Monday, January 20, 2020
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1st Amendment safe in political patronage jobs

A three-judge panel of the US Court of Appeals for the Seventh Circuit affirmed a district court’s granting of summary judgment against a First-Amendment claim brought by a Calumet City, Ill., streets commissioner who was demoted because he supported a candidate three city councilmen didn’t like.

Jay Embry had worked for the Department of Streets and Alleys for more than 10 years, eventually rising to the highest position in 2007, when Mayor Michelle Qualkinbush appointed him commissioner of that department. This is known as a political patronage appointment, where the person who wins an election gets to appoint certain people based on their loyalty or work during the campaign, rather than strictly on merit.

In the role of commissioner, Mr Embry oversaw the construction and repair of all streets, paving, sidewalks, etc. During the 2009 municipal election, he campaigned for the “United to Serve You” team of candidates, which included the mayor and three of the four aldermen he later sued.

Mr Embry found himself torn between his loyalty to the mayor and the aldermen when those aldermen broke rank with the “United to Serve You” team. He stuck with the mayor, and so, when his department merged with the Sewer and Water Department to create a new department, she nominated him to be the commissioner.

But the aldermen were determined not to support his nomination, the mayor nominated someone else, and that other nomination was approved by the council, including the aldermen who were formerly on the “United to Serve You” team.

Mr Embry sued the city and the four aldermen who blocked his nomination on the grounds that his First-Amendment rights were violated. He claimed he didn’t receive the promotion because of his speech backing the mayor’s faction, not than the aldermen’s faction, of a political party, but a district judge saw no free speech violated. Mr Embry appealed to the Seventh Circuit, and he again lost.

What’s this got to do with schools? you may ask

Now, I’m interested in the First Amendment quite a bit. I like them all, but the First Amendment is probably my favorite. But still, this is a blog about schools, so why is this posted here? Well, not so much in Illinois, but in many places around the country, school boards are appointed, not elected. As such, they are considered political patronage jobs.

For example, the highest school boards in both Illinois and Maryland are appointed by the governor, though ratification by the state senate is required. Board members are on staggered terms so a governor will only get to appoint about half the board during a single term, but if a governor stays in office longer, all members of the state board of education will be his or her appointees.

This ruling from the Seventh Circuit technically only affects Illinois, Indiana, and Wisconsin, but it is based on Supreme Court cases that would seem to stand up anywhere: in the cases of Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), the Supreme Court said people who were appointed by an elected president, governor, or mayor to political patronage jobs and got fired or demoted only because of their political affiliation had their First Amendment rights violated.

Although these cases would seem to support Mr Embry in this case, the Seventh Circuit applied an exception to this rule, which was outlined by the Supreme Court in Elrod and Branti: Certain governmental positions “require a heightened need for trust and confidence,” the appellate court said. In “policymaking jobs” like this, “the government employer’s need for political allegiance … outweighs the employee’s freedom of expression … [and the] employer may fire individuals in policymaking jobs solely because of their political affiliation.” The court cited Thomczak v. City of Chicago, 765 F.2d 633 (7th Cir. 1985).

Not only that, but if other appointments for “policymaking jobs” are made by elected officials on political patronage grounds, those employees’ jobs might not be so secure if the political climate changes or if they change their loyalty. This could involve people who work in the district office of an elected school board and even principals and superintendents, although the majority of these jobs are based on merit, not politics.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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