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Tuesday, December 4, 2012

Aldermen’s Opposition to Officer's Appointment Not A Free Speech Violation

The Seventh Circuit recently held that a group of aldermen did not violate the First Amendment when they refused to confirm a Commissioner’s appointment for his lack of political support.  In Embry v. City of Calumetplaintiff, the Commissioner for the Department of Streets and Alleys, supported the mayor and a group of aldermen running as a slate in the municipal election.  The aldermen then defected from the team of candidates and pressured plaintiff to support a rival candidate.  When plaintiff refused to support the rival, the aldermen threatened to oppose ratification of his appointment as commissioner of a new department, which encompassed the old Department of Streets and Alleys.  The mayor then appointed another person as commissioner of the new department and plaintiff lost his job.

Plaintiff sued the City, aldermen, and Director of Personnel in federal district court, alleging that the aldermen’s opposition to his appointment was a violation of free speech.  The district court noted that while political patronage dismissals generally violate the First Amendment, the Elrod-Branti exception applied.  The exception states that for policy-making positions, “the government employer’s need for political allegiance… outweighs the employee’s freedom of expression.”  The court found the exception applicable as it applies to “patronage dismissal when one faction of a party replaces another faction of the same party.”

On review, the Seventh Circuit affirmed, agreeing that the Elrod-Branti exception was applicable because plaintiff’s role as Commissioner was a policy-making job.  The court noted that plaintiff’s job closely resembled other public work jobs that involved policymaking, as his duties included planning and overseeing construction of public ways, supervising department employees, and managing the budget.  The Seventh Circuit further noted that plaintiff failed to allege any particular speech that led to his non-appointment.  The court found that it was not enough to solely allege that he was fired based on his political allegiance to the mayor. 

This ruling is consistent with other rulings in the Seventh Circuit and other circuits so it is unlikely to be reversed if appealed.

Post Authored by Erin Baker, Ancel Glink.


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