No Qualified Immunity for Terminations Due to Political Affiliation

By Douglas H. Duerr December 16, 2020
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A newly elected township assessor who allegedly fired a group of employees due to their political support for the incumbent town

A newly elected township assessor who allegedly fired a group of employees due to their political support for the incumbent township assessor was not entitled to qualified immunity from personal liability for First Amendment claims, according to the 7th U.S. Circuit Court of Appeals.

After being elected the Milton Township assessor in DuPage County, Ill., the new assessor purportedly terminated deputy assessors due to their support for his political rival and predecessor. The terminated employees filed a wrongful termination suit against the new assessor, both in his official capacity as township assessor and in his individual capacity, claiming that the terminations violated their free speech rights under the First Amendment. 

The township assessor moved the district court to dismiss the claims against him as an individual, and the district court refused. But even though the case remained pending in district court against the township assessor in his official capacity, the appellate court had jurisdiction to review the denial of qualified immunity. Stated broadly, qualified immunity is intended to protect reasonable public officials from individual liability for damages incurred while performing their governmental functions, so long as they do not violate a clearly established constitutional right.

Because the township assessor moved to dismiss at the beginning of the case rather than later in the proceedings, the district and appellate courts took everything in the complaint as true and drew all reasonable inferences in favor of the plaintiffs to determine whether, at this stage, the plaintiffs could proceed against the assessor in his individual capacity.

According to the allegations in the complaint, only the township assessor and the chief deputy assessors had the authority and responsibility to make or provide input into policy decisions. The plaintiffs alleged that they merely applied computer programs and fulfilled technical requirements in performing their job duties of assessing property, thereby exercising, at most, professional discretion. In reviewing the applicable state law and a prior court decision, there was no legal basis for concluding that the plaintiffs had a legal obligation or right to make policy.

The appellate court determined that the law was well-established within the 7th Circuit that public servants employed in non-policymaking positions cannot be subjected to termination or other adverse employment actions based on their political affiliation. Based on the early stage of the proceedings, the appellate court held that the plaintiffs' allegations were sufficient to establish that political affiliation was not appropriate in their cases. Because a reasonable public official in the township assessor's position should have known of that legal right held by the plaintiffs, the assessor was not entitled to qualified immunity in connection with his decision to terminate the plaintiffs.

Hanson v. LeVan, 7th Cir., No. 19-1840 (July 21, 2020).

Professional Pointer: While the defendant will have an opportunity to avoid trial by presenting sufficient evidence that the deputy assessor plaintiffs were in fact involved in policymaking, this decision highlights the limitations on termination of government employees due to political interests. Although elected officials are, to some degree, represented by their subordinate employees and may worry that their image and effectiveness could be undermined by employees who prefer a different candidate or political party, termination of such employees must be based on job performance or other factors unrelated to politics. Generally, only those who are intimately involved in making policy can be required to be politically aligned with the elected official.

Douglas H. Duerr is an attorney with Elarbee, Thompson, Sapp & Wilson LLP, the Worklaw® Network member firm in Atlanta.

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