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