NOTE FROM ROBIN: This is the second and final installment in a series on the law regarding patronage dismissals in public sector employment by Damon Kitchen, head of our public sector industry group.

In last week's installment, I provided an introduction to the issue of patronage dismissals in the public sector, and a discussion of the Supreme Court's Elrod (1976) and Branti (1980) decisions. In this installment, I'll talk about how the "Elrod-Branti standard" has been applied by the courts, particularly in the Eleventh Circuit, where I practice.

Since the Elrod and Branti decisions were rendered, many of the United States Courts of Appeals, using the Elrod-Branti standard as a starting point, have developed their own rules and tests for deciding political patronage-based cases. These tests and rules often vary depending upon the federal circuit where one is practicing.

Over the past 30 years, the Eleventh Circuit has developed what it refers to as a “categorical approach” for analyzing First Amendment political patronage cases. If the public employee, under the applicable state or local law, is empowered to act as an “alter ego” of the employer, then that public employee is categorically subject to dismissal based solely on his or her political affiliation or loyalty.

All three of the Eleventh Circuit states of Alabama, Florida and Georgia have enacted legislation expressly providing that deputy sheriffs can exercise the same powers exercised by the sheriff in the performance of their job duties. Consequently, with respect to their typical daily duties, sheriff's deputies act as the alter egos of their bosses.

Thus, applying the Eleventh Circuit's categorical approach to patronage dismissals, sheriffs possess the categorical right to fire their predecessor’s deputy sheriffs based on nothing more than the fact or perceived notion that these deputy sheriffs supported the incumbent in the recent political election.

In some cases, the categorical approach provides a clear and easily identifiable standard for both the district courts and public officials to observe. However, that is not always, or even often, the case. Although a Florida sheriff may easily defeat a First Amendment political patronage case brought by one or more deputies, the same sheriff's decision to terminate administrative or clerical staff may have vastly different results. After all, no one could seriously argue that these administrative or clerical employees are empowered by state or local law to act as the sheriff’s alter ego. In such a situation, the analysis reverts to whether the employee’s effectiveness in the position requires political loyalty. If it does, then the adverse employment action is lawful; if not, it is illegal.

In either event, the analysis usually becomes highly fact-sensitive and specific.

Simply stated, political patronage dismissals are a trap for the unwary political official. A patronage-based employment decision that appears to be safe and simple often may engulf, pull down, and even ruin the political careers of unwitting public officials.

As we approach the November elections, this is the time for public sector employers to be wary. Public officials and their appointees continue to be sued for making political patronage dismissals after political elections. Thus, any official or appointee who is considering the option of purging the workplace of people with differing political views and allegiances needs to exercise care. Labor and employment counsel should be consulted beforehand to ensure that the planned changes can be lawfully implemented.

Image Credit: From flickr, Creative Commons license. Photo of Sheriff John Layton (Marion County, Indiana) and McGruff by Steve Baker.