adverse
action taken against him were made in his capacity as a
union representative, rather than in the course of his
employment as a deputy sheriff—his duties as deputy
sheriff did not include commenting on the sheriff’s decision
to hire a public-relations officer—the Supreme Court’s
recent decision in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006),
is inapposite.)
The right of free speech is not absolute; it is the point of
balance between competing values, in this case that of
public criticism of public officials and that of sound man-
agement of a public agency. United States v. National Trea-
sury Employees Union, 513 U.S. 454, 465-66 (1995); Caruso v.
De Luca, 81 F.3d 666, 670 (7th Cir. 1996); Melzer v. Board of
Education, 336 F.3d 185, 193 (2d Cir. 2003). Officials have a
right to demand from their subordinates a wholehearted
commitment to the agency’s mission as defined by the
officials. A public criticism of top management may,
depending on the occasion, content, and tone of the criti-
cism, violate that commitment and, what is particularly
harmful in a paramilitary organization such as a police
agency, may undermine command authority. Williams v.
Seniff, 342 F.3d 774, 784 (7th Cir. 2003); McGreal v. Ostrov,
368 F.3d 657, 678-79 (7th Cir. 2004); Cochran v. City of Los
Angeles, 222 F.3d 1195, 1201 (9th Cir. 2000); Stanley v. City of
Dalton, 219 F.3d 1280, 1289 (11th Cir. 2000); Jurgensen v.
Fairfax County, 745 F.2d 868, 880 (4th Cir. 1984).
Despite the wording of the Wisconsin statutes that we
quoted earlier, Wisconsin law does not, as far as we are able
to determine, consider all political activity by law enforce-
ment officers privileged—for what if Fuerst had made false
charges of corruption against Clarke? But at the other
extreme, suppose that Clarke were an avid hunter and
8 No. 05-4162
Fuerst the president of the local animal-rights society and
without mentioning Clarke urged the abolition of hunting,
infuriating Clarke and inciting Clarke to deny him promo-
tion. Cf. Grossart v. Dinaso, 758 F.2d 1221, 1230-33 (7th Cir.
1985). Fuerst’s implicit criticism of Clarke would not have
demonstrated a lack of commitment to the mission of the
sheriff’s department.
This case is in between, again precluding the grant of
summary judgment to the defendant. On the one hand,
Fuerst’s criticism of the proposal to hire outside police ranks
could be thought a challenge to the sheriff’s authority. On
the other hand, we are told without contradiction that the
president of the deputy sheriffs’ union has always been a
deputy sheriff, which suggests that when Fuerst is wearing
his union president’s hat he is not challenging the sheriff’s
authority but carrying out duties consistent with that
authority, since Wisconsin permits public-employee unions.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-27-06