MIRCH v. CITY OF TROY

FREDERICK J. SCULLIN, JR., Chief United States District Judge.

I. INTRODUCTION

By complaint dated October 31, 2000, Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his free speech and association rights under the First and Fourteenth Amendments to the United States Constitution.

Plaintiff, Robert Mirch, a well-known political actor in Troy and Rensselaer County, was terminated from his position as Deputy Commissioner of Public Works in the City of Troy Department of Public Works ("DPW") on November 3, 1999, the day after Defendant Pattison's re-election as Mayor of the City of Troy.

Plaintiff was first employed by the City of Troy as a Sanitation Supervisor in 1980. Following Plaintiff's support of Defendant Pattison's mayoral campaign in 1995, the outgoing Republican administration abolished Plaintiff's Sanitation Supervisor position, effective February 1996. On February 5, 1996, Plaintiff was appointed to the position of Deputy Commissioner of Public Works in the City of Troy Department of Public Works ("DPW") by the newly-elected Democratic Mayor, Defendant Mark Pattison. During the 1999 campaign for Defendant Pattison's re-election it was "common knowledge" that Plaintiff was not "enthusiastically supporting" Defendant Pattison's re-election for "both personal and political reasons." In fact, Plaintiff supported the Republican challenger Carmella Mantello. As stated above, Defendants Pattison and Conroy terminated Plaintiff on November 3, 1999, the day after Defendant Pattison's re-election. Defendant Pattison and Defendant Deputy Mayor Conroy concede that Plaintiff was terminated because of his political affiliation and activity.

Plaintiff contends that Defendant Pattison's and Defendant Conroy's decision to terminate him on the basis of his political affiliations constitutes a violation of his First and Fourteenth Amendment rights to free speech and association. Defendants contend that Plaintiff occupied a role as a "policymaker" within the Pattison Administration and, thus, Plaintiff is without First and Fourteenth Amendment protections for purposes of his employment.

Presently before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The Court heard oral argument in support of, and in opposition to, Defendants' motion on April 4, 2002. At the conclusion of the argument, the Court informed the parties that a written decision would be forthcoming. The following constitutes the Court's determination of the pending motion.

II. DISCUSSION A. Standard of Review

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the non-moving party based on the evidence presented, the legitimate inferences drawn from that evidence in favor of the non-moving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. First Amendment Analysis

As stated above, Defendants concede that Plaintiff's termination was politically motivated; thus, the sole issue before the Court is whether Plaintiff's position qualifies as a "policymaking" position and is, therefore, exempted from First Amendment protection against political patronage.

Public employees are generally protected from discharge for exercising their First Amendment rights; however, "political affiliation is a valid employment criterion for jobs held by `policymaking' or `confidential' employees." Butler v. New York State Dep't of Law, 211 F.3d 739, 743 (2d Cir. 2000) (citing Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L. Ed. 2d 574 (1980); Elrod, 427 U.S. at 367, 372, 96 S.Ct. 2673).

The Second Circuit has identified a number of relevant factors to weigh in considering whether there exists a rational connection between political affiliation and the inherent duties of a position. These factors include whether the employee:

(1) is exempt from civil service protection, (2) has some technical competence or expertise, (3) controls others, (4) is authorized to speak in the name of policymakers, (5) is perceived as a policymaker by the public, (6) influences government programs, (7) has contact with elected officials, and (8) is responsive to partisan politics and political leaders.

Vezzetti v. Pellegrini, 22 F.3d 483, 486 (2d Cir. 1994) (citations omitted); Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993). The final four factors can be condensed into a single question, "whether the employee in question is empowered to act and speak on behalf of a policymaker, especially an elected official." Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir. 1997). The Second Circuit has also recognized that a high salary is a common characteristic of policymaking positions. See Savage v. Gorski, 850 F.2d 64, 68 (2d Cir. 1988) (citations omitted). No single factor is dispositive. See Vezzetti, 22 F.3d at 486.

Defendants contend that all of the Vezzetti factors weigh in favor of finding that Plaintiff's position as Deputy Commissioner of DPW constituted a "policymaking" role. Without denying his status as a policymaker, Plaintiff contends that questions of fact predominate, thus, summary judgment is inappropriate. The Court will address each of the Vezzetti factors seriatim.

Plaintiff's position appears to confuse the notion of an issue of fact with a fact-specific inquiry. Consistent with the weight of authority, the Second Circuit has held that the "policymaking" nature of a job is an issue of law, capable of resolution on a motion for summary judgment. See Vezzetti, 22 F.3d at 486; Bauer v. Bosley, 802 F.2d 1058, 1062 (8th Cir. 1986); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st Cir. 1986); Ness v. Marshall, 660 F.2d 517, 522 (3d Cir. 1981).

With respect to the first Vezzetti factor pertaining to the nature of the position, there is no dispute that the Deputy Commissioner's position was treated as an exempt position, filled without a civil service examination. See Complaint ¶ 16. Thus, Plaintiff's contention that Defendants were considering the creation of a "competitive class title" for his position is irrelevant.

With respect to the second Vezzetti factor regarding technical competence, Plaintiff, with twenty years of experience, was considered expert in all things DPW. Again, Plaintiff's contention that his competence was based on his many years of experience, rather than any special training, is irrelevant for present purposes.

With respect to the third Vezzetti factor relating to his control of others, Plaintiff's role as Deputy Commissioner required the management of the five Bureaus of the DPW, including supervisory authority over the supervisors, forepersons and other workers; all totaled over sixty people worked under Plaintiff's direct or indirect supervision. See Transcript of Deposition of Robert Mirch, dated October 25, 2001 ("Tr. I") at 26-27, 29-30, and November 1, 2001 ("Tr. II") at 195-96.

With respect to the fourth Vezzetti factor pertaining to his authority to speak for policymakers, the record reveals that Plaintiff regularly communicated with the press, the public, and other city agencies regarding matters relevant to the DPW. Specific instances of high-profile media communications included Plaintiff's "damage control" efforts to stave off what he considered to be a politically motivated "scandal" within his department, see Tr. I at 36, 39, 47-48, 102-05, and a letter to the editor of a local newspaper responding to criticism of another administrative official from two City Council members. See Tr. I at 57-59.

With respect to the fifth Vezzetti factor, whether Plaintiff was perceived as a policymaker, the record reveals that Plaintiff dealt directly with the public in resolving complaints on all DPW matters and that he communicated DPW policy in person, in the press, at community meetings, and at meetings with other city agencies. See Tr. I at 98-99.

With respect to the sixth Vezzetti factor, pertaining to Plaintiff's influence on government programs and policy, the record indicates that Plaintiff persistently advocated for programs and policies that he believed had merit and that such advocacy often resulted in programmatic change, including the elimination of trash fees, the adoption of an afternoon sweeping regimen, the creation of an annual paving priority list, the control of "cutout franchise" allotments, and personal discussions and issue advocacy with the Mayor concerning the potential impact of a proposed property tax on the Distressed Cities Aid grant funding from the State. The record further reveals that Plaintiff represented DPW at weekly policy meetings in the Office of the Deputy Mayor. See Tr. I at 111-121. Plaintiff was also instrumental in coordinating an interagency Civil Enforcement team and urging a more aggressive implementation of the program with the Mayor and Deputy Mayor. See Tr. I at 76, 80, 95; Tr. II at 141-44.

With respect to the seventh Vezzetti factor, Plaintiff's contact with elected officials, it is undisputed that Plaintiff was a veteran politician and an elected county legislator with many prominent connections, that Plaintiff actively campaigned for other politicians while serving as the Deputy Commissioner of DPW, that he presented his own budget to Council committees, and that he regularly handled constituent complaints for the Mayor. The record also reveals that Plaintiff had "one-on-one access" to Defendant Mayor Pattison and that Plaintiff maintained well-known and publicized political connections with and without the Pattison Administration. See Tr. I at 106-07; Tr. II at 155-57.

With respect to the eighth Vezzetti factor pertaining to Plaintiff's responsiveness to partisan politics and political dynamics, as stated above, there is no dispute that Plaintiff, a self-identified "politician," remained actively involved in partisan politics. Indeed, the gravamen of this suit arises out of Plaintiff's active personal involvement and public support of the Republican challenger in the 1999 Mayoral campaign.

Last, with respect to Plaintiff's salary, Plaintiff's appointment to Deputy Commissioner of DPW, as measured by his November 1999 salary of $53,712.00, represented approximately an $18,000.00 increase from his prior position and, thus, may be considered a "high salary" for purposes of determining his status as a "policymaker."

In sum, Plaintiff's status as a "policymaker" is evident in the breadth of his responsibilities, his prominent public role in a position with substantial public exposure, and his political connections within and without the Pattison Administration.

In view of the Vezzetti factors enumerated above, the Court finds, as a matter of law, that Plaintiff's position as Deputy Commissioner of DPW for the City of Troy could properly be considered a "policymaking" role. Therefore, Plaintiff's dismissal for reasons of political patronage does not violate his First and Fourteenth Amendment rights to free speech and association, but rather, is exempted from such protections as a means of allowing an elected administration to implement its policies. Accordingly, the Court grants Defendants' motion for summary judgment with respect to Plaintiff's § 1983 claim against the City of Troy.

C. Qualified Immunity

Alternatively, assuming arguendo that Plaintiff did not occupy a "policymaking" role, the Court must address the propriety of Plaintiff's claims as against Defendant Pattison and Defendant Conroy. Defendant Pattison and Defendant Conroy contend that they are entitled to qualified immunity from suit.

Plaintiff's complaint names Defendant Pattison and Defendant Conroy in both their official and individual capacities; because Plaintiff has asserted a distinct claim against the City of Troy, the claim directed against Defendant Pattison and Defendant Conroy in their "official capacity" may be dismissed as redundant. See Wallikas v. Harder, 67 F. Supp.2d 82, 83 (N.D.N.Y. 1999) (citations omitted).

Public officials sued in their individual capacities are entitled to a defense of qualified immunity "if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Weyant v. Okst, 101 F.3d 845, 857-58 (2d Cir. 1996) (citation omitted).

In opposition to Defendants' claim of qualified immunity, Plaintiff contends that, at the date of his termination, "the law concerning the scope of the policymaker' exception to the Elrod/Branti prohibition against politically based termination, cannot be said to have been other than `clearly established.'" Plaintiff's Memorandum of Law at 21.

The Court cannot agree. While the First Amendment rights of speech and association are firmly established in many contexts, even a cursory review of the "`policymaker' exception" as articulated in Elrod/Branti and their progeny, reveals that the contours of First Amendment protections in the context presented by the instant case are considerably less clear. Furthermore, for the reasons set forth above, the Court finds that it was objectively reasonable for Defendant Pattison and Defendant Conroy to view Plaintiff as a "policymaker." Thus, Defendants' decision to terminate Plaintiff for political reasons cannot be considered a violation of a "clearly established" right.

The Court is equally unpersuaded by Plaintiff's insistence at oral argument that qualified immunity may not be granted here because Defendant Pattison's and Defendant Conroy's affidavits fail to reveal their subjective intent with respect to Plaintiff's termination. It is well-settled that the doctrine of qualified immunity turns on questions of "objective reasonableness," not subjective intent. See Sound Aircraft Servs., Inc. v. Town of E. Hampton, 192 F.3d 329, 333 (2d Cir. 1999); Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982).

Therefore, Defendant Pattison and Defendant Conroy are entitled to qualified immunity from suit. Accordingly, the Court grants Defendants' motion for summary judgment based upon qualified immunity with respect to Plaintiff's § 1983 claim against Defendant Pattison and Defendant Conroy in their individual capacities.

III. CONCLUSION

After carefully considering the file in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated herein as well as at oral argument, the Court hereby

ORDERS that Defendants' motion for summary judgment is GRANTED IN ITS ENTIRETY; and the Court further

ORDERS that the Clerk of the Court enter judgment in favor of Defendants and close this case.

IT IS SO ORDERED.