circuit has generally considered whether the job involved a high level of responsibility and whether the position enabled its holder to threaten the goals of the political party in power. See, e.g., Selch v. Letts, 792 F. Supp. 1502 (S.D. Ind. 1992).
In Antioch, after the police chief, the lieutenant is next in command. The Department contained two lieutenants who split the responsibilities of the job. As described by the parties, the lieutenants had a great deal of authority. Between the two, they scheduled and supervised patrols, conducted investigations, and generally ran the office.
Given the absence of direct case law and the high level of responsibility involved in the lieutenant's job, it was unclear at the time Miller filed charges against Fisher whether political affiliation was an appropriate job qualification for the position.
See Upton v. Thompson, 930 F.2d 1209 (7th Cir. 1991) (court held that not only was it unclear in 1986 whether or not the political firing of a deputy sheriff violated the First Amendment, but in 1991, political considerations were appropriate given the autonomy and discretion they possessed). Accordingly, we find that Miller is protected by qualified immunity with respect to Fisher's claim, and grant summary judgment on this portion of the complaint.
2. Radio Dispatcher Nitschneider
If Miller's argument for qualified immunity is strongest in Fisher's case, it is the weakest in Nitschneider's. As opposed to Fisher, who was second in command, Nitschneider was a radio dispatcher for the Department. Miller argues that the head of a public department must legitimately concern himself with the public's perception of his department's competence, lest he face defeat at the polls or removal from office. He goes on to maintain that, as the Department's direct link to the public, a radio dispatcher can play a critical role in shaping public perception of the Department's competence.
While this may be true, there is no question that low level public employees are immune from the patronage system. Equally clear, is that a radio dispatcher, who exercises little meaningful discretion and has no authority over Department policy, is not the sort of employee who can be required to meet a political litmus test. Miller, therefore, is not entitled to qualified immunity with respect to Nitschneider's claim.
3. Investigator Culat
Investigator Culat poses a more difficult question than either Fisher or Nitschneider. Falling between the two on the spectrum of autonomy and discretion, it is more difficult to assess whether political affiliation is an appropriate job qualification, or, more to the point, whether political termination of an investigator violates a clearly established constitutional right. Fortunately, we need not address this issue, for we must grant summary judgment on Culat's claim on other grounds, as discussed in the following section.
C. Efficient Work Environment
A public employee does not lose his or her constitutional rights when she takes a job with the government. However, a public employee's First Amendment rights must be balanced against the governmental employer's need to efficiently and effectively provide services to the public. Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); Churchill v. Waters, 977 F.2d 1114, 1123 (7th Cir. 1992). Whether an employee's First Amendment rights outweigh his employer's interest in harmony is a question of law. Id. at 1690-1692; Breuer v. Hart, 909 F.2d 1035 (7th Cir. 1990) ("Though these inquiries require predicate factual determinations, they are questions of law.").
Miller contends that even if Culat's activities were protected, a matter he disputes, the investigator's conduct disrupted the Department's operation, and Miller's interest in restoring order outweighed Culat's expressive rights. In balancing the parties' interests, courts look to a variety of factors:
(1) the need to maintain discipline or harmony among co-workers; (2) the need for confidentiality; (3) the need to curtail conduct which impedes the [employee's] proper and competent performance of his daily duties; and (4) the need to encourage a close and personal relationship between the employee and his superiors, where that relationship calls for loyalty and confidence.
Breuer, 909 F.2d at 1040, quoting Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972) (per curiam), cert. denied, 411 U.S. 972, 93 S. Ct. 2148, 36 L. Ed. 2d 695 (1973). Both the Supreme Court and the Seventh Circuit have emphasized the importance of the fourth element, declaring that "when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Connick, 461 U.S. at 151-52, 103 S. Ct. at 1692-93. The Seventh Circuit has further specified that "there is a particularly urgent need for close teamwork among those involved in the 'high stakes' field of law enforcement." Breuer, 909 F.2d at 1041.
It is undisputed that Culat's "political" activities included requesting the State's Attorney's office to investigate Miller in connection with missing evidence and looking for Miller's car at area taverns while on duty, at Wilton's behest and unknown to Miller.
Miller claims that this behavior undermined his confidence in Culat's loyalty and performance, and, when asked, Culat conceded that Miller had justification for not trusting him.
There can be no question that a police chief must be able to trust his officers to carry out orders and work to fulfill the obligations of the department. Once assigned to an investigation or project, investigators operate autonomously, with little direct supervision. Here, Culat's loyalty was to Wilton, not Miller, and Miller knew it.
Although Miller presents no evidence that Culat failed to follow instructions, Miller does contend that Culat became a rogue officer -- answering to Wilton, rather than Miller, conducting side investigations without Miller's knowledge or approval, and instigating an investigation of Miller by the State's Attorney. Culat does not deny any of these activities, even conceding that Miller's mistrust of him was justified. Culat Dep. at 261. Under these circumstances, Miller and Culat did not have the trust and rapport to work effectively together. Furthermore, there is evidence that Culat's work itself was being affected. Rather than dedicating his time to Department business, he was spending some of his on-duty hours investigating Miller. See Breuer, 909 F.2d at 1041 ("Had Breuer conducted his investigation [of the police chief] on his own time, without involving other members of the Department, he might credibly argue that these activities did not interfere with his work or the work of others."). Even viewing Culat's behavior in the light most favorable to him -- that he was working for the mayor of his village trying to uncover and expose a corrupt police chief -- we must conclude that his conduct was disruptive.
We do not wish to minimize the importance of "whistleblowers." Often, the willingness of an employee to speak out against his or her employer is all that stands in the way of corruption. At the same time, this circuit has consistently recognized the importance of teamwork and espirt de corps among police officers, and the need for order and discipline throughout a police department. See Egger v. Phillips, 710 F.2d 292, 319 (7th Cir. 1983) ("Mutual trust and respect among agents and between agents and supervisory personnel are particularly important in law enforcement."); Breuer, 909 F.2d at 1041 ("Speech that might not interfere with work in an environment less dependent on order, discipline, and espirt do corps could be debilitating to a police force."). Although Culat's efforts may have been well-intentioned, they jeopardized the cohesion and chain of command within the Department, and were "reasonably calculated to create disharmony or to have impaired discipline." Yoggerst v. Stewart 623 F.2d 35, 40 (7th Cir. 1980). We may commend his intent, but by working as a mole, Culat undercut his ability to contribute to the Department's public responsibilities, and Miller's ability to fulfill his public obligations. Therefore, we grant summary judgment in favor of Miller with respect to Culat's claims.
D. Nitschneider's Discharge
The sole remaining charge, then, stems from Nitschneider's termination. Miller requests summary judgment on this claim, arguing (1) that Nitschneider offers insufficient evidence that her political expression motivated Miller's decision to file disciplinary charges, and (2) that she would have been fired anyway. Miller's first argument must fail, as there is a genuine issue of material fact regarding Miller's motivations. Nitschneider avers that Lieutenant Watkins commented that she was on the wrong political side and should watch herself. Additionally, Nitschneider offers evidence that Miller elected not to file charges against other Department employees caught committing similar violations. Finally, at least one trustee heard Trustee Cunningham remark that had Nitschneider not gotten involved, she would not have been in her position.
Miller's innocent explanations of these statements do not eliminate them, nor does the gap between Nitschneider's statement and Miller's decision to file charges eradicate any issue regarding his motivation. A reasonable trier of fact could find, based on the evidence, that Nitschneider's public support of Miller's detractors prompted his actions against her.
Miller's second argument -- that Nitschneider would have been fired anyway -- carries more force, at least on its face. Miller argues that the videotapes of Nitschneider kissing Culat and removing mail from Watkins' box, along with the Board's eventual decision to terminate Nitschneider, conclusively demonstrate that the dispatcher would have been fired anyway. See Price Waterhouse v. Hopkins, 490 U.S. 228, 242, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989); Matlock v. Barnes, 932 F.2d 658, 665 (7th Cir. 1991) ("A public employer can escape liability for what seems to be a politically motivated employment decision by showing that it would have reached the same employment decision even in the absence of the protected conduct."). Miller's arguments, however, miss the point. Under the Price Waterhouse analysis, Miller must show that his own decision to file charges against Nitschneider would have been the same, regardless of political motivations. Instead, Miller contends that the Board would have fired Nitschneider anyway. Because Nitschneider does not claim that the Board's decisionmaking was tainted by patronage concerns, this inquiry is irrelevant to Miller's liability.
Miller might be trying to argue that his actions did not cause Nitschneider's dismissal, and, consequently, her damages. The fact is, however, if Miller had not filed charges against Nitschneider, the Board would not have held a hearing or have ordered her discharge. Moreover, there is evidence suggesting that Miller did not file charges against other employees caught on the videotape violating Department rules or procedures. Because Miller could have exercised his discretion differently, as he did in the cases of Lange, Kay, and Linehart, his decision constitutes a cause in fact of Nitschneider's damages. Additionally, because the Board's action was foreseeable, Miller's decision proximately caused her discharge, and any resultant damages. In light of the fact issues surrounding the degree to which politics motivated Miller's decision, we deny his motion for summary judgment with respect to Nitschneider's claims.
For the foregoing reasons, we grant in part and deny in part Miller's motion for summary judgment. It is so ordered.
MARVIN E. ASPEN
United States District Judge