Seventh Circuit Affirms Politically Motivated Demotion

After any election season, there will be a crop of newly-elected officials eager to start changing the world. There will also be a crop of newly-unemployed bureaucrats, who lose their gigs because they backed the wrong candidates.

While many employees can't be fired for their political leanings, those who hold "policymaking positions" can be unceremoniously booted when there's a changing of the guard.

And it's completely legal under the Elrod-Branti analysis.

Political patronage dismissals generally violate the First Amendment, but certain governmental positions require a "heightened need for trust and confidence that ... subordinates are guided by the same political compass and will exercise their discretion in a manner consistent with their shared political agenda." In such "policymaking jobs," the "government employer's need for political allegiance ... outweighs the employee's freedom of expression."

In other words, government employers may fire individuals in policymaking jobs solely because of their political affiliation.

Jay Embry, unfortunately, had one of those policymaking positions.

Embry started working for the Department of Streets and Alleys in Calumet City more than a decade ago. In 2007, Mayor Michelle Qualkinbush appointed him as Commissioner of Streets and Alleys. The commissioner oversees the construction and repair of all streets, paving, sidewalks, and other public improvements, and also reports ordinance violations to the city council.

During the April 2009 municipal election, Embry campaigned for the "United to Serve You" team of candidates, which included Mayor Qualkinbush and several aldermen. Ironically, there was division within the United team, and three of the aldermen broke party ranks to support defendant Roger Munda over Munda's opponent, (whom the mayor had endorsed). Munda won, creating a rift between the aldermen and the mayor. Embry was drawn into the controversy when he continued to support the mayor.

A few months after the election, the city council merged Embry's department with the Sewer and Water Department, creating a single Department of Streets, Alleys, Water, and Sewer. Subsequently, Mayor Qualkinbush drafted an appointment letter nominating Embry to head the new department. However, after the "United" aldermen vowed not to ratify Embry's appointment, the mayor nominated someone else. The city council unanimously approved the new appointment.

Embry sued Calumet City, four city aldermen, and the city Director of Personnel under 42 U.S.C. § 1983, alleging that the defendants demoted him from his position as retaliation for his support of the mayor. Applying the Elrod-Branti line of political-patronage cases, the district court granted defendants' motion for summary judgment, concluding that the commissioner is a policymaking position and that Embry could therefore be removed because of his political affiliation.

The Seventh Circuit Court of Appeals affirmed that decision.

Politicians giveth appointments, and politicians can taketh away. If a hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of a public office, then politically-motivated dismissal does not violate the First Amendment.

Related Resources:

• Jay Embry v. City of Calumet (Seventh Circuit Court of Appeals)
• Animal Officer Can be Fired for Political Reasons (FindLaw's Seventh Circuit Blog)
• Seventh Circuit: Friendship is Not Constitutionally Protected (FindLaw's Seventh Circuit Blog)