Jimmie McBee v. Jim Hogg County, Texas and Gilbert Ybanez, Javier Alfonso Hinojosa v. Jim Hogg County, Texas

GEE, Circuit Judge:

Today we consider what constitutional restraints burden the freedom of a local elected official to reappoint subordinates of his defeated opponent — or to decline to do so.

Facts and State Law

We reiterate only such facts, set out at length in the panel opinion,1 as are necessary to an understanding of our resolution of the issue.

In Jim Hogg County, lying in rural South Texas and boasting a population of less than 6,000, nomination in the Democratic primary is tantamount to election to local office. Just over three years ago, Gilbert Ybanez embarked on his statutory four-year term as duly elected sheriff there. Although he offered to reappoint some of his predecessor’s employees to positions in his administration, he made no such offer to the five plaintiff-appellant deputy sheriffs.2 Instead, he followed the established custom in the county of making place for his own political supporters at the expense of Deputies Contreras, Hinojosa, Serna and Spencer, the first three of whom actively supported his predecessor’s primary campaign against Ybanez. He withdrew an unaccepted offer to retain Deputy McBee in a lesser position than that she had held under his predecessor after she complained to county authorities about the “unfairness” of Ybanez’s actions toward her former colleagues. This civil rights action followed.

Procedural History

The trial court, concluding that the Supreme Court decisions in Elrod3 and Bran-ti 4 applied as fully to public employment decisions based on personal support of an individual Democrat as to those based on party affiliation, determined that Ybanez’s attempted justifications for failing to reappoint Contreras, Hinojosa and Serna were pretextual afterthoughts offered to justify his actions based on patronage.5 It further concluded that, under Branti, the next relevant inquiry was whether political loyalty to Ybanez had been shown by him to be an appropriate qualification for the office of deputy sheriff, finding that it had not. As to Mrs. McBee, the court determined that *1011she had been discharged for her protected expressions on a question of public interest: the wholesale release of former employees for political reasons. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). So holding, the court granted substantial relief to all plaintiffs. On appeal, a panel of our court reversed, holding that the close working relations and mutual confidence demanded by service in such a small county office placed the four discharged deputies within an exception to Elrod/Branti, that the trial court’s holdings as to the reasons for their discharge were clearly erroneous, and that the protests of Mrs. McBee to higher authority were so destructive of the close working relationship with the sheriff necessary to satisfactory performance of her job as to be unprotected. For reasons to be stated, some grounded in authority unavailable to the trial court or our panel, we vacate and remand.

Supreme Court Authority

Building on earlier decisions that forbade limiting constitutional rights as a condition of awarding a governmental benefit,6 a plurality of the Supreme Court addressed the specific issue of patronage discharges of public employees in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a “wide-ranging opinion.” Id. at 374, 96 S.Ct. at 2690 (Stewart, J., specially concurring). Justices Stewart and Blackmun — necessary votes in support of the judgment — joined only because, in their stated view, a “nonpolicymaking, non-confidential governmental employee [cannot] be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Ibid. This prohibition, absolute in tone, was supported only by citation to Justice Stewart’s opinion for the Court in Perry, which likewise speaks in unqualified terms.7 To be sure, the Elrod plurality paid its respects to the notion that “the prohibition on encroachment of First Amendment protections is not an absolute.” 427 U.S. at 360, 96 S.Ct. at 2683. When it came to stating the terms upon which such encroachments would be condoned in the context of public employment, however, its language was such that the reader might have been pardoned for concluding that he stood in the presence of a creature more rare even than the ordinary, garden-variety, compelling state interest:

In short, if conditioning the retention of public employment on the employee’s support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.

427 U.S. at 363, 96 S.Ct. at 2685.

In the face of such language, taken together with that of Justice Stewart’s special concurrence, many courts took the Elrod prohibition to be virtually absolute,8 inquiring only whether a public employee’s “exercise of his speech rights was a signifi*1012cant basis for his discharge.” Stapp v. Avoyelles Parish School Board, 545 F.2d 527, 534 (5th Cir.1977).

But if lower courts were perhaps justified in taking the foregoing exception to Elrod’s rule with a grain of salt, another of a more practical nature was stated by the plurality opinion: that for policymaking employees. The language employed here makes plain that it is to be taken seriously:

A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.

427 U.S. at 367, 96 S.Ct. at 2687. And so, as to Court authority directly significant for present purposes, the matter rested until 1980, when Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574, was handed down.

While Elrod concerned Republicans purged from a large, metropolitan sheriff’s office merely because of their national political affiliation, Branti v. Finkel comes closer home in some respects to our present concerns. Finkel and a colleague, Tabakman, were two of nine assistant public defenders to be purged (as Republicans), although competent workers, to make place for Democrats by the Fathers of a suburban New York county. Upholding an injunction against the proposed purge, the Court — this time by 6-3 majority — cast further light on its Elrod rule and narrowed the “policymaking” exception to it.

In the course of rejecting a contention that Elrod prohibits only dismissals resulting from an employee’s refusal to submit to a demand to change his political affiliation, Justice Stevens appeared to narrow the Elrod rule significantly. The first and more important of these articulations, for today’s purposes, is the injection at two points into the Court’s statement of the Elrod rule of the adjective “private” as modifying “political beliefs” 445 U.S. at 515, 517, 100 S.Ct. at 1293, 1294. Since whether or not the beliefs of the Elrod plaintiffs were private or public that opinion does not say, we can only read this restatement of the rule there laid down as a significant limitation upon it.9

In addition to articulating the Elrod rule in a narrower form, the Branti court restated and narrowed the significant exception made to it by the Elrod plurality:

It is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position. The coach of a state university’s football team formulates policy, but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter which party is in control of the state government. On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hir*1013ing authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

445 U.S. at 518, 100 S.Ct. at 1295 (emphasis added).

Such was the state of direct Supreme Court authority at the time of the trial court’s decision and at or about that of the panel opinion in today’s case. Around the time of the latter, however, the Supreme Court handed down its most recent opinion treating of public employment and the First Amendment, Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Sheila Myers, an assistant state prosecutor in the substantial Orleans Parish, Louisiana, office, objected to an internal transfer within the office and prepared and circulated among her colleagues a “questionnaire” impliedly critical of office transfer policy and other aspects of its operation. As a result, she was discharged forthwith. Finding that Ms. Myers’ questionnaire constituted protected speech on a matter of public concern, the trial court gave judgment for her, 507 F.Supp. 752 (E.D.La. 1981), and we affirmed. 654 F.2d 719 (5th Cir.1981). In an opinion by Justice White, the Supreme Court reversed.

The opinion focuses primarily on the Court’s 1968 Pickering decision, one that requires a case-by-case balancing of the interest of the public employee, as citizen, in commenting upon matters of public concern, against that of the state, as his employer, in promoting employee efficiency in public service. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Examining Ms. Myers’ questionnaire, set out in an appendix to the opinion, the Court concluded that most of its inquiries relating to internal office matters were mere extensions of her dispute over her transfer and not — merely because they pertained to the operation of a government office — matters of public concern. One, however, did touch upon such a concern: that which inquired whether any assistant district attorney felt pressured to support office-approved candidates in political campaigns.10 Since it did, the Court turned to the Pickering balance, observing — in terms critical to today’s case— “that the state’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.” 461 U.S. at —, 103 S.Ct. at 1691-92, 75 L.Ed.2d at 722.

Faithfulness to our task demands a careful analysis of the Court’s expressions in Connick. These commence by strongly emphasizing the government’s legitimate interest in maintaining proper discipline in the public service, to the end that its duties may be discharged with efficiency and integrity. 461 U.S. at —, 103 S.Ct. at 1691, 75 L.Ed.2d at 722. Among the factors next taken up by the Court’s discussion are these: (1) Whether the employee’s expressions under examination impeded his ability to perform his duties — noticing, as a significant factor in that overall analysis, the effect of those expressions on his working relationship with his superiors; (2) the degree to which the employee’s expressions involved matters of public concern and the gravity of that concern; (3) the time, place and manner of the expressions; and (4) the employee’s motives in voicing the expressions at issue and their context. Making an independent constitutional judgment on the facts of Connick,11 the Court concluded that Ms. Myers’ distribution of the questionnaire did not impede her ability to do her work, that it did disrupt working relationships, that the time, place and manner of distribution — at the office, partly during work hours — were such as to interfere with *1014operations, and that the act threatened Mr. Connick’s authority to run his office. Further observing that Ms. Myers’ questionnaire touched on matters of public concern in a most limited sense and implicated the First Amendment to a correspondingly limited degree, the Court concluded that her discharge was permissible. Finally, it reiterated Pickering’s caveat that

“Because of the enormous variety of fact situations in which critical statements by ... public employees may be thought by their superiors ... to furnish grounds for dismissal, we do not deem it either appropriate or feasible to lay down a general standard against which all such statements may be judged.”

461 U.S., at—-—, 103 S.Ct., at 1694, 75 L.Ed.2d, at 724-5.

The Balancing Test

Surveying the Supreme Court authority which we have discussed, we conclude that the standard to be applied by us in resolving such public employee discharge or nonrenewal cases as this is the Pickering balancing test. Each case must be considered on its particular facts, sifting through such factors and circumstances as the Connick Court outlined in order to strike the proper balance between the employee’s speech and associational rights as citizen and the state’s right as an employer to loyal and efficient service. Such cases might reasonably be expected to locate themselves on a spectrum; we conclude that they do.

Elrod and Branti, we think, lie at the extreme of the employee’s side, where little, if any, weighing is called for. There employees who were, it appears, both loyal and effective12 were discharged on the sole ground of their private and — for employment purposes — all but abstract political views. They did not campaign, they did not even speak: they merely thought. No countervailing considerations appear; they suffered discharge for pure political beliefs, a circumstance that explains the comparative absence of “weighing” terminology in these opinions.13

Toward the other extreme fall such situations as were presented in our decisions of Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970), and Duke v. North Texas State University, 469 F.2d 829 (5th Cir.1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2760, 37 L.Ed.2d 160 (1973), where instructors had incited student disturbances that were sufficiently serious to call in question the ability of the academic authorities to maintain order on' campus. Writing in Ferguson, Judge (now Chief Judge) Clark observed:

Here the proof before the district court showed that Dr. Ferguson exercised his rights of speech and association to such an extent as to seriously impair, if not to destroy, his effectiveness as an instructor in an organized program of academic tutoring. This was his choice to make. The college had no right to control his speech or to curtail his freedom of association, but they did have a right to terminate his employment as a classroom instructor at the point where the exercise of his constitutional privileges clearly over-balanced his usefulness as an instructor.

430 F.2d at 859.

The facts of Connick, which locate Ms. Myers’ situation more centrally on the spectrum, called forth a reiteration and application by the Court of the Pickering balance; and so it is with today’s case.

*1015None of the plaintiffs is situated as were the Elrod employees. Undisputed findings of the trial court establish that two of the plaintiffs, Deputies Spencer and Contreras, did not ask to be rehired by the new sheriff. Although the fact that the deputies were terminated by a “failure to rehire” rather than a “dismissal” 14 is irrelevant to the question of whether they were impermissibly terminated for exercising First Amendment rights, Branti, 445 U.S. at 513, note 6, 100 S.Ct. at 1292, note 6,15 the failure of these deputies to request rehire does raise a more basic question: Were they applicants for the job? Put another way, must a new sheriff consider for appointed positions ex-employees who do not seek reinstatement? The First Amendment imposes no such obligation.

Moreover, three of the plaintiffs — Deputies Contreras, Hinojosa and Serna — appear to have put their political beliefs into action to a greater extent than the employees in Elrod (or Branti). The trial court found, and it is not contested, that these three deputies actively supported the reelection campaign of Ybanez’ predecessor, Sheriff Ramirez, by displaying bumper stickers on their vehicles and attending local political rallies. Plaintiff McBee apparently took little part in the election but was effectively terminated for her complaints to the county authorities.16

On the other hand, this is not a Ferguson situation either. Ybanez does not argue that plaintiffs' political activities “clearly over-balanced their usefulness” in their positions — indeed, he argued that they were not fired for their political activity, but for inadequate performance.17 The trial court found that “the employment decisions made by ... Ybanez were based entirely upon his perceptions as to the extent of prospective employee’s support for and loyalty to him____” (emphasis added.) Since plaintiffs were not rehired, there is no evidence that their previous political activity actually interfered with the effective performance of their jobs, as there was in Ferguson.

Adjusting The Earlier Tests

Writing with the benefit of Connick, we determine that the appropriate test for a mid-spectrum situation such as this appears to be is the Pickering balance. Con-nick, however, is a new guidepost: both the district court and the panel had to find their way without its direction.

As noted above, the district court first determined that plaintiffs had proved that they were terminated for patronage reasons. Next, the court concluded that, for the purposes of First Amendment analysis, personal support for an individual candidate should be treated the same as national political affiliation. Finally, the court weighed the plaintiffs’ interest in freedom of belief and association against Ybanez’ expressed interest in hiring loyal employees. Applying the reasoning in Branti which redefined the Elrod “policymaking/confidential” exception in terms of effective performance, the trial court reasoned that Ybanez’ interest in loyalty would constitute a legitimate government interest in effective service only if loyalty to a particular candidate was necessary for the effective performance of the job. The trial court determined that there had been no showing that the political beliefs or activity of the deputies interfered with the effective performance of their duties; that Ybanez had not shown that political loyalty was in any way relevant to the dispatchers’ jobs; and that the small size of the office did not warrant departure from our determination in Barrett v. Thomas, 649 F.2d 1193 (5th Cir.1981), that political loyalty *1016was not required for the effective performance of the duties of employees in a sheriffs office. Id. at 1200-01.

Reversing, the panel held that the small size of the office did distinguish this case from Barrett: that because of the small size of the staff the plaintiffs’ positions “f[e]ll within the ‘policymaking, confidential’ exception to the Elrod/Branti rule,” 703 F.2d at 839, 842.18

We find the categorical approaches of the district court and the panel problematic in view of Connick’s direction to tailor the analysis to the particular facts of each case. Connick rejects affording an employee complete freedom of speech or none at all depending either on his position or any other single factor. As we recently stated in Gonzalez v. Benavides, 712 F.2d 142 (5th Cir.1983), Connick is an “effort to avoid formulaic response” in public employee First Amendment cases. “First Amendment issues presented by speaking employees are not answerable by mechanical formulae; courts must engage in a weighing exercise, giving ‘full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.’ ” 712 F.2d at 147, quoting Connick, 461 U.S. at —, 103 S.Ct. at 1692, 75 L.Ed.2d at 722.

Connick, and Gonzalez following it, read Pickering to require a comprehensive but flexible analysis — a balance which weighs the particular aspects of the government’s interest in effective service and the plaintiffs’ interest in freedom of speech that arise in each fact situation. While Con-nick does not overrule our three-step analysis for public employee First Amendment cases laid out in Tanner v. McCall, 625 F.2d 1183, 1190 (5th Cir.1980) — applied by the trial court and the panel here — it does mandate a more expansive and particularistic approach than that applied below to the first Tanner question: Assuming plaintiffs’ allegations to be true, is the defendant’s conduct an impermissible infringement of First Amendment freedoms? We turn now to the question of what factors should be weighed in today’s case.

Pickering Applied

While Pickering and its progeny do not prescribe a fixed set of factors, Gonzalez, 712 F.2d at 147,19 the cases do provide guidelines and examples.20

The inquiry followed in Connick exemplifies the sort of balancing appropriate on remand. On the one hand, the court should consider to what degree the deputies’ participation in the election campaign or Ms. McBee’s actions involve “public concerns.” On the other, the court should consider whether “close working relationships are essential to fulfilling [the deputies'] public responsibilities,” Connick, 461 U.S. at —, 103 S.Ct. at 1692, 75 L.Ed.2d at 723. We caution that the “closeness” of a working relationship as it affects job performance is not to be gauged merely by the size of the office or the number of employees. Rather, it is a function of the particular “public responsibility” being carried out. “Close working relationships” may be less rele*1017vant to the effectiveness of a five-man, one-room Motor Vehicle Bureau than they are to the effectiveness of a 50-officer police precinct, for example. Should the court find “close working relationships” “essential,” it must then determine whether the particular speech sufficiently disrupted the working relationship as to prevent effective performance, requiring a stronger showing of disruption as the employees’ speech moves closer to core “public concerns.” Id.

Relevant to the determination of disruptive effect is the time, place and manner of the political activity. The Connick court, for example, noted that the employee in that case used work time and work space, commenting that employee speech that did not do so “might lead to a different conclusion.” 461 U.S. at —, n. 13, 103 S.Ct. at 1693, n. 13, 75 L.Ed.2d at 724, n. 13.

Finally, the court should consider whether, taken in context, the particular activity could be considered sufficiently hostile, abusive or insubordinate as to disrupt significantly the continued operation of the office. 461 U.S. at —, 103 S.Ct. at 1693, 75 L.Ed.2d at 724. In this connection, to the extent that the district court’s analysis suggests that as a matter of law it will never be relevant to First Amendment inquiry whether the speech involved constitutes personal as distinguished from party political support, it stands corrected by Connick and Gonzalez. Cf. Gonzalez, 712 F.2d at 148 (even where no intimate working relationship exists, an appointed senior official’s public disavowal of the authority of his superiors may constitute such disruption as to outweigh his First Amendment right in that speech). Nor need the character of the expressions be ignored: the Constitution has not repealed human nature; and it is one thing to work with a subordinate who has expressed a reasoned preference for another superior and quite another to have forced on one’s organization an individual who has blackguarded one’s honesty and ability up and down the county.

To conduct the particularized inquiry mandated by Connick in this case will require evaluation of the record with these considerations in mind and may require further development of the facts. This is a task better suited to the district court than to consideration by us en banc. Accordingly, we vacate the judgment of that court and remand the cause for further proceedings in accordance with this opinion.

VACATED AND REMANDED.

. 703 F.2d 834 (5th Cir.1983).

. Under Texas law, deputy sheriffs are the creatures of the sheriff, serving at his pleasure and departing with him at the end of his term. Tex.Civ.Stat.Ann. art. 6869 (Vernon 1960); Trinkle v. State, 59 Tex.Cr.R. 257, 127 S.W. 1060 (1910); White v. Thomas, 660 F.2d 680 (5th Cir.1981).

. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

. Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

. None of any nature was offered as to Spencer. A claim of physical deficiency was offered as to Contreras and reservations arising from separate shooting incidents as to the other two.

. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967).

. For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473. Such interference with constitutional rights is impermissible.

408 U.S. at 597, 92 S.Ct. at 2697.

E.g., Guerra v. Roma Independent School District, 444 F.Supp. 812 (S.D.Tex.1977), and cases collected therein at 819.

. The second possible narrowing articulation is the ambiguous use in a quotation, from a mere statement of the pleadings in Elrod, of the term "solely”: "To prevail in this type of action it was sufficient, as Elrod holds, for respondents to prove they were discharged 'solely for the reason that they were not affiliated with or sponsored by the Democratic Party.'" 445 U.S. at 517, 100 S.Ct. at 1294, quoting Elrod, 427 U.S. at 350, 96 S.Ct. at 2678. Would something less be “sufficient”?

. The Court here cited Branti and Elrod for the proposition that official coercion of belief vioIates fundamental rights and other authorities to the effect that governmental service should depend on performance rather than political service. See Connick, 461 U.S. at —, 103 S.Ct. at 1691, 75 L.Ed.2d at 721.

. 461 U.S. at — n. 10, 103 S.Ct. at 1692, n. 10, 75 L.Ed.2d at 722, n. 10 and authorities collected there,

. See Elrod, 427 U.S. at 365, note 18, 96 S.Ct. at 2685, note 18:

"It does not appear that efficiency and effective government were the concerns of elected officials in this case....”

. Supporting this characterization of Elrod and Branti is the Connick Court’s characterization of these cases as standing for the rather basic proposition that:

"Official pressure upon employees to work for political candidates not of the worker’s own choice constitutes a coercion of belief in violation of fundamental constitutional rights,” 461 U.S. at —, 103 S.Ct. at 1691, 75 L.Ed.2d at 721, citing Branti, 445 U.S. at 515— 16, 100 S.Ct. at 1293-94, and Elrod.

. See note 2 supra.

. See Perry, 408 U.S. at 597-99, 92 S.Ct. at 2697-98 (expectations of continued employment irrelevant to First Amendment inquiry).

. Plaintiff Spencer apparently supported McBee's protests to some extent.

. Ybanez later conceded that his appointees were no more qualified than the plaintiffs; the trial court found Ybanez’ appointees "definitely less qualified.”

. The panel determinations were automatically vacated by our grant of en banc consideration. In order that the district court may act with a completely free hand in applying this opinion, we vacate its findings also.

. Gonzalez involved the dismissal of the executive director of a community action agency for publicly denying that the county commissioner's court had supervisory authority over the job performance of his subordinate and himself. In concluding that the firing impermissibly contravened the First Amendment, the trial judge considered each of the four specific factors which the Pickering Court weighed in balancing the employee's freedom of speech and association against the government's interest in effective public service in that case: (1) the intimacy of the working relationship; (2) the truth or falsity of the statements; (3) the effect on the employee's work group; and (4) the abstract or personal nature of the statements. See Gonzalez, 712 F.2d at 146. Guided by Connick, we remanded for the trial court to expand its analysis to include other potential governmental interests raised by the particular facts of Gonzalez among those weighed in the Pickering balance, id. at 147-150.

. We do not suggest, nor did the Court, that the factors enumerated in Pickering are meant to be exclusive of all others.