dissenting.
I would affirm the judgment of the district court for two discrete reasons. First, summary judgment was the proper disposition since no dispute existed among the parties as to the actual, historical or narrative facts of this case. Second, assuming arguendo that Harold Rosenthal was fired for political reasons, the proscriptions of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), cannot operate in cases such as this, where appellant is clearly a “confidential”, policymaking employee.1
I.
In granting summary judgment, the district court properly treated the issue of whether Rosenthal was a “policymaking” employee as a matter of law. There existed no real dispute as to the historical or narrative facts. Rosenthal held the position of Administrative Assistant to the Director of Commercial and Industrial Relocation for the Redevelopment Authority of Philadelphia. He was hired by his stepsister Lynn Abraham, then Executive Director of the *395Authority, to report to her on the activities of the Commercial and Industrial Relocation Department of the Authority. Appendix at 58a, 112a. Abraham explained that she wanted somebody whom she could “trust” to tell her what was happening in that department, which, according to Abraham, was operating in an allegedly questionable fashion. Id. at 58a. Appellee Sal-vitti described Rosenthal’s hiring as being “for one specific reason, that was to spy on the department for Lynn Abraham.” Id. at 94a.
A.
Behind such emotive linguistic tags as “someone to trust”, or “a spy”, there lies a consensus which belies the majority’s concern that the “conflicting evidence” should have precluded summary judgment: namely, all parties agreed that Rosenthal was hired as Lynn Abraham’s personal investigator. Since there was agreement on what Rosenthal actually did — the “basic” facts— the only remaining question was how to characterize his job. Whether it should be characterized as a policymaking position was not a remaining issue of basic fact, but an issue of ultimate fact, and therefore a matter of law for the court, and not the jury. “The ultimate finding is a conclusion of law or at least a determination of a mixed question of law and fact. It is to be distinguished from the findings of primary, evidentiary or circumstantial facts.” Hel-vering v. Tex-Penn Oil Co., 300 U.S. 481, 491, 57 S.Ct. 569, 574, 81 L.Ed. 755 (1937). Justice Frankfurter’s explanation in Watts v. Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (1949), has particular significance here:
But “issue of fact” is a coat of many colors. It does not cover a conclusion drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights. Such' standards and criteria, measured against the requirements drawn from constitutional provisions, and their proper applications, are issues for this Court’s adjudication . [It is] important to distinguish between issues of fact that are here foreclosed and issues which, though cast in the form of determination of fact, are the very issues to review which this Court sits.
See also United States v. Delerme, 457 F.2d 156 (3d Cir. 1972).
The district court here did not shirk its responsibility in meeting the question of law. Nor should this court.
B.
The Elrod plurality itself provided guidance for discerning the essential character of a job:
No clear line can be drawn between poli-cymaking and nonpolicymaking decisions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. ... An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an advisor or formulates plans for the implementation of broad goals.
427 U.S. at 367-68, 96 S.Ct. at 2687. In the present case, ample information in the record supports the district court’s characterization of Rosenthal’s job as a policymaking one. Along with the undisputed fact that Rosenthal “act(ed) as an advisor” to Abraham, considerations supporting the district court’s ultimate finding include Rosenthal’s exercise of supervisory responsibilities, Appendix at 107a-08a, 119a-21a, 125a; his actions as liaison between two Authority departments, id. at 118a-19a; his recommendations regarding bid acceptances, id. at 118a; and his participation in the revision of the moving and relocation code. Id. at 55a.
*396 II.
An alternate ground for affirming the district court’s judgment lies in the necessary conclusion that even if Rosenthal is not viewed as a “policymaker” within a particular judge’s conception of that term, he was clearly at least a “confidential” employee. As such, his dismissal still falls within the Elrod plurality’s exception, fashioned to insure “that representative government not be undercut by tactics obstructing the implementation of policies of [a] new administration, policies presumably sanctioned by the electorate.” Elrod, supra, 427 U.S. at 367, 96 S.Ct. at 2687.
A.
In Elrod, the Supreme Court addressed a claim that patronage dismissals of non-civil-service employees of the Cook County,. Illinois, Sheriff’s Office, were violative of the First Amendment freedoms of political belief and association. Justice Brennan, in a plurality opinion joined by Justices White and Marshall, concluded that any contribution which political patronage might make to the democratic process was not sufficient to override its encroachment on First Amendment freedoms. As support for this view of patronage, the plurality quoted from CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973): “[T]he judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences.” 427 U.S. at 354, 96 S.Ct. at 2680, quoting Letter Carriers, supra, 413 U.S. at 564, 93 S.Ct. 2880. This statement, however, was used by the Letter Carriers Court for a far different reason — to support the constitutionality of the Hatch Act’s prohibition against federal employees’ taking an active part in political management or political campaigns. It is well to note a passage from Letter Carriers which appears shortly after the plurality’s truncated quotation: “Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.” 413 U.S. at 564, 93 S.Ct. at 2890. In effect, then, the Elrod plurality attempted to extend by case law the application and scope of a statute, the Hatch Act, regulating certain federal employees, to state or county employees not covered by the federal statute. Thus, the ratio decidendi of the Elrod plurality is somewhat tenuous.
Fortunately, five Supreme Court justices (Justices Stewart and Blackmun, concurring; Chief Justice Burger, and Justices Powell and Rehnquist, dissenting) could not ascribe to the Elrod plurality’s broad renunciation of the patronage system, in Justice Stewart’s formulation, a “wide-ranging opinion.” 427 U.S. at 374, 96 S.Ct. 2673. Thus, in concurrence, Justice Stewart articulated the rule of the case: “[A] nonpolicy-making, nonconfidential government employee [cannot] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” 427 U.S. at 375, 96 S.Ct. at 2690 (emphasis added).2
*397B.
Harold Rosenthal was, at the very least, a “confidential” employee. He was hired by his step-sister because she had to find someone whom she “could trust implicitly.” Appendix at 51a. His mission was to investigate a certain department and report directly back to Abraham on its activities. Once Abraham left the Authority, her successor understandably determined that he could not utilize appellant in the same manner.
The majority attempts to limit the thrust of the confidential employee exception by suggesting, in footnote 5, that a confidential employee would not be one “who has covert activities as part of his duties, but instead one who is privy to the discussions and information involved in the policymak-ing process.” Yet the majority admits that the purpose of the Elrod exception is to insure that our system of government “not be undercut by tactics obstructing the implementation of policies of the new administration”. Majority Opinion at 2, quoting Elrod, supra, 427 U.S. at 367, 96 S.Ct. at 2687. Rosenthal was not an integral part of the Commercial and Industrial Relocation Department; rather, he was a personal extension into that department of its administrator, Lynn Abraham. As such, he was privy to the “discussions and information involved in the policy-making process.” When Abraham left the Authority, Rosen-thal no longer had a role to play. His original, confidential function now defunct, he could not implement the policies of the new administration. His presence could only obstruct new policy implementation, the very danger sought to be avoided by the Elrod exception.
Accordingly, there being no role to be played by a factfinder in these proceedings, the basic facts not being disputed, it remained for the court to draw a legal conclusion from those facts. The district court did just that. It faced up to an obligation to decide a question of law. And I would affirm what it did.
. Iam troubled by the lack of support in the discovery materials and affidavits for the allegation that Rosenthal was fired for his political associations, a necessary starting point for the majority’s analysis. Plaintiffs initial complaint did not allege that he lost his job for political reasons. There is no indication in the record that Rosenthal was ever asked to change his party registration or that he was pressured to support a particular political party in order to retain his job. On the other hand, there is evidence that appellee Salvitti fired Rosenthal because Rosenthal was “unqualified” for the job. Appendix at 94a-95a. This situation is factually distinct from Elrod, supra, in which the appellants were fired because of their lack of affiliation with the Democratic party.
The district court, however, granted leave for Rosenthal to file an amended complaint substantiating his claim of abridgement of First Amendment rights of freedom of speech and association. The amended complaint, on its face, elevated this case to a level far exceeding the quality of the proofs offered. Nevertheless, even assuming arguendo that politics played a part in Rosenthal’s dismissal, for reasons discussed hereinafter he cannot prevail.
Nor do I attach critical importance to defense counsel’s failure to contest the allegation in the tenth paragraph of the original complaint that plaintiff was in a non-policymaking position. First, as heretofore observed, plaintiffs initial complaint did not allege that he lost his job for political reasons. Second, what was ultimately before the district court, and what is presently before this court for adjudication, is not the original complaint, but an amended complaint. At the time the amended complaint was filed, the legal issue had been joined, and the parties, both sides, met it on the strength of the depositions, not pleadings. Although I am reluctant to resort to Mechanical Jurisprudence, for it is established that the purpose of the Federal Rules of Civil Procedure was to avoid fact pleading formularies, if I did I would conclude (a) the original answer to the original complaint has minimal jurisprudential significance, because the original complaint was superseded by an amended one, (b) no answer was filed to the amended complaint and therefore no admissions can be drawn from any answer, and (c) as hereinafter developed, I perceive the question of “policy maker” to be one of law, and not of fact, and therefore not subject to any rules relating to admitting facts in pleadings.
. Were I writing on a cleaner slate, I would not even embrace the limitations imposed by the concurrence. Neither the plurality nor the concurrence supplied sufficient rebuttal to Justice Powell’s claim, in dissent, that patronage and the material incentives it provides stimulate “political activity and by strengthening parties, thereby [help] to make government accountable.” 427 U.S. at 382, 96 S.Ct. at 2694. The plurality’s assertion that the abolition of patronage dismissals will not “bring about the demise of party politics” is simply not responsive to the question of accountability in government.
Acknowledging that abuses may inhere in the patronage system, I nevertheless am not prepared to conclude that there has been a corresponding increase in the quality of city, county, state and federal services since the wholesale .granting of permanent tenure to government employees, by civil service legislation, and now by judicial fiat, began. My own experience is that municipal streets seem dirtier; police protection less efficient; highway *397maintenance virtually non-existent (in my own state of Pennsylvania); postal service a national disgrace; metropolitan garbage collection a matter of grace, not right; refuse collection a matter of private contract; and a constantly increasing headless federal civil service bureaucracy approaching the cruel, impersonal inefficiency of that of the French. Accountability to elected officials, and thus to the public, seems to be an historical concept only. Edward N. Costikyan suggests:
[A]ll the histories of the political machines and their workings have been written from a reform orientation. It should be observed, however, in the absence of fairer contemporaneous data, that the political machines built the cities, paved their streets, dug their sewers, and piped their water supply systems. Furthermore, under the administration of the machines, mass transit systems, school systems, and massive developments of new housing were constructed.
It would be laughable to suggest that any of our present city administrations could accomplish one-tenth of what the political machines accomplished during the period from the Civil War to World War I.
The reform answer to the machine as the personnel pool for government was the creation of a competing source of manpower: civil service. As long as civil service and the machine remained in competition for the staffing of the government, the administrative result was good. But with the collapse of the machine, civil service has monopolized the field, and the administrative results have been disastrous, for the bureaucracies have a double layer of protection that deprives any elected official of the power to get the bureaucrats to do their jobs. One layer is the impossibility of firing a civil servant. The other is the civil service unions, which have such power over the city — in the absence of alternative sources of manpower — that in the final analysis the bureaucracies are in a position to dictate to elected officials and their appointees. The bureaucrats can specify what they will and will not do (such as inspect boilers during a cold wave), what they will wear, and where they will work. The elected official (or his appointee) is at their mercy.
Our cities will survive and be governable only if those we elect have effective power over those who are supposed to do the work, [and] only if those we elect are responsible and accountable to the people who elect them. . . .
Costikyan, “Cities Can Work”, Saturday Review, April 4, 1970, 19, 20, 39.