City Ordinance Established That Position Was A Policymaking One
DAVIS v. OCKOMON (February 3, 2012)
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Larry Davis worked on Democrat Mark Lawler's 1988 Anderson, Indiana mayoral campaign. When Lawler was elected, Davis asked for a position in his administration. Although he had no relevant experience, he was offered the position of Senior Humane Officer. He accepted. Davis remained in the position for the 15 years that Lawler remained mayor. He even remained in the position for a Republican mayor’s four year term, although the Republican mayor did replace many other administration employees with members of his own party. In the 2007 Democratic primary election, Davis supported the losing candidate. He then refused to support the Democratic candidate in the general election. The Democrat won and immediately terminated Davis. Davis brought suit pursuant to § 1983, claiming a First Amendment violation. Judge Lawrence (S.D. Ind.) granted summary judgment to defendants, concluding that Davis' position, based on the job description, was that of a policymaker. Davis appeals.
In their opinion, Seventh Circuit Judges Cudahy, Kanne, and Sykes affirmed. Since the City admitted that Davis was terminated for political reasons, the only issue on appeal was whether Davis' position fits within the exception prohibiting political firing. One group that fits within the exception are policy makers. The Court recognized that determining whether a particular employee is a policymaker is sometimes difficult. The determination should consider both the amount and type of the employee's discretion and should focus on the powers of the office rather than by a particular employee’s actual performance. In applying those principles to the facts, the Court looked to the local ordinances that defined the position’s role, rather than the job description. It found that the ordinances gave the Senior Humane Officer position the authority to promulgate permit regulations, revoke permits, and promulgate animal adoption policies. It rejected Davis' argument that that discretion involved professional rather than political judgment, particularly given that Davis had no professional expertise. Ultimately, the Court concluded that Davis' position did fit within the policymaking exception to the general rule and did not violate the First Amendment.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select