Edward E. Rice, Cross-Appellee v. Ohio Department of Transportation

Citations: 14 F.3d 1133; 1994 U.S. App. LEXIS 1361; 1994 WL 19125Docket: 92-3855, 92-4040

Court: Court of Appeals for the Sixth Circuit; January 27, 1994; Federal Appellate Court

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Edward E. Rice, an employee of the Ohio Department of Transportation, alleged violations of his First and Fourteenth Amendment rights after being bypassed for an administrative assistant position, which he claimed was filled through a political patronage system favoring individuals with closer ties to the Republican Party. The case, previously affirmed by the Sixth Circuit and later vacated by the Supreme Court for reconsideration based on Rutan v. Republican Party of Illinois, returned to the district court. There, summary judgment dismissed damage claims against the Department due to Eleventh Amendment immunity and against individual defendants based on qualified immunity. However, the court did not grant summary judgment regarding whether the position could be filled on a partisan basis.

In a subsequent bench trial for injunctive relief, the court ruled against Rice, finding he failed to prove his lack of Republican support was the reason for not being appointed. Rice appealed, arguing that the individual defendants waived their qualified immunity defense and that the district court wrongly concluded that political support was not a factor in his non-appointment. The defendants cross-appealed, asserting the position was inherently political. The appellate court found that, despite the defendants' failure to prove entitlement to summary judgment on the political nature of the job, the trial record indicated the position could be filled based on patronage without violating the constitutional rights of other candidates. Thus, the court affirmed the judgment for the defendants, negating the need to address the other issues raised by either party. Rice's Republican affiliation and previous political attempts were noted, confirming his longstanding political ties.

In 1969, Mr. Rice was hired as an administrative specialist at the Ohio Department of Transportation (ODOT) after receiving an endorsement from the Butler County Republican Party chairman. He initially worked in Middletown, Ohio, before relocating to the District 8 headquarters in Lebanon, which encompassed Butler County and seven other counties, employing around 750 individuals in the early 1980s. The district had only two key unclassified positions: district deputy director and administrative assistant. The former was required to be filled by a registered professional engineer, while the latter was described as the "top political position" at the district level.

Following the 1974 gubernatorial election, which resulted in a Republican governor, a vacancy arose for the administrative assistant position. Mr. Rice sought endorsements from the Republican county chairmen but was ultimately not selected, as a majority endorsed McKee Cornett, who was appointed. Mr. Cornett later offered Mr. Rice an unclassified role in the personnel office. Mr. Rice returned to a classified position in November 1975 and served as a personnel officer, occasionally acting as administrative assistant when Cornett was unavailable.

After Cornett's retirement in December 1981, Mr. Rice expressed interest in the administrative assistant role to Patrick McCray, the deputy director for administrative affairs. Rice sought endorsements from the county chairmen again, but five out of eight endorsed Andrew Siehl, the son of another Republican chairman. Despite Brayshaw's recommendation for Rice, Director David L. Weir appointed Siehl. In August 1982, when Siehl took a leave to support a political campaign, Rice expressed interest in a temporary appointment, but James Fife, a subordinate with the backing of the chairmen, was named acting administrative assistant instead.

Mr. Rice sought clarification from Deputy Director McCray regarding his failure to secure the position of Administrative Assistant, learning that endorsement by county chairmen and active Republican support were prerequisites. In December 1982, Rice filed a federal civil rights lawsuit against the Department of Transportation and its officials, which was dismissed on summary judgment. The court ruled that while the First and Fourteenth Amendments protect public employees from dismissal based on partisan politics, they do not prevent hiring decisions from being influenced by political affiliation.

This dismissal was later affirmed but vacated after the Supreme Court's ruling in Rutan v. Republican Party of Illinois, which limited the use of party affiliation in hiring low-level public employees. Following this, the case was remanded for further proceedings. The district court then held a bench trial to determine if political considerations were appropriate for the Administrative Assistant position and whether Rice was denied the promotion due to lack of support for the Republican Party.

Testimony revealed that only a small number of positions within the Department were unclassified, and the final appointment authority rested with the Director of Transportation, who could disregard the district deputy director’s recommendations. The job description outlined the Administrative Assistant's responsibilities in administration, budgeting, auditing, planning, right-of-way, and construction, emphasizing coordination and liaison duties with central office administrators and district staff.

The written job description for the administrative assistant position did not explicitly mention political duties; however, District Deputy Director Brayshaw described it as "the top political position" in the district with significant political responsibilities. Brayshaw indicated that the administrative assistant served as a conduit for input from Republican Party chairmen across the eight-county district, facilitating hiring recommendations. Mr. Rice verified that job vacancies, such as project inspectors and highway workers, were filled based on referrals from county chairmen to the administrative assistant. The Supreme Court's Rutan decision prohibits conditioning job selections on political support, but when James Fife was appointed acting administrative assistant in 1982, Rutan had not yet been decided.

Brayshaw clarified that while he and the administrative assistant were not responsible for establishing departmental policy, both contributed to policy recommendations in their areas. The administrative assistant was expected to engage with top staff and suggest necessary policy changes to address local issues. Although political affiliation was not required to make recommendations, Director Weir noted that the administrative assistant's role involved reporting local public sentiment on various highway projects. District 8 was particularly active, managing numerous highway projects.

In 1977, the Department of Transportation oversaw over 1,000 local government projects funded by federal money, alongside more than 1,000 state highway projects requiring prioritization. Political and technical input from district deputy directors and administrative assistants, as well as central office deputy directors, shaped project reviews. The state experienced declining revenues before 1981, but a gasoline tax increase that year heightened competition for limited funding, creating a politically sensitive environment for prioritizing projects, with administrative assistants playing a key role in providing political insights.

Director Weir's testimony indicated that he viewed the administrative assistant position as one necessitating political loyalty. However, an affidavit he signed in 1984 contradicted this, stating that his appointments were not based on political loyalty. The district court identified a discrepancy, noting that the administrative assistant was supervised by the district deputy director and spent minimal time with the director of transportation, concluding that political affiliation was not essential for the role's effective performance. Weir conceded that political considerations were not necessary for the appointment, and although the court did not address this, the plaintiff highlighted that Weir could not recognize either of the candidates, Siehl or Fife.

Regarding the plaintiff Mr. Rice, the court found that his lack of contributions to the Republican Party or participation in its affairs did not significantly influence Weir's decision to appoint someone else. The court noted that Siehl and Fife may have had better prospects for endorsements from Republican county chairmen due to their fathers' positions within the party. The court did not determine if such endorsements were required for the appointment, possibly viewing nepotism as not unconstitutional and thus irrelevant to the plaintiff’s associational and free speech rights.

Final judgment for the defendants was entered on August 5, 1992, with the plaintiff appealing on August 11, and the defendants filing a cross-appeal on September 2, 1992. The document also reflects on the historical context of the political spoils system in America, noting that significant reforms began over a century ago, with the Civil Service Act of 1883 advocating for merit-based hiring to reduce political influence on public service jobs. The Supreme Court's stance on civil service reform is highlighted through the landmark case Elrod v. Burns, which deemed unconstitutional the dismissal of non-civil-service employees based solely on their political affiliations under a new sheriff.

Justice Brennan, in his plurality opinion, criticized the inefficiency caused by the frequent replacement of public employees with each political transition, arguing that widespread patronage firings cannot be justified as a means to ensure effective governance. He acknowledged the risk of holdover appointees hindering a new administration's policies but deemed this insufficient to validate extensive patronage dismissals. Brennan asserted that limiting such dismissals to policymaking positions would suffice to balance the need for effective government with constitutional protections under the First and Fourteenth Amendments, which he felt were violated by patronage practices that compel officeholders to compromise their beliefs and restrict their political affiliations.

The opinion did not provide a clear definition of "policymaking position," but suggested that the nature and scope of responsibilities are critical in determining whether a job falls within that exception. Positions with well-defined, limited responsibilities are less likely to be considered policymaking, whereas roles with broad, undefined responsibilities are more likely to qualify.

Subsequently, in *Branti v. Finkel*, the Court expanded on the *Elrod* decision, clarifying that even a mere requirement for an employee to be affiliated with the ruling party could be unconstitutional. The Court ruled that assistant county public defenders could not be dismissed by a Democratic successor solely for lacking Democratic sponsorship. Justice Stevens noted that while party affiliation might be appropriate for certain government roles, it would not be acceptable for nonpolicymaking positions without other political characteristics. He illustrated this by stating that a political test would be unsuitable for a state university football coach, despite their role in policy formulation, but could be appropriate for a nonpolicymaking assistant to the governor involved in communications and public relations.

The relevance of a job's policymaking dimension is acknowledged, but the primary consideration remains whether party affiliation is necessary for effective performance in public office. In Branti, the Court determined that an assistant public defender's role, primarily focused on representing citizens against the State, does not warrant dismissal based on political allegiance, as such actions would hinder, rather than enhance, the office's effectiveness. 

The Supreme Court's decisions in Elrod and Branti set the precedent regarding political affiliation as a requirement for public employment. In Rutan, the Court ruled that political tests could not influence hiring, promotion, or transfer decisions for certain low-level state employees, clarifying that the exceptions in Elrod and Branti were not applicable to the cases at hand. 

The case of Faughender v. City of North Olmsted elaborated on these exceptions, examining the political nature of a mayor's secretary's role following a change in administration. It was concluded that the secretary's duties were inherently political, necessitating a political test based on the new mayor's needs and beliefs regarding the position's responsibilities.

Applying these principles, it is established that Ohio's director of transportation, as a "political actor" responsible for significant taxpayer funding, must consider political factors in decision-making, aiming to align spending with voter satisfaction while navigating potential political disagreements over resource allocation.

Effective communication between the director of transportation and the public, as well as political leaders, is facilitated primarily through 24 district deputy directors and administrative assistants statewide. While administrative assistants primarily handle local tasks, their roles are inherently political, similar to those in other governmental positions. The geographical expanse of each district in Ohio's transportation system is substantial, and the size of these districts supports the notion that positions can be politically sensitive. Although the Ohio director does not interact closely with all assistants, they maintain communication with key deputies. Case law does not restrict politically sensitive positions to a limited number of direct reports to department heads, reflecting the realities of large government operations. Patronage appointments cannot be made indiscriminately, but within a department of 9,000, a small number of positions may justifiably be classified as politically sensitive. The appropriateness of political requirements for positions is determined by the courts, but the judgment of elected officials is given considerable weight, as demonstrated in the Faughender case, where the mayor's discretion in assigning political responsibilities was upheld.

The United States Postal Service underwent a significant operational change 25 years ago, transitioning from a system where partisan political tests were used for postmaster appointments to a merit-based system following President Nixon's recommendation to Congress. This shift aimed to eliminate political bias in appointments, and the merit system has been legally upheld since. While some may debate the policy merits of this system, it is legally justified as a choice made by elected representatives. The legislature's classification of jobs as political or nonpolitical merits judicial deference, as noted by the First Circuit.

The roles of local administrative assistants in the Ohio Department of Transportation under Governor Rhodes were comparable to those of postmasters, possessing a political aspect, which justified the application of political tests for their selection. Consequently, the district court's judgment favoring the defendants is affirmed. Various judicial opinions highlight differing views on the implications of political affiliation in job appointments, particularly concerning policymaking responsibilities and constitutional boundaries established in cases like Elrod and Branti. The plaintiffs in Rutan sought promotions or reemployment in jobs involving political considerations, illustrating the ongoing relevance of these legal standards.

Faughender aligns with several appellate court rulings that interpret the Elrod/Branti exception broadly. Notably, Selch v. Letts established that the role of an Indiana highway subdistrict superintendent falls under this exception, while Jimenez Fuentes v. Torres Gaztambide affirmed that a regional directorship in an urban development agency also qualifies due to its involvement in politically contentious decision-making and the responsibilities akin to a policymaker. Justice Powell and Justice Scalia have criticized the Branti standard for its vagueness, yet it is acknowledged that courts should assess factors outlined by Justice Brennan, including the employee's responsibilities, their definitions, and whether they advise or plan for broad goals. The administrative assistant's role sought by Mr. Rice is deemed a policymaking position due to its extensive and poorly defined responsibilities in administration, budgeting, and planning. Key considerations include whether the assistant acted as a communicator on non-technical issues and if they contributed meaningfully to government decision-making where political disagreement exists. The classification of this role affects the validity of applying political tests in hiring.