The ‘Policymaker’ Rule As Applied In A California Sheriff’s Department

Jeffrey Bardzik was a lieutenant in the Orange County, Callifornia; Michael Carona was the Sheriff. Bardzik sued Carona, alleging that Carona violated Bardzik’s First Amendment right to free speech by retaliating against Bardzik for supporting Carona’s opponent in the 2006 Sheriff’s election. Bardzik contended that Carona retaliated against him by transferring him from the prestigious position of Reserve Division Commander to an undesirable post at Court Operations. Bardzik also argued that Carona continued punishing him even after he was transferred.

In allowing a portion of Bardzik’s suit to continue, the federal Ninth Circuit Court of Appeals had to decide how the “policymaker” rule applied to the positions held by Bardzik. Under the Supreme Court’s decisions in Branti v. Finkel, 445 U.S. 507 (1980) and Elrod v. Burns, 427 U.S. 347 (1976), while the First Amendment generally protects the rights of citizens to criticize a government official, to support a candidate opposing an elected official, or to run against an elected official, and while a citizen does not check these rights at the door when he accepts a government job, there exists a “policymaker” exception to these general rules.

In the cases, the Supreme Court held that an elected official must be able to appoint some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for. An elected official is constitutionally free to discipline these same policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else.

The main question in these sorts of cases is whether an employee meets the test for being a policymaker. Most courts have rejected the argument that all Sheriff’s deputies, regardless of rank, are per se policymakers. Rather, courts consider factors such “vague or broad responsibilities, relative pay, technical competence, 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.”

Applying these tests to Bardzik, the Court found that he was a policymaker when he was Reserve Division Commander, and could not challenge his transfer. Important to the Court was the extent to which the Sheriff delegated authority to Bardzik to “get rid of the dead wood,” and to run the Reserves “like every other division,” instead of a “badge and gun club.” Carona told Bardzik to ensure “that people are up to speed for the assignment that they have” and to improve “the image of the Reserve Division.” In the Court’s view, this meant that Bardzik “was in effect running the Reserves,” and “had influence on Department programs in his effort to carry out the Sheriff’s sweeping mandate.”

On the other hand, the Court found that Bardzik’s post-transfer job – as a court operations lieutenant – was not that of a policymaker: “While at Court Operations, Bardzik supervised three sergeants and a civilian supervisor for inmate movement. He did civil processing, security, weapons screening, and conferred with judges and other divisions in the Department as it pertained to court security. Viewing the facts on the current record in Bardzik’s favor, none of the usual factors indicate that Bardzik was a policymaker.”

Bardzik v. County Of Orange, 2011 WL 1108253 (9th Cir. 2011).

This article appears in the May 2011 issue.