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United States District Court, Northern District of Illinois, Eastern Division

March 26, 2003


The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge.


Plaintiff Maurice Cottrell has filed suit against his former employer, the City of Markham ("City"), and Evans R. Miller ("Mayor"), the Mayor of Markham. In his one-count complaint brought under 42 U.S.C. § 1983, Cottrell alleges that the defendants retaliated against him in violation of his First Amendment right to freedom of political association. Defendants move for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted.


Mr. Cottrell was employed by the City from 1985 until he was terminated on July 28, 1999. He held many positions for the City, finally being appointed the Superintendent of Public Works by the Mayor in 1995. At some time prior to his termination, Mr. Cottrell informed the Mayor that he intended to run for mayor in the April 2001 election. While the Mayor himself was not running for re-election due to health problems, the Mayor had decided to support then-Alderman Webb to be his successor as mayor.

On July 28, 1999, the Mayor fired Mr. Cottrell in a letter stating that his termination was based on his actions at a July 21, 1998 City Council meeting. At that meeting, Mr. Cottrell allegedly became angry and accused the city aldermen of reneging on an agreement regarding raises. Defendants also maintain that during that meeting Mr. Cottrell became agitated and called the aldermen's actions dishonest and unfair.

Mr. Cottrell brought this action against the City and the Mayor alleging that they, in violation of the First Amendment, fired him because of his announcement to run for mayor. Mr. Cottrell denies that his termination resulted from his actions at the July 21, 1998 meeting.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The moving party has the initial burden to prove that no genuine issue of material fact exists. Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Once the moving party shows that there is no genuine issue of material fact, the burden shifts to the nonmoving party to designate specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

A government employee who claims a violation of his First Amendment rights must show two things: (1) that he engaged in speech protected by the First Amendment; and (2) that his speech was "a substantial or motivating factor in the defendant's challenged actions." Horwitz v. Bd. of Educ. of Avoca Sch. Dist., 260 F.3d 602, 618 (7th Cir. 2001). Failure to prove either element is fatal to the plaintiff's claim. Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir. 2001). The court here finds that Mr. Cottrell cannot meet the first hurdle.

While government employees generally have the right to political expression without fear of adverse action, Branti v. Finkel, 445 U.S. 507 (1980), certain government positions are exempted from this protection because party affiliation is an appropriate requirement for the effective performance of their duties. Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981). While typically the court balances the employee's freedom of expression and the government's need for political allegiance, Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), such an analysis is not necessary when the employee is a policymaker and the speech at issue implicates his political views. Vargas-Harrison, 272 F.3d at 970-71. The test to determine whether a particular employee should be exempted from First Amendment protections 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." Id. The policy behind the exemption of certain policymakers stems from a need for elected officials to surround themselves with like-minded individuals who will carry out the elected officials' programs. Elrod v. Burns, 427 U.S. 347 (1976). In determining whether continued employment may be conditioned upon political allegiance, the court must consider the following factors: (1) the nature and responsibilities of the office; (2) whether responsibilities are not well defined or are of broad scope; (3) whether the responsibilities include acting as an advisor or formulating or implementing policy and goals; (4) whether the position includes control of a budget and employees, and, if so, how much and how many, respectively; (5) whether the position calls for close work with high governmental officials, making personal loyalty an appropriate consideration; and (6) the salary level of the position, as compared to other positions within the governmental entity. Rodez v. Vill. of Maywood, 641 F. Supp. 331, 336 (N.D.Ill. 1986) (citing Elrod, 427 U.S. at 367-68).

The City argues that, even assuming the City discharged Mr. Cottrell for his announcement to run for mayor, it is shielded from scrutiny under the First Amendment. According to the City, Mr. Cottrell was a policymaker who provided meaningful input into government decisionmaking. Further, the City argues that even if Mr. Cottrell would not be considered a policymaker, the proper inquiry should center on his position as Superintendent, and not the duties and responsibilities particular to him. In contrast, Mr. Cottrell argues he was not a policymaker and that his job had no real authority. He asserts that he had no power to hire, fire or evaluate employees. He contends that the Mayor was the individual who actually ran the department and dictated on a daily basis what would be done that day.

The parties vigorously dispute the responsibility (or lack thereof) that Mr. Cottrell enjoyed in his job. The court finds these disputes, however, to be immaterial in light of the fact that the court's focus must be the position of Superintendent of Public Works, and not the specific tasks and responsibilities assigned to Mr. Cottrell.*fn1 Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir. 1985); Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir. 1985). As the Seventh Circuit noted, the purpose behind the rule is two-fold: "first, to resolve the issue entirely in one proceeding, thereby relieving the courts of the burden of having to reexamine a certain position every time a new administration changes the mix of responsibilities bestowed upon the officeholder; and, second, to provide certainty to litigants." Id.

In light of this focus, the court relies upon the City's ordinance which delineates the responsibilities of the Superintendent of Public Works. With the exception of the salary level (which is not specifically mentioned in the ordinance), all of the factors point toward finding that the Superintendent of Public Works is the type of government employee for whom political allegiance is required. First, the description of the position of Superintendent includes a broad scope of responsibilities. Specifically, the Superintendent "shall have the management and control of all matters and all things pertaining to public works." Markham Code of Ord. § 31.275. The responsibilities of the office are numerous and include: superintendence of all public grounds and buildings, maintenance and repair of all public streets and sidewalks, the establishment of city bench marks from city data, all garbage and waste disposal, all local improvements, maintenance of the waterworks and sewer systems of the city, and the construction and maintenance of all city parks. Id. The Superintendent is also responsible for requisitioning and ordering necessary supplies and materials for the normal operations of the various public works. Id. at § 31.276. With respect to policy matters, the Superintendent is responsible for making recommendations to the City Council for appropriation of funds for the operations of public works, and is also in charge of granting certain types of permits. Id. at §§ 31.276, 31.279. The Superintendent works closely with the Mayor and City Council, meeting with them monthly and making certain recommendations to them. Id. at § 31.276. The Superintendent is also responsible for submitting a yearly budget and supervising employees in the department of public works. Id. at §§ 31.277, 31.278.

Given that the position of Superintendent of the City of Markham satisfies virtually all of the pertinent factors, the court concludes that Mr. Cottrell was exempt from the protection of the First Amendment.*fn2 According to the duties of his position, the Superintendent had meaningful input on issues such as budgeting, personnel, and the timing and placement of public works, about which there was certainly room for principled disagreement on their implementation. Nekolny, 653 F.2d at 1170.

Regardless of whether Mr. Cottrell was fired because he announced his intention to run for mayor (as he contends) or because he spoke out against the policies of the Mayor (as the City maintains), he cannot show that he was engaged in speech that was protected by the First Amendment. Mr. Cottrell argues that he was fired because he informed the Mayor that he intended to run for mayor in an upcoming election. As the Seventh Circuit recently iterated, "[a]n elected official is entitled to insist on the loyalty of his policymaking subordinates . . . ." Vargas-Harrison, 272 F.3d at 971. The Mayor was entitled to demand loyalty and allegiance to his programs and his core group of associates, including his hand-picked successor for mayor. Because Mr. Cottrell was a policymaker, defendants could lawfully fire him because of his political disloyalty.

Finally, the court notes that Mr. Cottrell's announcement to run for mayor implicates his political viewpoint, and is the type of speech that could create a conflict with the Mayor. Id. at 973-74 (noting that the full Pickering balancing test must be applied even to a policymaker where the speech at issue does not implicate the employee's politics or policy viewpoints). This speech, therefore, was not protected by the First Amendment in light of his policymaker status. As a result, the court grants the defendants' motion for summary judgment.

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