United States Court of Appeals
Fifth Circuit
F I L E D
July 3, 2003
UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_______________________
No. 01-60672
_______________________
CHARLES M (MICKY) GENTRY,
Plaintiff-Appellee,
versus
LOWNDES COUNTY, MISSISSIPPI; ET AL,
Defendants,
JOE BROOKS, In his individual capacity,
Defendant-Appellant.
_______________________________
LEW CORNELIUS,
Plaintiff-Appellee,
versus
LOWNDES COUNTY, MISSISSIPPI; ET AL,
Defendants,
JOE BROOKS, In his individual capacity,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________________________________________________
Before JONES, WIENER, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Lowndes County and Joe Brooks, president of its board of
supervisors, appeal the district court’s denial of their motions
for summary judgment against the appellees’ political patronage
dismissal claims. We conclude that the appellees, who held the
posts of county road manager and county administrator, occupied
politically sensitive and responsible posts in which loyalty to the
elected board is an essential quality. They could therefore be
terminated for supporting the board’s political opponents. We
therefore reverse the district court’s denial of Brooks’s claim of
qualified immunity on this one aspect of appellees’ case against
Brooks. The county’s appeal is dismissed.
I. BACKGROUND
Charles Gentry is the former Lowndes County road manager,
and Lew Cornelius is the former Lowndes County administrator. In
January 2000, the newly elected Lowndes County board of supervisors
decided by a three-to-two vote not to renew Gentry’s and
Cornelius’s contracts; appellant Joe Brooks was the president of
the new board and voted with the majority.
Gentry and Cornelius each filed suit against Lowndes
County and Brooks, in his individual capacity, alleging that they
2
were discharged in violation of their First Amendment rights.1
Specifically, Gentry alleges that he was unconstitutionally
discharged for supporting and campaigning for Brooks’s political
opponent and for opposing Brooks’s requests that he fire the son of
Brooks’s political opponent and perform road work to benefit
Brooks’s friends. Cornelius alleges that he was unconstitutionally
discharged for supporting and campaigning for Brooks’s political
enemy, for complaining to the board about the former chancery
clerk’s receiving illegal funds, and for opposing Brooks’s requests
to fire the son of Brooks’s political opponent and to hire Brooks’s
girlfriend.
After the district court consolidated the actions,2 the
defendants filed motions to dismiss or for summary judgment,
arguing in part that Brooks should receive qualified immunity from
Gentry’s and Cornelius’s political patronage dismissal claims.3
Pursuant to 28 U.S.C. § 636(c), the parties consented to
1
Gentry and Cornelius also alleged violations of due process, equal protection, and various
state laws. Those issues, however, are not presently before this court.
2
The district court consolidated the actions of Gentry, Cornelius, and a third plaintiff Douglas
Ray Buchanan. This appeal, however, does not concern Buchanan.
3
The defendants also sought peremptory relief predicated inter alia on the application of the
Connick-Pickering balancing test to specific speech by the appellees, which the appellees characterize
as whistleblower speech. For instance, appellees claim First Amendment protection for their refusal
to hire Brooks’s friends or fire his foes and Gentry’s objection to a demand to use county crews on
a private construction project. The magistrate judge denied relief on these claims and issues, and they
have not been specifically briefed on appeal.
3
disposition of the case by a magistrate judge. The magistrate
judge denied the summary judgment motions.
II. DISCUSSION
A. Jurisdiction
“District court orders denying summary judgment on the
basis of qualified immunity are immediately appealable under the
collateral order doctrine, notwithstanding their interlocutory
character, when based on a conclusion of law.” Chiu v. Plano
Indep. Sch. Dist., 260 F.3d 330, 340 (5th Cir. 2001) (citing Lukan
v. N. Forest ISD, 183 F.3d 342, 345 (5th Cir. 1999)). Whether a
public employee can be dismissed for exercising his First Amendment
right to support political opponents of his superiors is a question
of law for the court. Hoard v. Sizemore, 198 F.3d 205, 211-12 (6th
Cir. 1999). The Fifth Circuit reviews the denial of qualified
immunity de novo. Cozzo v. Tangipahoa Parish Council-President
Gov’t, 279 F.3d 273, 284 (5th Cir. 2002).
Lowndes County urges the exercise of jurisdiction over
its interlocutory appeal because the defenses asserted by Brooks
would, if accepted, also protect the county from liability. Such
jurisdiction is clearly foreclosed, since the county is unprotected
by immunity. See, e.g., McKee v. Rockwall, 877 F.2d 409, 412 (5th
Cir. 1989).
4
B. Qualified Immunity
Qualified immunity protects government officials
performing discretionary functions from liability as long as their
conduct does not violate “clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 2515,
153 L. Ed. 2d 666, 678 (2002) (citation omitted); Roe v. Tex. Dep’t
of Protective & Regulatory Servs., 299 F.3d 395, 408-09 (5th Cir.
2002). Qualified immunity analysis involves two steps. The first
inquiry is whether the plaintiffs have alleged a constitutional
violation. Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995). If
the first inquiry is satisfied, this court must determine whether
the defendant’s conduct was objectively reasonable in light of
clearly established law at the time the challenged conduct
occurred. Goodson v. City of Corpus Christi, 202 F.3d 730, 736
(5th Cir. 2000).
Gentry and Brooks allege that they were discharged in
violation of their First Amendment rights because each campaigned,
respectively, for Brooks’s political opponent William Brown and
Brooks’s political enemy, fellow County Supervisor Leroy Brooks.4
4
Joe Brooks represented District 4, and Leroy Brooks represented District 5. Both are
Democrats. They were, however, political enemies; there was animosity between the two men, and
Joe Brooks politicked against Leroy Brooks in his district. In this circuit’s political patronage firing
cases, the inquiry focuses on “support of and loyalty to a particular candidate as distinguished from
a political party.” Correa v. Fischer, 982 F.2d 931, 935 (5th Cir. 1993) (quoting McBee v. Jim Hogg
5
Brooks contends that because Gentry and Cornelius held high-level
administrative positions, for which loyalty to the Board of
Supervisors is essential, he did not violate their First Amendment
rights even if he voted against rehiring them because of their
political activites.5
In a number of cases, the Supreme Court has established
that public employees do not necessarily shed their First Amendment
rights of speech and political association in exchange for their
jobs, but they often must make adjustments.6 That is to say, the
Court has acknowledged that public employees’ exercise of certain
First Amendment rights may legitimately be restrained where it
could lead to an inability of elected officials to get their jobs
done on behalf of the public. See Branti, 445 U.S. at 517-18.
County, 703 F.2d 834, 838 (5th Cir. 1983), vacated on other grounds, 730 F.2d 1009 (1984) (en
banc)).
5
Given the fact that the entire board had to vote on Gentry’s and Cornelius’s terminations,
and that they were fired by a 3-2 vote, their seeking to impose liability on Brooks individually seems
at best a queer strategic choice and at most, not even a cognizable claim. Brooks plainly could not
fire these officials on his own, hence it seems doubtful that he could have caused a constitutional
violation. Brooks appears to have inartfully raised this point in the trial court, arguing that under
Oden v. Oktibbeha County, 246 F.3d 458 (5th Cir. 2001), he could not be held individually liable.
Oden, however, interprets 42 U.S.C. § 1981, not the question (raised here) of a county supervisor’s
individual § 1983 liability for a decision that could only be made by the county board as an entity.
In any event, Brooks has not urged this issue on appeal, and this court cannot consider issues that are
not raised in a party’s appellate brief. Smith v. State Farm Fire & Cas. Co., 695 F.2d 202, 206 (5th
Cir. 1983).
6
Branti v. Finkel, 445 U.S. 507, 518, 100 S. Ct. 1287, 1295, 63 L. Ed. 2d 574, 584 (1980);
see also Rutan v. Republican Party, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990); Elrod
v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976).
6
Courts must balance these important public and individual interests
in order to determine the constitutionality of particular adverse
employment actions. The balancing test pertinent here considers
among other things the policy sensitivity of the employment, the
nature and content of the employee’s speech or political activity,
the extent of public concern implicated by the speech, and whether
close confidential working relations with elected officials are
necessary. This circuit, interpreting the Court’s decisions,
places cases involving only political association, only speech, or
a combination of the two on a spectrum. Kinsey v. Salado Indep.
Sch. Dist., 950 F.2d 988, 993-94 (5th Cir. 1992) (en banc) (citing
McBee v. Jim Hogg County, 730 F.2d 1009, 1014 (5th Cir. 1984)).
Where nonpolicymaking, nonconfidential employees are discharged
solely because of their private political views, little, if any,
weighing7 of an employee’s First Amendment rights against an
employer’s right to loyal and efficient service is necessary, and
the employee’s rights will usually prevail. Id.; McBee, 730 F.2d at
1014. On the opposite end of the spectrum, however, are cases
where employees’ exercise of First Amendment privileges “clearly
7
In Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), the Supreme
Court expressly adopted the balancing analysis first recognized in Pickering v. Bd. of Educ., 391 U.S.
563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and applied it to cases in which a public employee
asserts that he has been disciplined in retaliation for the exercise of First Amendment speech. This
court adapted the test to hybrid situations involving political association as well as speech claims.
See Kinsey, 950 F.2d at 993-94.
7
over-balanced [their] usefulness.” McBee, 730 F.2d at 1014 (citing
Ferguson v. Thomas, 430 F.2d 852, 859 (5th Cir. 1970); Duke v. N.
Tex. State Univ., 469 F.2d 829 (5th Cir. 1972)). When cases fall
within the spectrum, courts are to balance the extent to which
“public concerns” are implicated by the employees’ speech or
association against the significance of maintaining a close or
confidential working relationship with the public employer.
Kinsey, 950 F.2d at 994. Kinsey emphasizes that where a public
employee (there, a school superintendent) occupies a confidential
or policymaking role, the employer’s interests more easily outweigh
the employee’s First Amendment rights. Id.
Here, there is no doubt that Gentry and Cornelius put
their political beliefs into action. On weekends and at night,
Gentry campaigned for Brooks’s political opponent, William Brown.
Cornelius solicited votes for Brooks’s political enemy, Leroy
Brooks, and talked his brother-in-law out of running against Leroy.
These core First Amendment political activities must be evaluated
against the backdrop of the appellees’ employment responsibilities.
Gentry and Cornelius concede that they owe allegiance to
the Board of Supervisors as a whole. In other words, with respect
to the entire board, “party affiliation is an appropriate
requirement for the effective performance of the public office[s]
involved.” Branti, 445 U.S. at 518, 100 S. Ct. at 1295, 63 L. Ed.
2d at 584. The appellees contend, however, that they cannot be
8
required to enjoy the trust and confidence of or demonstrate
political loyalty to Brooks as an individual supervisor. This
perspective is artificially narrow for two reasons. First, Kinsey,
is contrary to their position, as this court held that a school
board did not violate the superintendent’s First Amendment rights
when it terminated his contract because he opposed the election of
several, but not all, board members. Kinsey, 950 F.2d at 996.
Second, what Kinsey means is that if a public employee’s loyalty is
owed to a multimember governing board, he cannot choose political
favorites or enemies among the board because shifting coalitions or
electoral victories may too easily render the employee’s decisions,
made in accord with personal preference, at odds with the board
majority view. Political neutrality toward all elected board
members must be the rule in such situations, if the employee holds
a position in which neutrality may be constitutionally required.
This leads to appellees’ additional line of attack, which
is that their posts in county government are not of a policymaking
nature and hence do not require them to stifle their exercise of
First Amendment political rights. Although this court has not
previously addressed whether county road managers or administrators
occupy politically sensitive posts, we have permitted dismissals of
politically unreliable employees in a number of other positions
following the applicable balancing test. See, e.g., Aucoin v.
Haney, 306 F.3d 268 (5th Cir. 2002) (assistant district attorney);
9
Kinsey, 950 F.2d at 995-96 (school superintendent); Soderstrum v.
Town of Grand Isle, 925 F.2d 135, 141 (5th Cir. 1991) (personal
secretary to police chief); Stegmaier v. Trammell, 597 F.2d 1027,
1040 (5th Cir. 1979) (deputy clerk).8 We have also held that
qualified immunity is appropriate in a case where “neither the
Fifth Circuit nor the Supreme Court had addressed the issue of
political patronage in the hiring or firing of investigators in
district attorneys’ offices, and neither had addressed an issue
sufficiently analogous that a reasonable official would understand
from its resolution that it is a First Amendment violation to
dismiss or not hire an investigator on the grounds that the
investigator supported the campaign of the official’s opponent.”
Gunaca v. Texas, 65 F.3d 467, 475 (5th Cir. 1995).
Nevertheless, other courts have uniformly held that the
First Amendment does not protect employees in positions similar to
the Lowndes County road manager from political dismissals. The
Sixth Circuit, for example, concluded that a county road department
foreman, the equivalent of Lowndes County’s road manager, occupies
8
But see Brady v. Fort Bend County, 145 F.3d 691, 709-10 (5th Cir. 1998) (concluding that
deputy sheriffs do not fall within the class of public servants from whom political allegiance may be
demanded); Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir. 1995) (same); Click v. Copeland, 970
F.2d 106, 112-13 (5th Cir. 1992) (same); Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir. 1981).
The deputy sheriff cases are distinguishable from our other dismissal cases either because they do not
hold policymaking or confidential positions, Barrett, 649 F.2d at 1201, or because the sheriffs do not
allege that the deputies’ po litical activities actually or potentially could affect the Sheriffs Office’s
ability to provide services, Brady, 145 F.3d at 709-10; Click, 970 F.2d at 112-113; Vojvodich, 48
F.3d at 886.
10
an inherently political position that falls within the Branti
exception. Hoard, 198 F.3d at 213-14; see also Selch v. Letts, 5
F.3d 1040 (7th Cir. 1993) (political affiliation may
constitutionally serve as a hiring consideration where the
plaintiff, a highway subdistrict superintendent, oversaw the
maintenance and repair program for state highways, buildings,
grounds, and equipment); Wagner v. Hawkins, 634 F. Supp. 751, 754
(W.D. Ark. 1986) (county road foreman falls within the Branti
exception).
The road manager is the second highest non-elected
management position in Lowndes County. The road manager runs a
county road department supervising the building of bridges and the
construction and maintenance of county roads. He also helps to
prepare a budget, purchases and leases equipment, hires assistants
and employees, and carries out the general policies of the county
board of supervisors. MISS. CODE ANN. § 65-17-1. Roads in rural
Mississippi are the political lifeblood of elected officials, and
the public’s view of the elected supervisors depends greatly on the
road manager’s performance and supervision of employees. The road
manager occupies a position where “party affiliation is an
appropriate requirement for the effective performance of the public
office involved.” Branti, 445 U.S. at 518, 100 S. Ct. at 1295, 63
L. Ed. 2d at 584. As the Sixth Circuit explained in Hoard,
11
In light of the inherent nature of this position, which
involves responsibility for carrying out the county
judge-executive’s road maintenance policy and controlling
the lines of communication between the public and the
judge executive, as well as the nature of the job as
envisioned by the new officeholder, we conclude that the
position is inherently political. The evidence in the
record shows that, although the road foreman does not
have significant discretionary authority as to policy
matters, he serves as the judge’s “alter ego” in the
community with respect to road conditions.
Hoard, 198 F.3d at 213-14 (citation omitted).
The county administrator holds a similar position, though
with broader policymaking authority than the road manager, and he
works closely with the board of supervisors. The administrator’s
duties include, but are not limited to, ensuring that board orders,
resolutions, regulations, and policies are executed; preparing a
budget; employing assistants for the board; working as a liaison
with various divisions of county government; ensuring that county
property is properly managed, maintained, and repaired; reporting
to the board on the county’s affairs and financial condition;
informing the board of federal and state laws that affect the
board; receiving, investigating, and reporting citizens’ complaints
to the board; meeting regularly with the board; and performing any
administrative duties legally delegated to him by the board. MISS.
CODE ANN. § 19-4-7.
Because the road manager and county administrator occupy
critical managerial roles in county government, and because their
duties strongly influence the public’s view of the elected board of
12
supervisors, the board must be assured of the trust and loyalty of
the road manager and administrator and must be able to assume the
confidentiality, when necessary, of their mutual dealings. These
appellees’ positions enable them to advance the board’s policies,
if they act faithfully, or to undermine those policies by overt or
covert opposition. Because Gentry’s and Cornelius’s political
activities created strains that could easily disrupt and prevent
the effective performance of public services, the government
interest must take precedence over those activities. We therefore
conclude that even if Brooks voted to discharge Gentry and
Cornelius because they campaigned for his political opponent and
enemy, they failed to allege a violation of their constitutional
rights in this respect.9
That Brooks is shielded from First Amendment liability if
he fired Cornelius and Gentry solely for their political activities
against him does not end this case, however. The appellees also
allegedly opposed certain of Brooks’s official actions, including
his desire to put his girlfriend on the county payroll and his
insistence that county resources be used to pave a friend’s road on
private property. Brooks asserts, without explanation, that the
9
Because the appellees fail to allege a violation of their constitutional rights, we need not
address the second prong of the qualified immunity analysis. We note, however, that under Noyola
v. Tex. Dep’t of Human Res., 846 F.2d 1021 (5th Cir. 1988), Brooks’s conduct was not objectively
unreasonable because the right Gentry and Cornelius attempt to assert was not clearly established at
the time the challenged conduct occurred. See also Gunaca, supra.
13
Branti exception allowed him to seek to terminate Gentry and
Cornelius for speech other than that related to their political
activities. This assertion is incorrect. Kinsey places all public
employee speech on a spectrum based on analysis of the nature of
the speech as well as the employee’s position. A position of trust
and confidence limits the employee’s right to engage in political
activity against his superiors, in Kinsey as in this case, but the
position “does not immunize public employer action unconnected to
and unmotivated by [the] need for political loyalty.” Bonds v.
Milwaukee County, 207 F.3d 969, 979 (7th Cir. 2000) (relying on
Marshall v. Porter County Plan Comm’n, 32 F.3d 1215, 1221 (7th Cir.
1994) (government employer could not terminate a policymaking
employee for speech criticizing her employer’s abuse of office
because the speech did not involve her political or policy
viewpoints)). Thus, Gentry’s and Cornelius’s “speech” concerning
Brooks’s official actions, rendered in the course of their
employment, may have been protected under the First Amendment,
rendering retaliation by Brooks possibly unconstitutional. A
number of issues must be resolved before judgment can be entered
for appellees: whether they indeed engaged in such employment-
related speech; whether under the Pickering/Connick test, the
speech touched matters of “public concern” and is otherwise
constitutionally protected in the workplace; and whether that
speech, as opposed to appellees’ political activities, motivated
14
their termination. We note, without deciding, these issues, which
are not before us on appeal and remain to be decided by the
district court.
III. CONCLUSION
As Lowndes County road manager and administrator, Gentry
and Cornelius held positions that fall within the Branti exception
to First Amendment protection of political association and speech.
When they decided to support and campaign for Brooks’s political
opponent and enemy, they abandoned any First Amendment protection
otherwise afforded them against a patronage dismissal. The
district court judgment denying Brooks’s motion to dismiss Gentry’s
and Cornelius’s political dismissal claims based on qualified
immunity is therefore reversed.
REVERSED and REMANDED.
15