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Powers v. Richards

December 2, 2008

ROBERT POWERS, PLAINTIFF-APPELLANT,
v.
GEORGE E. RICHARDS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of Illinois. No. 04-C-3024-Jeanne E. Scott, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED JANUARY 23, 2008

Before MANION, ROVNER, and EVANS, Circuit Judges.

Robert Powers, a former State of Illinois employee and a member of the Republican Party, brought this civil-rights suit under 42 U.S.C. § 1983 claiming that the governor of Illinois and his staff violated his right to freedom of association when they fired him because of his party affiliation. He also asserted that the members of the Illinois Civil Service Commission denied him procedural due process when they fired him without an adequate pre-deprivation hearing. The district court granted summary judgment in favor of all defendants. Because Powers cannot show that his constitutional rights were violated, we affirm.

From August through September 2002 Powers was a Deputy Director of the Illinois Department of Central Management Services (CMS), the "central procurement and administrative services agency" for the state. See http:// www.cms.illinois.gov/cms/about_cms/quickfacts.htm (last visited Oct. 2, 2008). He was assigned to work as a liaison to the governor's office. According to the defendants, during the waning months of Governor George Ryan's administration, Powers was part of a political scheme to ensure that certain state employees retained their jobs after Governor Ryan, a Republican, left office. These employees had been appointed to four-year terms, during which they could not be fired except for poor performance. Once these terms ended, they could be fired for any reason. See 20 ILCS 415/8b.18, 8b.19. Their terms were set to expire shortly after Governor Ryan, who had decided not to seek re-election, left office. Concerned that the new governor would not reappoint them, in September 2002, they attempted to find a way to secure their jobs. First, they resigned their positions, ostensibly to take different, non-appointed jobs in the state government. A few days later, they returned to their former positions with new four-year terms. Voila! Their jobs were secure until 2006, long into the new governor's term. Powers's role in the scheme was vital, but quite simple: he signed some of the personnel forms required to effectuate the transfers from one job to another. The problem was that he did not have the authority to permit these transfers or to sign the forms. Only CMS's Director-and not a deputy-may approve transfers of employees, and the Director refused to sign the forms. Powers knew that the Director would not sign the authorizations, and so Richards signed his name in boxes reserved for the Director's signature.

Shortly thereafter, in October 2002, Powers took a job as the Executive Secretary of the Illinois Civil Service Commission. The Commission is composed of five Commissioners, and no more than three may be members of the same political party. The Commission, among other duties, hears appeals of state employees regarding discharges, suspensions, transfers, allocations, layoffs and demotions; modifies the Personnel Rules when necessary; and investigates possible violations of the Personnel Code. According to the official position description, the Executive Secretary is the chief administrative officer of the Commission and, in that capacity, among other duties, drafts "major rules and regulations" and presents them to the Commission; makes recommendations to the Commissioners about how disputes presented at hearings should be resolved; enforces the Commission's decisions; develops the budget and approves expenditures; coordinates with other agencies on matters relating to the Personnel Code and Rules; recommends amendments to the Personnel Code; interprets the Personnel Code and Rules for state officials, employees, and members of the public; and investigates alleged violations of the Personnel Code and Rules.

In January 2003, Rod Blagojevich, a Democrat, acceded to the governor's office. His administration began an investigation into the state employees' scheme to subvert the appointment system. In April 2003, Governor Blagojevich's counsel sent a letter to the Commission detailing the findings of the investigation and concluding that Powers and two others who had been working in Governor Ryan's office "appear to have played key roles in concocting and implementing this scheme." Two days later, Powers received a copy of this letter, and the Com-mission met to consider the allegations against him. At the meeting, the Commission decided to place him on administrative leave with pay. In May 2003, the General Counsel for CMS gave the Commission an investigative report that further described the scheme. The next day, the Commission decided to suspend Powers with pay. The Commissioners voted unanimously to authorize then-Chairman George Richards to hold a hearing with Powers. The Commissioners further granted Richards the authority to fire Powers if Powers did not come forward with exculpatory evidence.

On May 21, 2003, Richards sent Powers written notification that the Commission was considering firing him because he fraudulently signed personnel forms. The letter listed the names of potential witnesses, informed Powers of the hearing date, and told him that he had the right to respond. Richards enclosed documents sup-porting the accusations, including copies of the personnel forms Powers signed purportedly as the Director of CMS.

On May 29, 2003, Richards met with Powers, reiterated the accusations against him, showed him the evidence, and invited Powers to respond. Powers admitted that he signed his name in the spot reserved for the signature of the Director of CMS but went on to explain his version of the events. According to Powers, the Director approved the transfers but did not want to sign the forms, and so requested that someone in the Governor's office sign them. Powers insisted that prior administrations also had followed this "process." Powers, however, did not dispute that he signed his name as the Director CMS without official authorization. Thus, Richards recommended that CMS fire him, which it did. Powers then received a post-deprivation hearing before an Administrative Law Judge (ALJ) where he was represented by counsel and had the opportunity to conduct discovery, present evidence, and cross-examine witnesses against him. In November 2003, the ALJ issued his findings and concluded that the Commission was warranted in firing Powers.

In granting summary judgment for the defendants, the district court determined first that Powers lawfully could be fired for his political affiliation because party loyalty is relevant to the job of Executive Secretary of the Commission, and second that Powers received all of the process he was due at his pre-termination hearing. We review this decision de novo, see Argyropoulos v. City of Alton, 539 F.3d 724, 732 (7th Cir. 2008), and agree with the district court that Powers cannot succeed on either of his claims.

Powers first argues that he submitted sufficient evidence demonstrating that Governor Blagojevich and his staff violated Powers's right to freedom of association under the First Amendment when they urged the Com-mission to fire him for his affiliation with the Republican Party. Although there is virtually no evidence supporting a claim that Powers was fired because of his political affiliation, there is ample evidence in the record that he was fired because he tried to help other employees retain their jobs by falsely signing personnel forms as the Director of CMS. Curiously, however, the defendants have not pressed this point and instead have conceded, for the purposes of the summary judgment motion, that they wanted to get rid of Powers because he is a Republican. But even so, we agree with the district court that political affiliation is an appropriate requirement for the position of Executive Secretary and thus Powers could lawfully be fired solely for partisan reasons.

Like a perpetual ping-pong match, control over governments changes hands from one political party to another and back again. Generally, a change in administration, with its corresponding shift in policy goals and priorities, does not affect government employees. The political affiliation of most employees does not affect their ability to do their jobs, and a new administration might violate the First Amendment if it fired these employees merely because they support a different political party (or if it refused to hire applicants who were not loyalists of the governing party). See Branti v. Finkel, 455 U.S. 507, 513, 515-16 (1980); Elrod v. Burns, 427 U.S. 347, 372-73 (1976). Some jobs, however, can be performed satisfactorily only when the employee supports the administration's ideas about policy and governing. If these jobs are filled with employees who take a view different from the administration, then these employees could thwart the government's ability to enact the policies it had been elected to advance. Thus, where party loyalty is necessary to effectively perform a job, the First Amendment does not prohibit the administration from firing an employee based on party affiliation. See Branti, 455 U.S. at 518; Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 755-56 (7th Cir. 2002).

In assessing whether political loyalty may play a role in an employment decision, we consider whether the position requires the employee to exercise political judgment by crafting policy, see Moss v. Martin, 473 F.3d 694, 699 (7th Cir. 2007), that is, whether the position "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); see also Kiddy-Brown v. Blagojevich, 408 F.3d 346, 355 (7th Cir. 2005). We further ask whether the position entails the exercise of a substantial amount of political (as distinct from professional) discretion. See Allen v. Martin, 460 F.3d 939, 944 (7th Cir. 2006); Riley v. Blagojevich, 425 F.3d 357, 360 (7th Cir. 2005).

Elected officials must rely on official descriptions of individual positions when deciding which employees they may and may not replace with like-minded partisans. Thus, as long as an official description is reliable, we focus on the inherent duties of the position as listed in the description. See Riley, 425 F.3d at 361. Powers does not dispute that the official job description accurately explains the responsibilities of the ...


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