Ortiz-Pinero v. Rivera-Arroyo

June 6, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2167

WILLIE VICTOR ORTIZ-PI ERO,

Plaintiff, Appellant,

v.

VICTOR RIVERA-ARROYO,
INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,

Defendants, Appellees.

ERRATA SHEET

The opinion of this Court issued on May 15, 1996, is amended as
follows:

Cover page: Change "[Hon. Hector M. Laffitte, U.S. District

Judge" to "Hon. Jaime Pieras, Jr., Senior U.S. District Judge"

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2167

WILLIE VICTOR ORTIZ-PI ERO,

Plaintiff, Appellant,

v.

VICTOR RIVERA-ARROYO,
INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Cyr, Circuit Judge.

Carlos A. Del Valle Cruz for appellant.

Elisa Bobonis Lang, with whom Jos R. Gaztambide and Gaztambide &

Plaza were on brief for appellees.

May 15, 1996

2

3

CYR, Circuit Judge. Plaintiff Willie Victor Ortiz
CYR, Circuit Judge.

Pinero ("Ortiz") appeals from a district court judgment dismiss-

ing his political discrimination claims against the City of

Gurabo, Puerto Rico, and its incumbent Mayor. We affirm.

I
I

BACKGROUND
BACKGROUND

In 1981, the City of Gurabo enacted an ordinance,

pursuant to P.R. Laws Ann. tit. 3, 1351, designating eleven

municipal offices as positions of "trust" or "confidentiality,"

including the directorship of the Office of Federal Programs

("OFP"), the municipal agency charged with obtaining and adminis-

tering federal funding for various public works projects. See

Municipal Ordinance No. 3, Series 1981-82 (Sept. 14, 1981).

In August 1991, then-Mayor Ramon Garcia Caraballo

appointed Ortiz, a fellow member of the Popular Democratic Party

(PDP), as OFP Director, and allegedly described the position to

Ortiz as a non-"confidence" position. Mayor Caraballo later

extended Ortiz' appointment through August 1993. In November

1992, however, after the PDP mayoral candidate was rejected by

the electorate, outgoing Mayor Caraballo notified Ortiz that he

should resign forthwith because the OFP directorship was a

"confidential" position which the new administration was entitled

to fill. Ortiz refused to resign. Thereafter, the incoming New

Progressive Party (NPP) mayor, defendant-appellee Willie Victor

Rivera Arroyo ("Rivera"), dismissed Ortiz.

In due course, Ortiz initiated the present action for

4

damages and reinstatement under 42 U.S.C. 1983 against the City

of Gurabo and Mayor Rivera, claiming political discrimination and

deprivation of his property interest in continued employment

without the benefit of a pretermination hearing, in violation of

the First and Fourteenth Amendments to the United States Consti-

tution. The defendants moved for summary judgment on the ground

that the OFP directorship is a "trust" position for which compat-

ible political affiliation constitutes a legitimate qualifi-

cation. See Branti v. Finkel, 445 U.S. 507 (1980); Elrod v.

Burns, 427 U.S. 347 (1976). Their motion was accompanied by a

written "certification" from the City personnel office defining

the responsibilities of the OFP directorship.1 After determin-

ing that the evidence compelled a finding that the OFP director-

ship is a trust position, the district court granted summary

judgment for defendants on all claims. Ortiz-Pinero v. Rivera-

Acevedo, 900 F. Supp. 574 (D.P.R. 1995).

II
II

DISCUSSION
DISCUSSION

A. Standard of Review
A. Standard of Review

We review de novo, to determine whether the pleadings,

1The certification lists five responsibilities: (1) "[t]o
direct, coordinate and supervise all the operations of the
Federal Programs Office"; (2) "[t]o see to the compliance and
good functioning of said Office"; (3) "[t]o submit all the
corresponding reports to the Municipal Services Administration
Program, the State Agency delegated upon by the C.D.G.B. Pro-
gram"; (4) "[t]o take part in seminars and training that are
offered on the Federal Programs as well as to accompany the Mayor
in all matters concerning the Program"; and (5) "[t]o perform
other similar duties as assigned."

5

depositions, answers to interrogatories, and admissions on file,

together with any affidavits, show that there is no genuine issue

as to any material fact and that the moving party is entitled to

judgment as a matter of law. See O'Connor v. Steeves, 994 F.2d

905, 906-07 (1st Cir.), cert. denied, 114 S. Ct. 634 (1993).

Although all competent evidence and reasonable inferences are

viewed in the light most favorable to Ortiz, he cannot carry the

day on mere "`conclusory allegations, improbable inferences, and

unsupported speculation.'" Id. (quoting Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).

B. First Amendment Claim
B. First Amendment Claim

1. Applicable Law
1. Applicable Law

In a political discrimination case, the plaintiff first

must show that party affiliation was a substantial or motivating

factor for the challenged action. See Mount Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Jirau-

Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir. 1994).2 The burden

then shifts to defendants to establish either a nondiscriminatory

reason for the dismissal, see Ferrer v. Zayas, 914 F.2d 309, 311

(1st Cir. 1990), or that plaintiff held a "political" position

for which party affiliation constituted an appropriate qualifica-

tion for continued employment, see Branti, 445 U.S. at 518; De

Choudens v. Government Dev. Bank of P.R., 801 F.2d 5, 8 (1st Cir.

1986), cert. denied, 481 U.S. 1013 (1987). Thus, the Branti/-

2We assume, without deciding, that there is sufficient
competent evidence that political affiliation motivated the
dismissal.

6

Elrod defense is designed to ensure that "representative govern-

ment not be undercut by tactics obstructing the implementation of

policies of the new administration, policies presumably sanc-

tioned by the electorate." Elrod, 427 U.S. at 367.

Whether a government position is "political" does not

depend upon such loose-fitting labels as "confidential" or

"policymaking," but on the substance of the duties inherent in

the position itself. Branti, 445 U.S. at 518 (noting: "a

position may be appropriately considered political even though it

is neither confidential nor policymaking in character," and, by

the same token, party affiliation is not a relevant consideration

for all policymaking or confidential positions); see Romero

Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir. 1987)

(abjuring reliance on "rigid labels" in Branti/Elrod analysis).

We employ a two-part inquiry to identify "political"

positions under the Branti/Elrod analysis:

First, we inquire whether the overall func-
tions of the employee's department or agency
involve "decision making on issues where
there is room for political disagreement on
goals or their implementation." Second, we
decide whether the particular responsibili-
ties of the plaintiff's position, within the
department or agency, resemble those of "a
policymaker, privy to confidential informa-
tion, a communicator, or some other office
holder whose function is such that party
affiliation is an equally appropriate re-
quirement" for continued tenure. Among the
indicia material to the second element are
"`relative pay, technical competence, power
to control others, authority to speak in the
name of policymakers, public perception,
influence on programs, contact with elected
officials, and responsiveness to partisan
politics and political leaders.'"

7

O'Connor, 994 F.2d at 910 (quoting Jimenez Fuentes v. Torres

Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert.

denied, 481 U.S. 1014 (1987)) (other citations omitted).

Although obviously fact-intensive, the ultimate deter-

mination whether a government position is "political" presents a

question of law for the court, rather than an issue of fact for

jury resolution. See McGurrin Ehrhard v. Connolly, 867 F.2d 92,

93 (1st Cir. 1989) (Breyer, J.) (noting that the "important

constitutional and governmental interests surrounding the appli-

cation of the [Branti/Elrod] exception" make it more suitable for

determination by the court). Examining all competent evidence in

the light most favorable to Ortiz, we conduct a de novo assess-

ment of the relevant factors, see In re Howard, 996 F.2d 1320,

1327 (1st Cir. 1993) (plenary appellate review generally accorded

issues of law), and "make a common sense judgment in light of the

fundamental purpose to be served [by the Branti/Elrod analysis]."

Jimenez Fuentes, 807 F.2d at 242.

2. The OFP and "Partisan Political Interests"
2. The OFP and "Partisan Political Interests"

The OFP is charged with marshaling and administering

the million or so dollars obtained annually from federal agen-

cies, and with doling it out for various public works projects

within the municipality. Thus, the OFP unmistakably is a munici-

pal "department or agency [whose overall functions] involve

`decision making on issues where there is room for political

disagreement on goals or their implementation.'" O'Connor, 994

F.2d at 910 (citations omitted). Indeed, its inherent responsi-

8

bilities inevitably entail the kinds of discretionary decisions

traditionally associated with municipal politics.3 Accordingly,

we conclude that defendants met the first-prong test under

Jimenez Fuentes.4

3. The Duties Inherent in the OFP Directorship
3. The Duties Inherent in the OFP Directorship

Under the second prong, we examine any evidence the

defendants may have adduced that "the particular responsibilities

3See id. (noting that the first prong of the Jimenez Fuentes

test was readily met where the municipal department for which
plaintiff worked was responsible for developing and implementing
public works programs, since "[e]lections often turn on the
success or failure of the incumbent [administration] to provide
these services"); Jimenez Fuentes, 807 F.2d at 242 (finding that

regional director of commonwealth housing department, charged
with ameliorating housing conditions among low and middle income
families, was a position "relate[d] to partisan political inter-
ests"); accord Juarbe-Angueira v. Arias, 831 F.2d 11, 15 (1st

Cir. 1987) ("Where, how, and when the government will repair or
reconstruct public buildings, . . . when and where money is to be
spent, may well be a matter of considerable interest to . . .
political leaders."), cert. denied, 485 U.S. 960 (1988); Mendez-

Palou v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir. 1987)

(finding Administration for Environmental Quality Board engaged
in a "politically-sensitive mission" for purposes of Branti/Elrod

analysis).

4Ortiz also contends that the first prong of the Jimenez

Fuentes test should focus upon the City as the pertinent "depart-

ment or agency," not on the OFP. Ortiz does not contend that
this shift in focus would alter the first-prong inquiry itself,
since under either scenario the City or the OFP would have to
undertake the politically sensitive mission of allocating federal
funds among various constituencies within the municipality. He
argues, instead, that the shift in focus could affect the inquiry
under prong two, see infra Section II.B.3(b), since Ortiz could

then be viewed as a subordinate City official rather than the
head of the first-prong "department or agency" (i.e., the OFP).

Be that as it may, the attempt to distance Ortiz from political
decisionmaking not only distorts the function of the second-prong
inquiry under Jimenez Fuentes, but runs counter to our precedent

in O'Connor, where we focused the inquiry under prong one upon

the municipal department of public works, rather than the munici-

pality. See O'Connor, 994 F.2d at 907-08; supra note 3.

9

of the plaintiff's position, within the [OFP], resemble those of

`a policymaker, privy to confidential information, a communica-

tor, or some other office holder whose function is such that

party affiliation is an equally appropriate requirement' for

continued tenure." O'Connor, 994 F.2d at 910 (citations omitted)

(emphasis added).

a) Lack of Written Job Description
a) Lack of Written Job Description

Ortiz first argues that summary judgment is precluded

because the City of Gurabo has no official, written job descrip-

tion (a.k.a. Form OP-16) for its OFP Director, nor indeed for any

of its municipal employees. He relies upon cases in which we

have held that courts should determine the duties inherent in a

particular position by examining the governmental entity's

written, signed job descriptions, rather than the duties actually

performed by the plaintiff or prior occupants of the position in

question. See, e.g., Mendez-Palou v. Rohena-Betancourt, 813 F.2d

1255, 1260 (1st Cir. 1987). Ortiz would have us conclude that

the absence of any written job description, combined with con-

flicting circumstantial evidence as to the duties performed by

the OFP director, leaves unresolved issues of material fact which

preclude summary judgment. See Romero Feliciano, 836 F.2d at 3

("[W]e have considered the OP-16 dispositive in other Puerto Rico

political discrimination cases . . . ."). In so doing, Ortiz

misconstrues our precedents and the nature of the issue under

consideration.

Although written, signed job descriptions may provide

10

highly probative evidence as to the responsibilities inherent in

a particular government position, and may even prove "disposi-

tive," see id. at 3, we have never suggested that their absence

is dispositive, cf. Mendez-Palou, 813 F.2d at 1260 ("Whenever

possible, we will rely upon this document because it contains

precisely the information we need . . . .") (emphasis added), or

precludes a defendant from resorting to other evidence, see,

e.g., Romero Feliciano, 836 F.2d at 3 (noting that defendant "may

present additional evidence at trial" besides the disputed OP-

16). Nor does the absence of a written, signed job description

preclude summary judgment, so long as defendants adduce other

competent evidence as to the responsibilities inherent in the OFP

directorship from which the "political" nature of the position

can be determined as a matter of law, see McGurrin Ehrhard, 867

F.2d at 93 (ultimately, the Branti/Elrod defense poses a question

of law), even though some nonessential facts may remain in

dispute. See Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1117

n.5 (1st Cir. 1989).5

b) The Responsibilities Inherent in the Position
b) The Responsibilities Inherent in the Position

Ortiz contends that the district court incorrectly

5The district court relied on the lack of a written job
description as probative evidence that the OFP directorship is a

"political" position. Ortiz-Pinero, 900 F. Supp. at 580 (citing

Mendez-Palou, 813 F.2d at 1262-63 ("`[A]n employee with responsi-

bilities that are not well defined or are of broad scope more
likely functions in a policymaking position.'") (citing Elrod,

427 U.S. at 368)). But since the City had adopted no job de-
scription for any position, cf. supra note 1, and it obviously

could not reasonably be inferred on that basis that all City
positions are "political," we give no weight to such an inference
in the present context.

11

assessed the record evidence relating to the duties inherent in

the OFP directorship. He claims that he administered the OFP in

a politically-neutral fashion and took no meaningful part in

mayoral "policymaking" or "political" decisions concerning

federal funding allocations among the various constituencies

within the municipality.

As previously noted, probative indicia that a position

is "political" include "`relative pay, technical competence,

power to control others, authority to speak in the name of

policymakers, public perception, influence on programs, contact

with elected officials, and responsiveness to partisan politics

and political leaders.'" O'Connor, 994 F.2d at 910 (citations

omitted). Defendants adduced evidence that Ortiz had not had to

compete with other candidates for the OFP directorship. More-

over, Ortiz concedes that he was no "expert" in the financial and

accounting aspects of the OFP's responsibilities. Thus, we think

the evidence does not support a fair inference that Ortiz was

selected for his managerial or technical expertise. Moreover,

Ortiz' prominent PDP affiliation, see Ortiz Deposition at 179-81

(acknowledging that, at various times, he was a "political

activist," electoral commissioner, and campaign finance director

for the PDP and PDP candidates), plainly permits a fair inference

that he was selected for the OFP directorship based on his

"political" service and talents. See McGurrin Ehrhard, 867 F.2d

at 93 (finding position "political" where plaintiff, formerly a

clerical employee, was tapped for position as director of secre-

12

tary of state's regional office, after having worked on Secre-

tary's state senate campaign, and where Secretary "did not

advertise the job, solicit applications, or . . . consider any

[other] applicant").

More importantly, Ortiz was appointed to head the OFP,

whose overall functions clearly involved "`decision making on

issues where there is room for political disagreement on goals or

their implementation,'" under the first prong of the Jimenez

Fuentes test. See supra Section II.B.2.6 By his own account,

Ortiz was in complete charge of the OFP staff,7 as well as the

applications for, and the administering of, all federal grant and

loan programs involving the City, amounting to approximately one-

6See, e.g., O'Connor, 994 F.2d at 911 ("[W]hatever difficul-

ties we might face in applying the second prong of the Jimenez

Fuentes test to subordinate positions within the Department, the

Superintendent's 'inherent responsibilities' . . . plainly '"had
a bearing on the partisan goals and policies"' of the Department
as a whole.") (citations omitted); De Choudens, 801 F.2d at 9-10

(noting that it would have been much more likely that the posi-
tion would be considered "political" had plaintiff been president

of the bank, rather than senior vice-president); cf. Juarbe-

Angueira, 831 F.2d at 15 (finding it not "clearly established"

that regional directorship of public building authority was other
than a "political" position, even though it involved only a
"'modicum' of 'policymaking responsibility,'" given that supervi-
sory position was "moderately-high-level position within the
agency").

7Ortiz points out that he supervised an OFP staff of only
four persons (accountant, secretary, and two clerks). As we have
noted, however, the relative staff size, not its absolute size,

affords the more illuminating insight. See, e.g., O'Connor, 994

F.2d at 911 n.3 (noting that, on per-capita basis, plaintiff's
supervision of smaller municipality-level staff may be equivalent
to supervision of much bigger staff in a larger municipality);
McGurrin Ehrhard, 867 F.2d at 95 (finding position "political"

even though plaintiff supervised four-person regional office,
where satellite branch was but one of two such offices in Massa-
chusetts).

13

third of its municipal budget. See Ortiz Deposition, at 29-30.8

Ortiz reported directly to the mayor, rather than

through intermediaries, meeting with him on an average of six or

seven times a year. Cf. Mendez-Palou, 813 F.2d at 1260 (noting

that plaintiff performed duties with "only general instructions

and superficial supervision" from the administration). He served

as the mayor's "eyes" and "ears," periodically visiting public

work projects and reporting back to the mayor on their progress.

See McGurrin Ehrhard, 867 F.2d at 95 (noting that employee who

acted as "eyes and ears" for secretary of state engaged in an

"overtly political task[]").9 Such first-person (thus, more

subjective) field assessments often influence policy formulation,

and policymaking influence, even though indirect, is an important

8We reject the contention that the April 1993 certification
of duties issued by the City personnel department, see supra note

1, is without any probative force because it is unsigned and was
not prepared until after Ortiz left office. Of course, an OP-16
signed by the employee has added probative value since it consti-
tutes the employee's contemporaneous "admission" concerning the
duties inherent in the position. But it does not follow that the
unsigned certificate, by which the City prospectively commits
itself to its description of the duties inherent in the OFP
directorship, is without probative weight. Although we have
noted that an unsigned OP-16 may leave a factual dispute as to
its authenticity, see Romero Feliciano, 836 F.2d at 3-4, Ortiz

asserts no challenge either to the authenticity or the validity
of the certification. Nor did we suggest in Romero Feliciano

that such evidence should be completely discounted in a trial on
the merits.

9See Jimenez Fuentes, 807 F.2d at 246 (noting that "politi-

cal" position holders, like directors, "monitor the progress of
the agency's programs and thus gauge the success of the Admini-
stration's . . . policies"); cf. Mendez-Palou, 813 F.2d at 1260

(finding it relevant that plaintiff "represents the President in
activities . . . [and gives] top level counselling [to] the
President").

14

indicium of "political" positions.10

Ortiz admittedly received and reviewed copies of

federal audits and oversight reports, including the Federal

Transit Administration's Triennial Review of the City's federally

funded transit program, which identified areas where the City was

not in compliance. See Defendant's Exh. 6; see also 49 U.S.C.

5307(i) (2). This politically-sensitive report is precisely the

type of document whose contents are not likely to be shared

freely with any but the mayor's trusted political confidants for

fear it might become fodder for the political opposition. Cf.

Mendez-Palou, 813 F.2d at 1262-63 ("[W]e believe that an official

working in close contact with the head of a government agency is

also more likely to be privy to a substantial amount of confiden-

tial information. . . .").

Finally, Municipal Ordinance No. 3, enacted in 1981

pursuant to P.R. Laws Ann. tit. 3, 1351, designates only eleven

municipal offices as positions of "trust" or "confidentiality,"

including the Director of the Office of Federal Programs.11

10See McGurrin Ehrhard, 867 F.2d at 94 (noting that plain-

tiff did not have "final authority to hire or fire employees,
[but] she had 'input'"); Jimenez Fuentes, 807 F.2d at 245 ("That

Regional Directors do not have final decision-making authority is
not determinative . . . . 'because such positions [i.e., direc-
torships] are a natural source of influential recommendations of
changes in policy.'") (citation omitted).

11Section 1351 of the Personnel Act provides, in pertinent
part:

1. Each [commonwealth] agency shall present
for approval of the [Central] Office [of
Personnel Administration] a plan containing
the confidential positions by which it de-

15

Consistent with the ordinance, former Mayor Caraballo notified

Ortiz in writing on December 24, 1992, that he was among the

eleven municipal officials who must resign to make way for the

incoming NPP administration.

Against this formidable array, Ortiz offers five

arguments. First, he contends that Municipal Ordinance No. 3 is

a nullity because the defendants have not shown that it was duly

submitted to the Central Office of Personnel Administration for

approval, as supposedly required by the Personnel Act. But see

supra note 11. This claim is unavailing.

On its face, the ordinance reflects that it had been

submitted to the Central Office of Personnel Administration

("Central Office") for review. See Municipal Ordinance No. 3,

3. Thus, the burden lay with Ortiz to show that the City did not

comply with the statutory requirements,12 and he proffered no

sires to operate. In the case of municipali-
ties, the Municipal Assembly shall follow the
ordinance or resolution approving the plan
submitted by the mayor and shall send it to
the Office for the sole purpose of ascertain-

ing that the provisions of section 1350 of

this title have been complied with.

P.R. Laws Ann. tit. 3, 1351 (emphasis added).

12We recognize that the burden of proof normally shifts to
the governmental entity to establish that the substantive re-

quirements of its enactment comport with the First Amendment.
But we have found no authority, nor can we discern any sound
reason, for shifting the burden of proof where the challenging
party alleges only procedural irregularities of nonconstitutional

dimension in an ordinance-enactment process. See, e.g., Friends

of the City Market v. Old Town Redev. Corp., 714 S.W.2d 569, 575

(Mo. Ct. App. 1986) ("Ordinances are presumed to have been
adopted in accordance with the requirements of the law . . . .").

16

evidence that the ordinance was not duly submitted to the Central

Office. See O'Connor, 994 F.2d at 906-07 (noting that summary

judgment opponent must proffer more than "'conclusory allega-

tions, improbable inferences, and unsupported speculation'")

(citation omitted). In all events, the statutory language does

not purport to make submission to the Central Office a prerequi-

site to the validity of Municipal Ordinance No. 3. Rather, the

requirement of post-enactment compliance "review" by the Central

Office, in relation to a municipal ordinance, stands in sharp

contrast to the heightened obligation of Commonwealth agencies to

seek Central Office approval. See P.R. Laws Ann. tit. 3, 1351

(mayor's "plan" to be submitted to Central Office "for the sole

purpose of ascertaining that the provisions of section 1350 of

this title have been complied with"). See Appendix A for text of

1350.

Second, Ortiz correctly notes that state laws identify-

ing government positions as "trust" or "confidential" are not

dispositive of the federal-law question whether a particular

position is "political." See Jimenez Fuentes, 807 F.2d at 243

n.9. On the other hand, we have explained that state laws and

municipal ordinances designating positions as "trust" or "confi-

dential" like P.R. Laws Ann. tit. 3, 1351, and Municipal

Ordinance No. 3 are entitled to "some deference" under the

Branti/Elrod formula, see Jimenez Fuentes, 807 F.2d at 246;

accord Juarbe-Angueira, 831 F.2d at 14, especially where other

evidence clearly points in the same direction.

17

Third, Ortiz attempts to estop defendants from assert-

ing a Branti/Elrod defense by pointing to the putative assurance

made to him by Mayor Caraballo in August 1991, that the OFP

directorship was not a "trust" position, see supra p.2. Even

this evidence is not hefty enough to ward off summary judgment,

however.13

For one thing, application of the equitable estoppel

doctrine against governmental entities, including municipalities,

is narrowly circumscribed. See Heckler v. Community Health

Servs. of Crawford County, 467 U.S. 51, 60-62 (1984). Moreover,

any attempt to interpose estoppel as a bar to the Branti/Elrod

defense must fail, since reliance on the Caraballo representation

would not have been objectively reasonable in the circumstances.

See United States v. Javier Angueira, 951 F.2d 12, 16 (1st Cir.

1991) (noting that even if estoppel is available against govern-

mental entity, "`the party raising the [estoppel] defense must

have reasonably relied on some "affirmative misconduct" attribut-

able to the sovereign.'") (citations omitted); A.E. Alie & Sons

v. United States Postal Serv., 897 F.2d 591, 593 (1st Cir. 1990)

(same).

13We note, as a threshold matter, that its admissibility is
far from clear. See Fed. R. Civ. P. 56(e). Even assuming that

former Mayor Caraballo could bind the City by his representa-
tions, see Fed. R. Evid. 801 (permitting "admissions" of party-

opponent), it is extremely problematic whether the successor

mayor, defendant Rivera, can be bound, especially since the very
nature of the 1983 claim made by Ortiz appears to preclude any
characterization of former Mayor Caraballo as a party "opponent."
As this evidence is otherwise deficient, however, we need not
determine its competence at this time.

18

Immediately prior to his appointment to the OFP direc-

torship, Ortiz, concededly a "political activist," served for

three years as City assemblyman, a position which would have

brought all City ordinances within his constructive knowledge.

See Texaco, Inc. v. Short, 454 U.S. 516, 531 n.25 (1982) (noting

that all persons are charged with knowledge of the provisions of

duly enacted statutes/ordinances); Deibler v. City of Rehoboth

Beach, 790 F.2d 328, 331 (3d Cir. 1986) (same); cf. Good v.

Dauphin County Social Servs. for Children and Youth, 891 F.2d

1087, 1091 (3d Cir. 1989) (reasonably competent government

officials should know laws governing their conduct). Similarly,

Ortiz admitted to having served for four years in a previous

"trust" position, as Regional Director of the Administracion de

Derecho al Trabajo, making it highly unlikely that he was not on

actual notice of P.R. Laws Ann. tit. 3, 1351, or of the fact

that municipalities were required to designate certain "trust"

positions by ordinance.

Fourth, without citing either authority or a policy

rationale, Ortiz argues that the OFP directorship cannot be

considered a "political" position since there is no requirement

that the municipal assembly approve the mayor's selection for the

post. We think this far too thin a reed to warrant rejection of

the traditional Branti/Elrod criteria. Many "political" appoint-

ments (e.g., to the executive staff of a governor or mayor) are

not subject to legislative approval, a requirement which corre-

lates more closely to the issue of political accountability in

19

the legislative branch, than to the partisan political attributes

of an executive position.

Finally, Ortiz insists that the OFP directorship duties

actually performed by him under Mayor Caraballo were merely

administrative and technical, that Caraballo alone decided how

federal funds were to be spent, and that Ortiz merely informed

the mayor regarding the administrative status of federal funding

applications. These claims are insufficient to overcome the

well-supported legal determination, see supra pp. 9-14, that the

OFP directorship is a "political" position. At most, Ortiz'

contrary characterizations, fully credited, establish the servic-

es actually rendered by Ortiz while he served as the director, as

distinguished from the responsibilities inherent in the position

itself. Cf. Mendez-Palou, 813 F.2d at 1258 (actual duties not as

probative as inherent duties). As the ultimate issue presented

is one of law, rather than fact, McGurrin Ehrhard, 867 F.2d at

93, summary judgment was warranted on the political discrimina-

tion claim.

C. Due Process Claim
C. Due Process Claim

Ortiz advances essentially the same arguments as

support for the due process claim: that he had a legitimate

expectation of continued employment under commonwealth law, which

gave rise to a "property right" entitling him to a pretermination

hearing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

(1985). The pretermination process due a government employee is

a matter of federal law, see Rivera-Flores v. Puerto Rico Tel.

20

Co., 64 F.3d 742, 749 (1st Cir. 1995), whereas the preliminary

question whether a government employee possessed a protectable

"property right," or a legitimate expectation of continued

employment, is controlled by the employment contract or state

law. See id.

Since Ortiz' employment contract included a clause

permitting his unilateral, unconditional termination by the mayor

at any time, commonwealth or local law would be the only possible

basis for an actionable claim to continued employment. Accord-

ingly, Municipal Ordinance No. 3 is dispositive of the due

process claim, since it designates the OFP directorship as a

"confidential" position, pursuant to P.R. Laws Ann. tit. 3,

1351. The Personnel Act in turn defines "confidential" appoint-

ees as, inter alios, "those who intervene or collaborate substan-

tially in the formulation of public policy, who advise directly

or render direct services to the head of the agency," and are

subject to "free selection and removal." Id. 1350. Thus, Ortiz

had neither a property right nor a contract right to continued

employment as OFP Director, and defendant-appellee Rivera was

under no constitutional obligation to afford him a pretermination

hearing.

III
III

CONCLUSION
CONCLUSION

The claims for damages are barred under the doctrine of

qualified immunity, because Ortiz failed to demonstrate that it

was "clearly established" that the OFP directorship was not a

21

"political" position. See Mendez-Palou, 813 F.2d at 1259-60.

Furthermore, since we conclude as a matter of law that the OFP

directorship was indeed a "political" position, the claims for

damages and reinstatement are foreclosed on the merits. Finally,

the due-process claim fails because Ortiz possessed no right to,

or reasonable expectation of, continued employment as OFP direc-

tor.

The judgment is affirmed; costs to appellees.
The judgment is affirmed; costs to appellees.

22

Appendix A

LAWS OF PUERTO RICO ANNOTATED
TITLE THREE. EXECUTIVE
CHAPTER 51. PUBLIC SERVICE PERSONNEL
SUBCHAPTER V. PERSONNEL ADMINISTRATION SYSTEM; STRUCTURE

1350. Confidential employees

Confidential employees are those who intervene or collabo-
rate substantially in the formulation of the public policy, who
advise directly or render direct services to the head of the
agency, such as:
(1) Officers appointed by the Governor, their personal
secretaries and drivers; as well as their executive and adminis-
trative assistants who answer directly to them.
(2) Heads of agencies, their personal secretaries and
drivers; as well as their executive and administrative assistants
who answer directly to them.
(3) Assistant heads of agencies and their personal secretar-
ies and drivers.
(4) Regional directors of agencies.
(5) Personal secretaries and drivers of officials selected
by popular election, as well as their assistants who answer
directly to them.
(6) Members of boards or standing committees appointed by
the Governor and their respective personal secretaries.
(7) Members and personnel of boards or commissions appointed
by the Governor having a specific period of effectiveness.
(8) Personnel of the offices of the Puerto Rico Ex-Govern-
ors.
Confidential employees shall be of free selection and
removal. Likewise confidential shall be those employees who
though of free selection may be removed only for good cause by
provision of law or those whose appointment is for a term pre--
fixed by law.
Every regular employee in a career position who is appointed
to a confidential position shall be entitled to be reinstated in
a position equal or similar to the last one he held in the career
service.

i