In Hunt v. County of Orange, published February 13, 2012, a divided 9th Circuit panel reversed a district court ruling that a county sheriff was within his right to demote a lieutenant sheriff who ran against the sheriff in an election, and criticized the sheriff during the campaign. The First Amendment bars an elected official from firing or otherwise retaliating against employees for their political activities. There is a narrow exception for employees in "policymaking" positions. The lieutenant sheriff plaintiff was one of sixty lieutenants, and did not deal directly with the sheriff; but he was also the chief of police services for a city in the county. The jury, in response to special interrogatories, concluded that the factors that render an employee a policymaker did not apply to the plaintiff. The district court nevertheless concluded that the factors applied to the plaintiff, and that the sheriff therefore had the right to demote the plaintiff. It alternatively ruled that the sheriff was entitled to qualified immunity.
The 9th Circuit panel majority reversed the district court's conclusion that the plaintiff was a policymaker. The key question in determining policymaker status is not whether the factors of a mechanical test apply, but rather whether political loyalty is an appropriate requirement for the employee's performance of his or her duties. The sheriff failed to prove that the lieutenant's loyalty to the sheriff was necessary to carrying out his duties. The district court also concluded that the jury's findings established that the plaintiff was not a policyholder. But because a reasonable elected official could have mistakenly concluded that the plaintiff was a policyholder, the majority affirmed the district court's conclusion that the sheriff was entitled to qualified immunity.
The dissenting judge opined that the plaintiff was a policyholder.
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