HUGE Victory for California Law Enforcement Officers
and the PORAC Legal Defense Fund - Ninth Circuit Holds That:
Deputy Sheriffs Are Not Policy Makers Who Can Be Fired For Political
Reasons
By Mike Rains
It was an honor and a challenge to be requested by
the trustees of the PORAC Legal Defense Fund to appear as Amicus
Curiae for PORAC and the Legal Defense Fund in the Ninth Circuit
Court of Appeals in a case entitled Sherol DiRuzza v. County
of Tehama, et al. PORAC and the Legal Defense Fund viewed the
decision of the Federal District Court in Sacramento as destructive of
the right of rank-and-file peace officers (in this case, deputy
sheriffs) to engage in political activities and free speech without
facing disciplinary consequences from their employer.
The plaintiff in this case, Sherol DiRuzza, was
employed by Tehama County as a deputy sheriff from 1992 to 1995. In
1994, DiRuzza supported the incumbent sheriff in his bid for
re-election. Unfortunately for DiRuzza, the incumbent sheriff lost his
re-election bid to Robert Heard. DiRuzza, in her underlying lawsuit,
claimed that Heard, after taking office, terminated her as the result of
her political activity in support of his opponent.
Although Heard and his appointed undersheriff claimed
that DiRuzza had engaged in actionable misconduct which supported her
termination, they also alleged that they had a right to terminate her
irrespective of her asserted misconduct, because a deputy sheriff in
Tehama County was a "policy maker," and political loyalty of a
"policy maker" is a necessary requirement for the job.
The District Court, by granting Summary Judgment for
the sheriff and undersheriff, held, in essence, that deputy sheriffs in
California are "policy makers" and may be fired for
engaging in political activity and/or speech which incurs the
disapproval of the sheriff.
Needless to say, when PORAC and the Legal Defense
Fund became aware of the lower court’s ruling on this case and the
important issue at stake, it enthusiastically endorsed joining an appeal
to the Ninth Circuit Court of Appeals. They recognized the decision’s
grave potential for chilling the right of political speech and
expression of rank-and-file police officers throughout the state.
A great deal of the written work and briefing in this
case was done by my friend and former colleague at Carroll, Burdick
& McDonough, Phil Ginsberg. He carefully analyzed the reasoning of
the District Court and found a distinguishing point: the District Court,
in holding that deputy sheriffs are "policy makers", relied on
cases from the Fourth, Seventh, and 11th Circuits, but
ignored a very significant case from our own Ninth Circuit entitled Thomas
v. Carpenter, 881 F.2d 828 (9th Cir., 1989). The was, incidentally,
a Legal Defense Fund case. In Thomas, a lieutenant in the Santa
Barbara Sheriff’s Department filed a civil rights action against the
sheriff, alleging that the sheriff had retaliated against the lieutenant
(Thomas) for running against him in the sheriff’s election.
The sheriff had defended his decision to ban the
lieutenant from attending departmental staff meetings, policy manual
revision meetings, and other important duties, on the ground that the
lieutenant had demonstrated his disloyalty and untrustworthiness by
running against the sheriff in the election. The Ninth Circuit rejected
the sheriff’s contention that the loyalty of his lieutenant was
essential to the operation of his administration, stating that the
effectiveness and efficiency of the Sheriff’s Administration
"...is not furthered, however, by the discharge of non-policy
making individuals who have only limited responsibility and are
therefore not in a position to thwart the goals of the in-party." (Thomas,
881 F.2d at 830-831).
In preparing this case for oral argument, it became
very clear that the Federal Circuit Courts which have held that those
occupying the rank-and-file position of a "deputy sheriff" are
circuits in which deputy sheriffs are essentially "at will"
employees, and have no civil service protections whatsoever. The
research concerning the status of deputy sheriffs in other states was
particularly interesting and enlightening. California law enforcement
officers, and particularly members of sheriffs’ departments, should be
grateful that civil service rules create property rights in continued
employment, and the Peace Officers Bill of Rights Act helps to protect
against shoddy investigations and arbitrary terminations.
As I prepared for oral argument, it became reasonably
clear that the decision would be influenced, if not determined, by
considering the specific duties performed by DiRuzza in the Tehama
County Sheriff’s Department.
Lawyers for the sheriff and undersheriff argued that,
while a deputy sheriff in a large metropolitan sheriff’s department
may arguably not be a "policy maker", that was not the case in
rural Tehama County - where DiRuzza was one of only 78 sworn deputy
sheriffs.
In oral argument, to counter this argument, I
reminded the judges that DiRuzza’s duties for most of her career
consisted primarily of working in the jail and operating a panel which
opened doors and activated phones - hardly duties performed by a
"policy maker" in a sheriff’s department of any size.
Additionally, both the District Court and the sheriff
had relied upon a Ninth Circuit case entitled Fazio v. City and
County of San Francisco, 125 F.3d 1328 (9th Cir. 1997) in holding
that a deputy sheriff was a "policy maker". I emphasized that Fazio
established just the opposite - that the factors to be applied in
determining who is a "policy maker" mandated that the lower
court’s decision be reversed.
In Fazio, the court had determined that the
plaintiff, Fazio, was a "policy maker" for the following
reasons:
-
Fazio was employed in the capacity as a
"head attorney."
-
He had served in the District Attorney’s Office
for 20 years.
-
His salary was comparatively high in the office -
over $100,000.
-
His duties were nearly identical to those of the
district attorney himself.
-
He represented the District Attorney’s Office
in discussing cases to the media.
-
He personally handled high profile cases with
great autonomy and no supervision.
I advised the judges during oral argument that these
precise factors which the court relied upon to determine Fazio
was a "policy maker" required the court to come to a contrary
decision concerning DiRuzza.
Finally, and for reasons I never quite understood,
the attorneys representing the sheriff and undersheriff requested the
court to take judicial notice of the collective bargaining agreement
between the Deputy Sheriffs Association and Tehama County. The court
granted the request, and I seized the opportunity to point out that the
very strong "management rights" clause in the contract
precluded "rank-and-file" deputies, such as DiRuzza, from
participating in important policy-making functions.
Although the judges were not very kind or
understanding to any of the lawyers who argued this case, it is clear
that the arguments we made strongly influenced the final decision, which
included some very strong language:
-
"Given the range of duties performed by
deputy sheriffs in California, a conclusion that deputy sheriffs are
per se policy makers is inconsistent with important First
Amendment rights..."
-
"Political and free speech activities alone
cannot make an employee a policy maker. If this were so, any
employee entering the political arena to oppose re-election of the
head of her office would become a policy maker and would thus be
subject to retaliation."
-
"The actual, not the possible, duties of an
individual employee determine whether political loyalty is
appropriate for the effective performance of her job."
-
"The critical inquiry is the job actually
performed."
-
"The District Court thus erred in granting
Summary Judgment based on a holding that deputy sheriffs in
California are policy makers and may be fired for the exercise of
their First Amendment Rights."
The Ninth Circuit did not go so far as to hold that
there are no circumstances under which a deputy sheriff could be
considered a "policy maker." It insisted, however, that a
deputy sheriff would not be considered a "policy maker" unless
an analysis of the deputy’s duties were undertaken, and the duties
were significantly more managerial, supervisory, and/or administrative
than those performed by DiRuzza.
I am pleased to have participated in this significant
case, and to send the message to law enforcement executives, and
particularly our county sheriffs, that you cannot expect to deny your
deputies significant duties and influence in your administration, and
then fire them for their refusal to support your incumbency in office.
It is bad enough that law enforcement officers have
been burdened with the legacy of a "code of silence", it would
be fatal to effective and impartial law enforcement if our peace
officers were forced to subscribe to a "code of patronage" to
an inept or unqualified superior. I am happy to say that this heavy
cloud over our heads dissipated and disappeared with this decision.
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