No Violation Of First Amendment For Refusing To Promote Deputy Because Of His Political Activities

James Fuerst, once the president of the Milwaukee, Wisconsin Deputy Sheriffs’ Association, had a troubled relationship with Sheriff David Clarke. After Clarke had been initially appointed to the position of Sheriff, and while he was seeking election, the Association’s board approved a “no confidence vote” on Clarke. Fuerst was involved in the vote and was in charge of publicizing the results to the community at large.

Fuerst marched in a Labor Day parade in support of Clarke’s opponent, and was involved in door-to-door campaigning on behalf of the opponent.

After Clarke was successfully elected, he attended a meeting of the Association. At the meeting, Clarke said he would promote individuals according to their ranking on an eligibility list, by “going right down the list.”
In the Fall of 2002, the Department conducted an examination for the position of sergeant. Fuerst scored second out of the 105 individuals taking the examination. Clarke filled three sergeant vacancies with the individuals ranked first, thirteenth, and fourteenth on the promotional list. Fuerst then sued, contending that he was passed over for promotion because of his political activities.

A federal court in Wisconsin found that it was acceptable for Clarke to pass over Fuerst for political reasons. An exception to the general view on public agencies considering political activities or beliefs in employment decisions is what is know as the “policymaking” rule. Under the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), if “party affiliation is an appropriate requirement for the effective performance of the public office involved,” politics can play a part in selection for the job.

The Court found that the position of sergeant in the Sheriff’s Department was such a policymaking position.

The Court based its decision on the fact that “sergeants work autonomously, and operate at least with some discretion when performing their duties. When sergeants are training deputy sheriffs, effecting arrests and investigating crimes, or acting as liaisons between the Department and other agencies, there is plenty of room for principled disagreement regarding the enforcement of the law or departmental policy. The position of sergeant in the Milwaukee County Sheriff’s Department is not merely a ministerial position. This Court finds that sergeants have meaningful input into the implementation of Department policy, and are policymakers.”
Fuerst argued that it would be a “practical impossibility” for 43 sergeants to have “meaningful input” into the creation or implementation of the policies of the Department. The Court rejected the contention, holding that “the number of sergeants in the Department or the overall size of the Department, while though instructive in determining the overall command structure of the Department, is not particularly relevant to the inquiry as to whether the sergeant has meaningful input into the creation or implementation fo the Sheriff’s policies.”

Fuerst v. Clarke, 2005 WL 2387715 (E.D.Wis. 2005).

NOTE: The application of the “policymaker” exception to the First Amendment is quite unsettled. In some areas of the country (as in Wisconsin), even deputy sheriffs have been held to be “policymakers.” In most other areas of the country, the policymaker exception is reserved for only the highest ranks in sheriffs departments, an exception is never applied in a police department.

This article appears in the November 2005 issue