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Thursday, November 29, 2018

No First Amendment Violation in County's Termination of Employee

A federal appeals court recently ruled in favor of a county being sued by a former employee who claimed the County violated her First Amendment rights by terminating her because of her political affiliation.

The County hired Bogart as its Financial Resources Director in 2007.  Bogart is a Democrat. In 2012, several Republican candidates won election to the County Board, giving the Republicans majority control of the County Board. The Board selected a Republican as the Chairman, who served from 2012 to 2014. At the end of 2014, the Chairman was replaced by another Republican who terminated Bogart within a month of taking that position. Bogart filed suit, claiming the County violated her civil rights by engaging in political retaliation and discrimination when it terminated her.

The district court ruled in favor of the County, finding that because Bogart's position entailed policy-making authority and discretion, the position fell within an exception to the general First Amendment ban on political patronage dismissals. 

Bogart appealed to the Seventh Circuit, which upheld the district court's ruling in favor of the County. The Court acknowledged that the U.S. Supreme Court has held that public employers cannot condition employment on an employee's political affiliation under the First Amendment's right of political association. However, the general rule has an exception known as the "Elrod-Branti" exception that applies when a public employer can show that party affiliation is an appropriate requirement for the effective performance of the public office. Factors such as policy-making authority, the provision of political advice, or access to confidential and politically sensitive thoughts are considered when determining whether a particular position is subject to the exception.

In this case, the Seventh Circuit determined that Bogart's position as the County's Financial Resources Director involved substantial policy-making authority, including developing budgeting and other financial planning documents for the County, making it "effectively a cabinet-level position" in the County, according to the Court. As a result, the County could terminate Bogart without violating her First Amendment rights. Bogart v. Vermillion County (7th Cir. Nov. 26, 2018)


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