Court of Appeals Decision Supports First Amendment Rights of Sheriff’s Deputies
Aaron Nisenson, I.U.P.A. General Counsel
In a recent decision in a case litigated by Jon Cermele, an I.U.P.A. lawyer in Milwaukee Wisconsin, the Seventh Circuit found that supervisory positions in Sheriff’s departments are not exempt from First Amendment protection. Fuerst v. Clarke, 454 F.3d 770 (7th Cir. July 27, 2006). This decision should be particularly helpful as it was authored by Judge Victor Posner, a conservative jurist and perhaps the most influential Judge in the country not on the Supreme Court.
In Fuerst the Sheriff was sued for failing to promote a Sheriff’s deputy to Sergeant in retaliation for the deputy’s political opposition to the Sheriff. The Sheriff alleged that the position of Sergeant was a “policy making” position which would not have the same First Amendment rights as other public employees. In recent years some Courts have expanded this policy making exception to reach a large swath of employees, particularly in Sheriff’s Departments. In the Fuerst case, the Seventh Circuit put the brakes on this trend.
First the Court applied general First Amendment principles to the Sheriffs office and explained that only policy making positions are exempt from First Amendment protection: “a public official cannot be fired on the basis of his political affiliation unless the nature of his job makes political loyalty a valid qualification.”
In language that will be helpful elsewhere, Judge Posner made clear that discretion and supervision are not sufficient to make a position a policy making one. . “[In determining whether a position is a policy making one] we must not confuse the making or advising on matters of policy with either discretion or supervision. Discretion often is exercised not only by policymaking officials but also by workers all the way down the chain of command to the bottom-most layer, which in this case would be the policeman on the beat . . . . That does not make a policeman a policymaker. . . . Senior civil servants exercise significant discretion, but it is discretion regarding how best to implement the policies formulated by their political superiors, and so it does not make them policymakers.”
Applying these principles Judge Posner found that “sergeants in the Milwaukee County Sheriff's Department are not policymaking officials . . . They have modest supervisory authority and exercise a broader discretion than the deputy sheriffs (the cops on the beat), but they do not formulate departmental policy.”
In an interesting section, Judge Posner also indicated that an employees’ status as a “police officer” instead of a “civilian” would weigh against finding that the employee was a policy maker, thus excluding even high ranking police officers from the policy making category. “The Milwaukee County Sheriff's Department has some 600 deputy sheriffs, 43 sergeants, 22 lieutenants and captains, and an inspector, who is the number 2 official in the department. It is uncertain whether any of these are policymaking officials, even the inspector, who is a police officer rather than a ‘civilian.’”