United States Court of Appeals
For the First Circuit
No. 03-2658
BENITO GALLOZA, A/K/A BENITO GALLOZA GONZALEZ, ET AL.,
Plaintiffs, Appellants,
v.
NORMAN E. FOY 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
Selya, Lipez and Howard,
Circuit Judges.
Nydia Gonzalez Ortiz, with whom Santiago & Gonzalez was on
brief for appellants.
Teresa M. Seda Ramos, with whom Sánchez Betances & Sifre,
P.S.C. was on brief, for appellees.
November 10, 2004
SELYA, Circuit Judge. In this action, the plaintiffs,
who once held identical appointed offices in the same government
agency, claim that their ousters were rooted in politics and, thus,
violated their rights under the First Amendment to the United
States Constitution. As a fallback, they also claim that the
adverse personnel actions infringed property rights secured to them
by the Due Process Clause of the Fifth and Fourteenth Amendments.
The district court brushed these claims aside and granted summary
judgment in favor of the defendants. The plaintiffs now appeal.
After careful perscrutation of the briefs and the record, we
conclude that political affiliation is a permissible criterion for
holding the positions at issue and that the plaintiffs lacked any
constitutionally protected property interest in those positions.
Consequently, we affirm the judgment below.
The essential facts are uncontroversial. In 1991, the
Puerto Rico legislature established the Municipal Revenues
Collection Center (familiarly known by its Spanish acronym, CRIM)
to "collect, receive and allocate . . . public funds" generated
primarily through municipal property taxes. P.R. Laws Ann. tit.
21, § 5802. Organizationally, CRIM maintains nine regional
offices, each of which operates under the aegis of a regional
administrator. From 1993 through 2000, the New Progressive Party
(NPP) controlled the central government of Puerto Rico. At various
times during the NPP's reign, CRIM's executive director appointed
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plaintiffs-appellants Benito Galloza Gonzalez, Orlando Mas-Muñiz,
and Luis Antonio Galarza-Pérez, each of whom had enjoyed a long and
successful career as a bureaucrat, to serve as regional
administrators.
The Popular Democratic Party (PDP) swept to victory in
the November 2000 general elections. Subsequent thereto, CRIM's
reconstituted board of directors named defendant-appellee Norman E.
Foy as CRIM's executive director and defendant-appellee Euclides
Martinez as deputy executive director. The new hierarchs requested
the plaintiffs' resignations. When the plaintiffs balked, Foy
discharged them from their regional administrator positions
(although he reinstated them to the career positions that they
previously had occupied). Foy then appointed others of his
choosing to the newly vacated regional administrator positions.
For purposes of this opinion, we assume that politics played a
decisive role in these personnel moves (Foy and Martinez are
members of the PDP, whereas the plaintiffs are members of the NPP).
The plaintiffs brought suit under 42 U.S.C. § 1983,
arguing that (i) political affiliation is an inappropriate
criterion for employment as a regional administrator of CRIM (and,
thus, the defendants' actions in reliance on it constituted
political discrimination), and (ii) each of them had acquired a
property interest in the regional administrator's position (and,
thus, the defendants' abrupt dismissals of them for partisan
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political reasons abridged due process). The defendants' riposte
was that (i) political affiliation is an appropriate criterion for
the effective performance of a regional administrator's duties, and
(ii) the position is one of "trust," statutorily committed to free
selection and removal (and, thus, not one in which a job-holder can
acquire a constitutionally protected property interest). In a
thoughtful rescript, the district court accepted the defendants'
arguments and granted summary judgment accordingly. Gonzalez v.
Foy, 286 F. Supp. 2d 223 (D.P.R. 2003). This appeal followed.
We review the entry of summary judgment de novo, taking
all disputed facts in the light most hospitable to the nonmovants
(here, the plaintiffs) and drawing all reasonable inferences
therefrom in favor of the nonmovants. Houlton Citizens' Coalition
v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999); Garside v.
Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). In conducting
this tamisage, we do not consider "conclusory allegations,
improbable inferences, and unsupported speculation." Medina-Munoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
Summary judgment is proper only if the record, read in this manner,
reflects that no genuine issue of material fact exists and that the
moving party or parties are entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(c).
Having erected the summary judgment framework, we move to
the plaintiffs' political discrimination claims. The First
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Amendment protects associational rights. Incorporated within this
prophylaxis is the right to be free from discrimination on account
of one's political opinions or beliefs. LaRou v. Ridlon, 98 F.3d
659, 661 (1st Cir. 1996). This protection extends to matters of
public employment: as a general rule, a government employer cannot
discharge public employees merely because they are not sponsored by
or affiliated with a particular political party. Elrod v. Burns,
427 U.S. 347, 350 (1976).
Like most general rules, this rule admits of certain
well-defined exceptions. One such exception is reserved for
instances in which political affiliation is an "appropriate
requirement for the effective performance of the public office
involved." Branti v. Finkel, 445 U.S. 507, 518 (1980). This
exception helps to ensure that elected representatives will not be
hamstrung in endeavoring to carry out the voters' mandate. See
Elrod, 427 U.S. at 367. Policies espoused by a new administration,
presumably desired by the citizens whose votes elected that
administration, must be given a fair opportunity to flourish.
In an effort to hold the balance steady and true between
an individual employee's legitimate First Amendment right to
freedom of association and a new administration's legitimate
interest in implementing its civic policies, the Supreme Court has
decreed that a public employer, as a prerequisite for discharging
an employee for political reasons, must demonstrate that political
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affiliation is an appropriate requirement for the position in
question. Elrod, 427 U.S. at 362-63. This means, in effect, that
the employer must show that the position is confidential or
policymaking in nature. Id. at 367.
That may be more easily said than done; determining
whether a position is "confidential" or "policymaking" is not a
matter of inserting variables into a known equation and crunching
the numbers. See, e.g., id. at 367 (acknowledging that "[n]o clear
line can be drawn between policymaking and nonpolicymaking
positions"); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324
(1st Cir. 1987) (noting that "[c]onfidentiality has many facets" in
this context). Nor can the question be resolved by the simple
expedient of examining the government's classification of a
particular position (although that taxonomy may be entitled to some
weight). See Branti, 445 U.S. at 518; Jimenez-Fuentes v. Torres
Gaztambide, 807 F.2d 236, 246 (1st Cir. 1986) (en banc); see also
Romero Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir.
1987) (warning that this court, in determining whether political
affiliation is an appropriate job requirement, has "resisted rigid
use of labels"). When all is said and done, the determination as
to whether a particular office is policymaking or confidential in
nature, so as to make political affiliation an appropriate
requirement for holding it, is fact-specific.
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This case involves positions that, according to the
defendants, have sufficient policymaking implications to avoid the
constitutional proscription against politically motivated
discharges. To test that representation, we employ a two-pronged
analysis. The first prong, derived directly from Branti, 445 U.S.
at 519, necessitates a high-level glimpse of the purpose of the
employing agency and the role that the particular position occupies
within it. Although conducted from the juridical equivalent of
50,000 feet, this reconnaissance should determine "whether the
agency employing the plaintiff handle[s] matters potentially
subject to partisan political differences," and should permit a
tentative conclusion about the extent to which the particular
position has the capacity to "influence the resolution of such
matters." Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258
(1st Cir. 1987). This first prong is satisfied (that is, a
position may be regarded, at least provisionally, as a policymaking
position) as long as the position potentially "involve[s]
government decisionmaking on issues where there is room for
political disagreement on goals or their implementation." Jimenez-
Fuentes, 807 F.2d at 241-42.
As applied to putative policymakers, the second analytic
prong aspires to actualize the potential of the particular
position. This task necessitates a detailed examination into
whether the specific responsibilities of the position sufficiently
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resemble those of a policymaker or office-holder whose functions
are such that party affiliation is an appropriate criterion for
tenure. Id. "The nature of the responsibilities is critical."
Elrod, 427 U.S. at 367.
To differentiate between policymakers and non-
policymakers, we assay a wide array of factors, including the
relative compensation level for the position, the technical
expertise (if any) required to do the job, the extent to which the
position involves supervision and control over others, the degree
to which the position confers authority to speak in the name of
higher-ups who themselves are policymakers, the influence of the
position over programs and policy initiatives, and the public
perception of what the position entails. See Jimenez-Fuentes, 807
F.2d at 242. We also factor into the mix the relationship of the
position to elected officials, party leaders, and partisan
politics. Id. Finally, "consideration should . . . be given to
whether the employee acts as an adviser or formulates plans for the
implementation of broad goals." Elrod, 427 U.S. at 368.
This inquiry focuses not on what functions a particular
occupant of the position may in fact carry out from time to time,
but, rather, on the essential attributes of the position itself.
See O'Conner v. Steeves, 994 F.2d 905, 911 (1st Cir. 1993);
Jimenez-Fuentes, 807 F.2d at 242. Thus, if a formal job
description exists, it is important for an inquiring court to look
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to the specifics of that document. See Jimenez-Fuentes, 807 F.2d
at 242. "An employee with responsibilities that are not well
defined or are of broad scope more likely functions in a
policymaking position." Elrod, 427 U.S. at 368.
We emphasize that the goal of this two-pronged analysis
is not to shackle a new administration in the legitimate pursuit of
the policies that led to its electoral success. In Flynn v. City
of Boston, 140 F.3d 42 (1st Cir. 1998), we explained that "an
employee is not immune from political firing merely because the
employee stands apart from 'partisan' politics, or is not the
ultimate decisionmaker in the agency, or is guided in some of his
or her functions by professional or technical standards. Rather,
it is enough that the official be involved in policy, even if only
as an adviser, implementer, or spokesperson." Id. at 46 (citations
and internal quotation marks omitted). Those words color our
examination of the present plaintiffs' political discrimination
claims.
We turn now from the general to the specific. Our task
is to determine whether the regional administrator position within
CRIM sufficiently relates to partisan political interests or
concerns to warrant application of the policymaker exception. We
conclude that it does.
It is difficult to imagine a more politically sensitive
issue than the collection and apportionment of taxes. Taxation is
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considered an inevitable concomitant of American life. Cf. Letter
from Benjamin Franklin to Jean-Baptiste Le Roy (Nov. 13, 1789) in
10 The Works of Benjamin Franklin 409, 410 (Boston, Hilliard, Gray
& Co. 1840) (positing that in the newly formed republic, "nothing
can be said to be certain, except death and taxes"). The tax rate,
the assiduousness of the collection process, and the distribution
of the revenues generated will significantly impact the domestic
agenda of virtually every municipal, county, and state government
in the United States (not to mention the federal sovereign).
Governments at every level rely upon tax revenues to fund programs
and functions that serve constituent needs. Roads could not be
maintained, drinking water made potable, or social services
administered without a tax-driven revenue stream. In the idiom of
the First Amendment case law, then, taxation is a "vital political
issue," Jimenez-Fuentes, 807 F.2d at 243 — and one that is of
special importance to those who harbor partisan political
ambitions.
The agency, too, is politically sensitive. CRIM's
responsibilities extend beyond collection and enforcement
activities. For example, it is tasked with setting tax rates and
allocating collected revenues to the various municipalities it
serves. See P.R. Laws Ann. tit. 21, § 5802. While the mechanical
process of collecting taxes, by itself, may not be subject to much
political disagreement, the potential for partisan divergence
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increases exponentially when an agency has the discretion to affect
the assessment of taxes and the distribution of the amounts that
are collected.
The role of the regional administrator is not
inconsequential in this process. CRIM's regional offices are
entrusted, inter alia, with the responsibility for implementing the
policies set by CRIM's board of directors and executive director.
The regional administrator is the head of each regional office. He
or she speaks for the agency in that region and superintends its
activities there. Given the political sensitivity of taxation and
the role and status of the agency and its regional administrators,
we conclude that the position is one that satisfies the first facet
of the policymaker analysis.
We thus reach the second prong of the inquiry. At that
stage, the issue to be resolved is whether the position resembles
that of a policymaker, whose functions are such that party
affiliation is a concinnous criterion for selection and/or
retention. Jimenez-Fuentes, 807 F.2d at 242. In making this
determination, what counts are the attributes inherent in the
position — its duties and powers — as opposed to the work actually
performed by a quondam holder of that position. See id.
As indicated above, a perusal of the job description for
the position is the most useful starting point for determining the
position's inherent attributes. See Roland-Plumey v. Cerezo-
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Suarez, 115 F.3d 58, 62 (1st Cir. 1997); Ortiz-Pinero v. Rivera-
Arroyo, 84 F.3d 7, 13 (1st Cir. 1996); see also Mendez-Palou, 813
F.2d at 1260 ("Whenever possible, we will rely upon [the written
job description] because it contains precisely the information we
need concerning the position's inherent powers."). Job
descriptions with duties that are broad or open-ended generally
allow for the latitude to exercise discretionary judgment (and,
thus, tend to indicate that a position is policymaking in nature).
Roland-Plumey, 115 F.3d at 62. Conversely, job descriptions with
duties that are narrowly circumscribed or rigidly delimited
generally inhibit freedom of action (and, thus, tend to indicate
that a position is not policymaking in nature). Id.
The official job description for the regional
administrator position lists twelve main areas of responsibility.1
Taken in the ensemble, this compendium strongly suggests that the
position is one in which political affiliation is an appropriate
criterion for employment. A regional administrator's duties
involve, among other things, the planning and supervision of all
administrative activities of the regional center; the oversight of
personnel; the establishment of work methods to implement CRIM's
objectives; the giving of advice to mid-level supervisory personnel
in matters such as drawing up work plans; the channeling of complex
1
For ease in reference, we attach the official job description
as an appendix to this opinion.
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cases; and representation of the agency at various types of local
assemblies, meetings, and conferences. In addition, the position
vests the holder with the authority to determine what appraisals
shall be made within the region, the power to resolve taxpayer
problems (including the right to override preliminary
determinations of the field staff or mid-level supervisors), the
responsibility of maintaining relationships with the mayors of the
affected municipalities in order to facilitate the performance of
CRIM's work, and the duty of integrating CRIM's policies with the
contribution needs and priorities of each municipality.
These are not purely mechanical or ministerial functions.
They illustrate the wide sweep of discretionary powers inherent in
the position of regional administrator. The responsibilities of a
regional administrator, in CRIM's organizational structure, are not
narrowly circumscribed, but, rather, are open-ended; they afford
the position's occupant considerable leeway for discretionary
policymaking and policy implementation.2 As the district court
perspicuously noted, the performance of a regional administrator
can affect the financial well-being of the communities within the
2
If more were needed — and we doubt that it is — we find it
compelling that the regional administrators are in the upper
echelon of CRIM's employees in terms of compensation; indeed, the
plaintiffs' pay increased anywhere from 150% to 200% after being
elevated from their career positions to the regional administrator
positions.
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region and can enhance or diminish CRIM's public image. See
Gonzalez, 286 F. Supp. 2d at 228-29.
The case law erases any lingering doubt. Although CRIM's
regional administrator positions have not previously been the
subject of reported First Amendment litigation, this court "ha[s]
regularly upheld against First Amendment challenge the dismissal on
political grounds of mid- to upper-level officials or employees who
are significantly connected to policy-making." Flynn, 140 F.3d at
45. On this basis, we uniformly have classified analogous
positions as involving policymaking. See, e.g., Duriex-Gauthier v.
Lopez-Nieves, 274 F.3d 4, 10 (1st Cir. 2001) (holding that the
personnel officer in Puerto Rico's Ombudsman's Office was a
policymaking position, notwithstanding a number of "technical and
administrative" duties, because its occupant was "responsible for
the planning and supervising of . . . personnel activities" and the
like); Ortiz-Pinero, 84 F.3d at 11 (concluding that the office of
director of federal programs in an agency that obtained and
administered federal funding for public works projects was a
policymaking position); Ortiz Lebron v. Santiago Nieves, 813 F.2d
22, 26 (1st Cir. 1987) (holding that the position of regional
director of the Puerto Rico Department of Natural Resources was
policymaking in nature); Jimenez-Fuentes, 807 F.2d at 244 (holding
to like effect anent a regional director of Puerto Rico's Urban
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Development and Housing Corporation). This case is cut from the
same cloth.
Where, as here, the holder of a position is deeply
involved in policy, even if only as an implementer or agency
representative, no more is exigible to satisfy the Elrod-Branti
analysis. Taking into account the position's "relative pay, 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," Jimenez-Fuentes, 807 F.2d at 242 (citation and internal
quotation marks omitted), we conclude that, for First Amendment
purposes, a regional administrator in the CRIM hierarchy is a
policymaker.
In an effort to blunt the force of this reasoning, the
plaintiffs contend that CRIM's independence from the central
government and the bipartisan makeup of its board of directors
necessitate a finding that political affiliation is not an
appropriate criterion for appointment as a regional administrator.
We do not agree.
The legislature created CRIM on the understanding that
the agency would be "independent and separate from any other agency
or instrumentality of the Government of the Commonwealth of Puerto
Rico." P.R. Laws Ann. tit. 21, § 5802. Although this language
establishes CRIM as a separate and independent agency, nothing in
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the statute declares that the agency is to be a political eunuch.
In fact, the statute specifies that CRIM's board of directors shall
consist of nine members, seven of whom are to be sitting mayors and
two of whom are to be officials of the central government.3 P.R.
Laws Ann. tit. 21, § 5804. The seven mayors are elected by vote of
all the incumbent mayors, but four of them must belong to "the
party winning the greatest number of municipalities in the general
elections immediately preceding." Id. § 5804(a). These members
serve four-year terms, roughly coincident with the four-year term
of the governor. Id. § 5804(c).
For present purposes, this scheme is informative in two
respects. First, it makes party affiliation a conspicuously
important integer in the decisional calculus and, thus, belies any
desire on the part of the legislature to insulate CRIM from
political influences. Second, even if one assumes, for argument's
sake, that it is theoretically possible for the political
affiliation of the majority on the board to differ from that of the
leadership of the central government, this would simply shift the
prevailing political agenda from one of the two major parties to
the other. Whether or not the governor's party dominates the board
of directors, some party will dominate it; that party will have an
agenda; and the regional administrators will, therefore, remain
3
These officials — the president of the Government Development
Bank and the Commonwealth's commissioner of municipal affairs — are
themselves patronage appointees.
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deeply engrossed in matters of partisan political concern. Hence,
we reject the plaintiffs' attempt to extricate this case from the
mine-run of decisions applying the Elrod-Branti doctrine.
To sum up, a multifaceted analysis of the functions of
CRIM, the attributes of the regional administrator's position, the
plaintiffs' job descriptions, and the relevant case law persuades
us that the position is open to patronage dismissals.
Consequently, the district court did not err in entering summary
judgment in favor of the defendants on the plaintiffs' political
discrimination claims.
This leaves the plaintiffs' claims under the Fifth and
Fourteenth Amendments. Those claims derive from an assertion that
each plaintiff had acquired a property interest in his regional
administrator's position, so that his dismissal — which took place
without either a hearing or a statement of cause — was in violation
of due process. These claims are groundless.
To be sure, the Constitution affords due process
protections to public employees who possess property interests in
continued public employment. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 541 (1985). But the Constitution does
not itself create property rights. Rivera-Muriente v. Agosto-
Alicea, 959 F.2d 349, 350 (1st Cir. 1992). Rather, the question of
whether a public employee possessed a protectable property interest
in a particular job is governed by local law and the terms and
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conditions of the employment arrangement. See Ortiz-Pinero, 84
F.3d at 17; Rivera-Muriente, 959 F.2d at 352.
Puerto Rico law establishes two categories of public
employees: career and confidential. P.R. Laws Ann. tit. 3, §
1349. Confidential employees, sometimes known as trust employees,
are "those who intervene or collaborate substantially in the
formation of the public policy, who advise directly or render
direct services to the head of the agency." Id. § 1350. Regional
directors of agencies are expressly included within this taxonomy.
Id. § 1350(4). The plaintiffs, vis-à-vis the positions at issue
here, are therefore confidential employees.4
That ends this aspect of the matter. The plaintiffs
admit that they ascended to the regional administrator positions by
non-competitive appointment to positions designated by Puerto Rico
law as trust positions. Appellants' Br. at 4. Unlike career
employees, who are "selected strictly on merit and can be removed
only for cause," Jimenez-Fuentes, 807 F.2d at 246, trust employees
are, under Puerto Rico law, of "free selection and removal," P.R.
Laws Ann. tit. 3, § 1350(8). Thus, the holder of a trust position
does not have a constitutionally protected property interest in
4
As mentioned earlier, each of the plaintiffs is also a career
employee vis-à-vis the position to which he was returned after
being ousted from his regional administrator's post. The
plaintiffs' career positions are not at issue here.
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that position. See Ruiz-Roche v. Lausell, 848 F.2d 5, 7 (1st Cir.
1988). Accordingly, the plaintiffs' due process claims founder.
We need go no further. Concluding, as we do, that the
position of regional administrator within CRIM is one for which
political affiliation is a valid criterion and in which the
plaintiffs had no legitimate expectation of continued employment,
we uphold the lower court's entry of summary judgment for the
defendants.
Affirmed.
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APPENDIX
ESSENTIAL FUNCTIONS OF THE POSITION
1. PLANS, DIRECTS, SUPERVISES AND EVALUATES ALL THE ADMINISTRATIVE
ACTIVITIES OF THE [REGIONAL] CENTER.
2. ADVISES THE SUPERVISOR OF TAXPAYER SERVICES, CHATTELS AND REAL
PROPERTY IN DRAWING UP WORK PLANS AND PROPER CHANNELING OF COMPLEX
CASES.
3. ESTABLISHES THE WORK METHODS WHICH WILL INSURE THE ACHIEVEMENT
OF THE OBJECTIVES OF THE REGIONAL OFFICE.
4. DETERMINES [REGIONAL] CENTER NEEDS AND OFFERS RECOMMENDATIONS
TO MEET THE SAME.
5. DRAFTS COMMUNICATIONS AND REPORTS RELATED TO THE FUNCTIONS
WHICH S/HE PERFORMS.
6. COORDINATES EDUCATIONAL PROGRAMS AND TRAINING SESSIONS WITH
SUPERVISORS IN ORDER TO ACCOMPLISH THE PROFESSIONAL DEVELOPMENT OF
EMPLOYEES.
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7. PARTICIPATES IN GENERAL MEETINGS CALLED BY THE ASSISTANT
DIRECTOR OF REGIONAL OPERATIONAL SERVICES TO FOLLOW THE DIRECTIVES
FOR IMPLEMENTING WORK PLANS.
8. REPRESENTS THE REGIONAL OFFICE AT ASSEMBLIES, MEETINGS,
CONFERENCES OR ANY OTHER TYPE OF ACTIVITY THROUGH DELEGATION BY THE
ASSISTANT DIRECTOR OF REGIONAL OPERATING SERVICES.
9. ASSISTS DISSATISFIED TAXPAYERS FROM ALL BRANCHES (CHATTELS &
REAL PROPERTY AND TAXPAYER SERVICES) WHO COME IN SEEKING
ORIENTATION AT A HIGHER LEVEL.
10. KEEPS INVENTORY OF THE REGIONAL OFFICE'S PROPERTY.
11. KEEPS CUSTODY OF THE DOCUMENTS OF THE REGIONAL OFFICE.
12. DETERMINES NEEDS FOR MATERIALS AND EQUIPMENT AND SUBMITS
REQUISITIONS.
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Galloza-Gonzalez v. Foy
Court: Court of Appeals for the First Circuit
Date filed: 2004-11-10
Citations: 389 F.3d 26
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