department supervisors are required to notify the Human Resources Department of an employee's break in service, to forward written reprimands to the Human Resources Department, and to forward requests for membership in professional organizations. The Manual directs employees to turn over any compensation for jury duty to the Human Resources Department, to apply to the Human Resources Department to receive credit for prior service, to inform the Human Resources Department of dual employment, and to direct all requests to examine their personnel file to the Human Resources Administrator in writing.
We must determine whether defendants have enunciated a compelling reason to justify terminating Milazzo for her lack of political sponsorship. Two Supreme Court cases establish the guidelines to evaluate the legality of governmental employment decisions based upon political affiliations. Generally, a public employer may not terminate an employee for exercising her rights under the First Amendment. Elrod v. Burns, 427 U.S. 347, 360, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). However, political affiliation may be an appropriate employment consideration for confidential and policymaking positions. Branti v. Finkel, 445 U.S. 507, 517-18, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980). In Elrod v. Burns, the Supreme Court announced that a public employer's decision to terminate employees occupying policymaking or confidential positions was justified "to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration . . . ." Elrod, 427 U.S. at 367. The Supreme Court abandoned strict reliance upon the labels of policymaker and confidential employee in Branti v. Finkel, relying instead upon a more functional analysis. Branti, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287. The relevant question under Branti is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved. Branti, 445 U.S. at 518.
The Seventh Circuit further refined the Branti formula, stating that "the test is whether the position held by the individual authorizes either directly or indirectly meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation." Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981). Such terminations are justifiable because "a public agency would be unmanageable if its head had to appoint or retain . . . members of the opposite party . . . in positions of confidence or positions in which they would be making policy or what amounts to the same thing, exercising discretion in the implementation of policy. He could not trust the occupants of the confidential positions to keep his secrets or the occupants of the policymaking positions to carry out his policies with fidelity and diligence." Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir 1993).
For example, in Bicanic v. McDermott, the Seventh Circuit ruled that the plaintiff's former position of coordinator of the municipal park and recreation program was inherently political in nature. 867 F.2d 391, 393 (1989). As coordinator, plaintiff had been responsible for organizing and coordinating the park program, preparing the budget, interviewing candidates for employment and recommending who should be hired, and negotiating construction contracts. Bicanic, 867 F.2d 391 at 393. The court held that the uncontested facts demonstrated that the position allowed for input into policymaking decisions. Id; see also Tomczak v. City of Chicago, 765 F.2d 633, 642 (1985) (responsibility for implementing policies, and planning and recommending budget requirements are indicative of a policymaking position).
The position need not be the final word in the decisionmaking process to constitute a policymaking position; it is sufficient that the position afforded input into such decisionmaking. Warzon v. Drew, 60 F.3d 1234, 1240 (7th Cir. 1995) (focusing upon input as opposed to final control). Furthermore, positions that do not carry policymaking responsibilities, but require political loyalty and confidentiality are similarly subject to patronage firings. See Soderbeck v. Burnett County, 752 F.2d 285, 288 (1985) (employer may require position of confidential secretary to be filled with political ally).
Initially, Milazzo contends that Wisniewski's testimony regarding the Human Resources Administrator's position is wholly conclusory. Without discussing the merit of this contention, we note that Wisniewski amended his affidavit to include specific examples of interviewing and hiring employees, suggesting and implementing personnel policies, recommending the creation of new positions, participating in disciplinary investigations, and participating in budget requests by determining positions submitted for reclassification. See Wis. Amnd. Aff. We find that this evidence demonstrates that the position of Human Resource Administrator was a policymaking and confidential position. Wisniewski served as an advisor to Judge [ ILLEGIBLE WORDS] pertinent information regarding personnel and budgetary needs to the table. He was responsible for a wide range of employment issues and handled the Office's labor relations and negotiations. Such a position clearly authorizes meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.
Milazzo does not seriously contest that Wisniewski performs such tasks, nor does she challenge his authority to do so. Rather, she argues that the evidence demonstrates that neither she, her predecessor, nor her immediate successor performed the tasks or were granted the autonomy that Wisniewski is afforded in the position of Human Resources Administrator. Milazzo contends that such evidence defeats defendants' motion for summary judgment, because it raises a genuine issue of material fact as to the true nature of the position. We disagree, and find that the Seventh Circuit precedent dictates the opposite conclusion. See, Tomczak v. City of Chicago 765 F.2d 633 (1984); Hernandez v. O'Malley, 98 F.3d 293 (1996).
In determining whether a position is susceptible to patronage dismissal, the Court must focus upon the nature of the position itself, not a particular employee's performance of the position. Hernandez v. O'Malley, 98 F.3d 293, 296 (7th Cir. 1996). Accordingly, a position may be considered policymaking or confidential despite the fact that the previous officeholder performed fewer or less important functions than the current officeholder. Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir. 1985). Such a policy prevents one political party from appropriating "a sensitive office by appointing a routineer who (in W.S. Gilbert's language from H.M.S. Pinafore) 'never thought of thinking for himself at all.' Thus a new Water Commissioner may hire his own deputy, even if the incumbent is a witless paper pusher; the office carries the potential for making discretionary political judgments, and higher-ups may insist that the slot be filled with someone who will use those powers, and whose political credentials therefore matter. " Hernandez, 98 F.3d at 296.
The Sixth Circuit recently applied this "potential power" rationale under circumstances similar to those presented by Milazzo, and held that a new judge executive was entitled to consider political affiliation in firing his purchasing agent and chief financial officer. Blair v. Meade, 76 F.3d 97 (6th Cir. 1996). The court held that "the fact that the defeated judge executive had [one of the plaintiffs] perform ministerial rather than policymaking tasks does not change the conclusion that the inherent nature of his job made him particularly well-suited to aid in policymaking." Id. at 101. Therefore, the court ruled that the new judge executive was entitled to fill the plaintiffs' former positions with loyal employees capable of policymaking. This Court agrees with the Sixth Circuit and finds its holding to be consistent with Seventh Circuit law.
In the case at bar, both parties acknowledge that the Human Resources Administrator's office compiled extensive data regarding all aspects of personnel needs and employee histories. In fact, Milazzo admits that she interviewed candidates for employment. This activity automatically leads to subjective judgments concerning a job candidate's overall presentation and ability. The Court's careful review of the undisputed evidence discloses that the Human Resources Administrator's position is particularly well suited to aid the Chief Judge in decisions regarding the expansion of staff, budget, personnel, labor relations, and hiring and firing. Thus, we cannot accept Milazzo's contention that Judge O'Connell is prohibited from filling the position of Human Resources Administrator with an individual qualified to engage in tasks not granted to Milazzo. Rather, we find that the office was always endowed with the "potential for making discretionary political judgments." Hernandez, 98 F.3d at 296; see also Hudson v. Burke, 913 F.2d 427 (7th Cir. 1990) (granting defendants' motion for summary judgment where city finance committee chairman utilized investigators to provide subjective input into policy decisions, even though previous finance chairman filled the positions with ministerial employees); Kline v. Hughes, 1997 U.S. Dist. LEXIS 4028, 1997 WL 151312 (S.D. Ind., Mar. 5, 1997) (granting defendants' motion for summary judgment despite plaintiff's contention that both she and her predecessor performed purely ministerial tasks). Defendants' motion for summary judgment on Count II of plaintiffs' amended complaint is granted.
The undisputed facts establish that Ms. Milazzo's former Human Resources Administrator position has inherent policymaking potential. Therefore, this Court concludes that political affiliation is a reasonable requirement of the Human Resources Administrator position and that Chief Judge O'Connell did not violate Ms. Milazzo's First Amendment rights when he terminated her employment with the Circuit Court of Cook County. Ms. Milazzo's job termination is unfortunate, but does not violate the Constitution.
United States District Court Judge
DATED: October 21, 1997