In two decisions that are roughly 30 years old, Elrod v. Burns, 427 U.S. 347 (1976) and Brantie v. Finkel, 445 U.S. 507 (1980), the Supreme Court generally ruled that dismissals for political patronage purposes were unconstitutional. However, the Court found a narrow exception to the unconstitutionality of patronage dismissals for “policymaking positions.” The Court described a policymaking position as where “the employee acts as an advisor or formulates plans for the implementation of broad goals.”
Over the years since Elrod and Brantie, a number of courts have addressed whether deputy sheriffs are “policymakers” who can be fired for political reasons. Three federal courts of appeals – the Fourth Circuit (covering portions of the southeast United States), the Seventh Circuit (covering portions of the upper Midwest), and the Eleventh Circuit (covering other portions of the southeast United States) – have found that “deputy sheriffs operate with a sufficient level of autonomy and discretionary authority to justify a sheriff’s use of political considerations when determining who will serve as deputies.” Other courts have declined to follow such a rule with deputy sheriffs, finding that only the highest-ranking employees could be subject to political dismissal.
The issue was revisited again by a court considering the claim of Lieutenant Jeff Bardzik against the Orange County, California Sheriff’s Department. Bardzik, who served as the Reserve Division Commander, supported an unsuccessful challenger for the position of sheriff. Bardzik contended that, in retaliation, the Department rescinded a promised promotion, denied him pay raises, prevented further promotions, and transferred him to a less prestigious position.
The County argued for the per se rule that all deputy sheriffs should be subject to politically-oriented discipline. The Court, though, declined to adopt such a rule, noting that the Ninth Circuit Court of Appeals, covering the western United States, had declined to follow cases finding deputy sheriffs to be policymakers. As phrased by the Court, “a per se rule concerning deputy sheriffs is not appropriate in the Ninth Circuit or in California. The title deputy sheriff or sheriff’s deputy is not a clear job category with consistent responsibilities in California. Any categorization based upon job title alone obscures rather than clarifies the nature of the duties actually performed and the constitutional rights at issue. Therefore, this Court must examine Bardzik’s specific duties to determine whether party affiliation, or more precisely loyalty to the Sheriff in the electoral process, is an appropriate requirement for the effective performance of the position.”
The Court found that the evidence was sufficiently in dispute to warrant submitting the question to the jury. While the Court found that Bardzik had considerable supervisory authority and contact with elected officials, both of which would argue for his status as a policymaker, it also found that he was relatively low-ranking and low-compensated compared to other supervisors in the Department. The Court observed that assistant sheriffs in the Department earned as much as double what Bardzik did, and that his position of lieutenant was separated from the Sheriff by the ranks of captain, assistant sheriff, and undersheriff. The Court also found troubling the facts that (1) Bardzik’s chain of command was never directly to the Sheriff; (2) Bardzik was not authorized to transfer or allocate funds from the budget; (3) Bardzik only supervised five full-time paid employees; and (4) Bardzik did not have final authority for the performance evaluations of the employees he supervised. In the end, the Court found that although the County had “presented some evidence to suggest that Bardzik was a policymaker, it has not presented sufficient evidence for the Court to find as a matter of law that Bardzik held a policymaking position where political affiliation was a reasonably appropriate requirement for the job.”
Bardzik v. County of Orange, 2009 WL 734692 (C.D. Cal. 2009).
This article appears in the June 2009 issue