Employee Free Speech – Backing the Wrong Candidate Can Get You Fired If You Are A Policy Maker

The factual scenario in Bardzik v. County of Orange is a familiar one.  Jeffrey Bardzik was a lieutenant in the Orange Count Sheriff’s Department under the command of Sheriff Michael Carona.  Lieutenant Bardzik contended that Sheriff Carona retaliated against him after he (Bardzik) backed Carona’s opponent in an election campaign. Bardzik alleged that Carona transferred him to less prestigious assignments and continued to punish him even after he was removed from his position.  He contended that Carona and the County violated his First Amendment rights.

The Ninth Circuit disagreed, holding that because Bardzik was in a “policy making” position, he was subject to removal for political reasons. As the court explained, the First Amendment protects the rights of citizens to criticize a government official, to support a candidate opposing an elected official, or to run against an elected official (the court referred in this regard to the case of Branti v. Finkel, 445 U.S.507, 513–17.) A citizen does not check these rights at the door when he accepts a government job. Ordinarily, an elected official cannot fire or retaliate against an employee for his political opinions, memberships, or activities.

Nonetheless, said the court, “this general rule has some limitations.”  There is a “policymaker exception,” recognizing that an elected official must be able to appoint some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for. (See Branti, 445 U.S. at 517–20; Elrod v. Burns, 427 U.S. 347, 367 (1976).)

The exception exists so that administrative leaders who are elected can have “an opportunity to fulfill expectations” and to do so, they “must have available ... significant facilitators of policy, people who have the personal and partisan loyalty, initiative, and enthusiasm that can make the difference between the acclaimed success of a government agency or program and its failure or, more typically, its lackluster performance.” (See Hall v. Ford, 856 F.2d 255, 263 (D.C.Cir.1988).

Thus, an elected official may dismiss these same policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else. “If [an official is] a policymaker, then …. his government employment could be terminated for purely political reasons without offending the First Amendment.” Fazio v. City of S.F., 125 F.3d 1328, 1332 (9th Cir.1997).

The court has recognized specifically that the rationale allowing for the patronage dismissal of a policymaker also justifies his dismissal for opposing the employer in an election. (See Fazio, 125 F.3d at 1331–32.)

Thus, said the court, “[i]f Bardzik occupied a policymaking position, Carona is entitled to qualified immunity for demoting Bardzik in retaliation for supporting Carona's opponent in the 2006 Sheriff's election.”

However, the court also held that Carona’s alleged continuing retaliation after Bardzik was removed from the policy making post might not be immune from attack.

The court’s opinion outlines the factors to be considered in making the determination whether a given individual is a “policy maker” or not.  For your convenience a complete copy of the Bardzik ruling is attached.

Slote & Links regularly represents and advises employers and employees with respect to workplace issues, so if you have an issue in this area, feel free to give us a call.

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