648 A.2d 1166 | N.J. Super. Ct. App. Div. | 1994
Plaintiff, Kathleen R. Weisel, (plaintiff) served as the “Confidential Secretary,” an unclassified position, to then Secretary of State
I.
The facts of this case are not complex. Plaintiff served as confidential secretary to Secretary of State Daniel J. Dalton. The unclassified title of “confidential secretary” offers plaintiff no civil service protection and allows her dismissal “at-will.” N.J.S.A. 11A:3-4h. Prior to assuming the position of confidential secretary, plaintiff served as Dalton’s administrative assistant and at other times served as secretary to various presidents of the New Jersey State Senate. All of these prior employment positions were for office holders who were members of the Democratic Party. In addition, at various times in her career, plaintiff was actively engaged in Democratic Party affairs.
With the change in administration from Governor Florio to Governor Whitman, a new Secretary of State, defendant, was appointed. According to plaintiff, defendant retained plaintiff as her confidential secretary from January 20, 1994, until March 8, 1994, when defendant appointed Debora Banks to the plaintiffs
The Department of Personnel job specification for the position of “confidential secretary” describes the position as being under the Secretary of State’s direction and includes the following duties:
1. performs a liaison function between the Department of State and other State agencies and professional organizations on issues and programs concerning the Department;
2. prepares correspondence that may or may not require the Secretary of State’s review or signature;
3. takes and transcribes dictation, including correspondence, reports and recommendations of a confidential nature;
4. prepares information for reports, speeches and memoranda;
5. maintains confidential, personal, correspondence follow-up and other records and files;
6. when required, instructs and supervises office personnel in accomplishment and duties and develops knowledge of Department programs, policies, procedures and functions;
7. greets dignitaries and other persons coming to the Secretary of State’s office;
8. when required, coordinates tours and explains the Secretary’s duties to school children and special interest groups.
As previously noted, during the course of his tenure as Secretary of State, Dalton secured a title change from “confidential secretary” to “secretary to the commissioner,” but the duties remained the same.
Plaintiff commenced this action by filing a complaint and Order to Show Cause why temporary restraints should not be
II.
The threshold issue is whether plaintiff, in her position as confidential secretary, has a protected constitutional right of belief and association. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (the “Elrod-Branti test”), the United States Supreme Court held that the dismissal of certain public employees solely because of their partisan political affiliation infringes upon their First Amendment rights of belief and association. A “nonpolicymaking, nonconfidential government employee” cannot be discharged on the sole ground of his or her political beliefs. Elrod, supra, 427 U.S. at 375, 96 S.Ct. at 2690, 49 L.Ed.2d at 566 (Stewart, J., concurring). Conversely, “if an employee’s private political beliefs would interfere with the discharge of his public duties, [her] First Amendment rights may be required to yield to the State’s vital interests in maintaining governmental effectiveness and efficiency.” Branti, supra, 445 U.S. at 517, 100 S.Ct. at 1294, 63 L.Ed.2d at 583. The Elrod-Branti test has been adopted by the New Jersey Supreme Court
In Branti, the Court found that it was unconstitutional to discharge two assistant public defenders who were performing their jobs satisfactorily solely because of their political party affiliation. In so holding the Court stated that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti, supra, 445 U.S. at 518, 100 S.Ct. at 1295, 63 L.Ed.2d at 584. In contrast- to the public defenders, the Court offered an “obvious” example of where party affiliation would be an appropriate requirement. The Court proffered that if a state’s election laws required that precincts be supervised by two election judges of different parties, a Republican judge could legitimately be discharged solely for changing his party registration. Branti, supra, 445 U.S. at 518, 100 S.Ct. at 1294, 63 L.Ed.2d at 584.
A second justification offered in Elrod for the government’s legitimate consideration of an employee’s First Amendment rights of belief and association is political loyalty. Elrod, supra, 427 U.S. at 367, 96 S.Ct. at 2687, 49 L.Ed.2d at 562. The “political loyalty” justification is limited to policymaking positions, however, “[n]o clear line can be drawn between policymaking and non-policymaking positions ... the nature of the responsibilities is critical.” Ibid.
The “[political loyalty] justification is a matter of proof or at least argument, directed at particular kinds of jobs.” Elrod, supra, 427 U.S. at 368, 96 S.Ct. at 2687, 49 L.Ed.2d at 562 (citations omitted). Although it is the government’s burden to demonstrate an overriding interest in order to validate an encroachment on protected interests, such an overriding interest can be established through the “inherent” powers of the job classification rather than by the job as actually performed. See Collazo
When available, an official document setting forth an authoritative list of the position’s inherent powers and duties provides an invaluable aid in determining whether the employee holding that position is entitled to constitutional protection against politically motivated dismissal. Rosario Nevarez v. Torres Gaztambide, 820 F.2d 525, 528 n. 8 (1st Cir.1987) (citing Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1260 (1st Cir.1987)); See also Zold v. Twp. Of Mantua, 935 F.2d 633, 638 (3rd Cir.1991) (the responsibilities of a municipal clerk must be analyzed in light of statutory revisions designed to make position non-political).
The First Circuit is particularly instructive on the question of whether the position of “secretary” to one who is an undisputed policymaker is protected by the First Amendment while the policymaker is not. In upholding the dismissal of the executive secretary of the Commonwealth Ports Authority of Puerto Rico for “political” reasons, the court in Alamo Hernandez v. Hernandez, 664 F.Supp. 646, 648 (D.P.R.1987) applied the Elrod-Branti test which excludes from First Amendment protection a “confidential, policymaker” in the disjunctive, stating:
[T]he focus ... [should be] not only on whether plaintiffs former job can be ‘measured solely by strictly technical or professional criteria’ which would make the job nonpartisan in nature; but also whether plaintiffs position, being ‘confidential’ rather than ‘policymaker,’ put her in the unprotected ambit of ‘public employees who occupy positions of such unusually intimate propinquity relative to government leaders that, despite their non-involvement with partisanship and policymaking, political loyalty could be deemed an appropriate requirement of the job for purposes of muzzling the Elrodr-Bmnti watchdog.’
[Ibid, (citations omitted) (quoting Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 324 (1st Cir.1987)); Accord Faughender v. City of North Olmstead, 927 F.2d 909, 914 (6th Cir.1991) (“political action cannot occur without communication, a position that controls the lines of communication of a political actor must be inherently political”).]
Plaintiff argues that she was succeeded in both her job as confidential secretary to defendant and to Morris by Democrats. She concludes, therefore, that party affiliation is not a necessary
III.
A confidential secretary is privy to the most critical policy-making decisions and has access and exposure to the policymakers as well. It is a position of trust. Those charged with the responsibility of making policy for what they perceive to be the public good cannot have their attention diverted by even a suggestion that those in whom they confide, either directly or indirectly, are not committed to the same view or vision. While this case implicates significant constitutional principles, it resolves itself as a matter of common sense. By assuming a position of confidence such as the secretary to a high-level cabinet officer, an individual assumes a degree of knowledge and access which limits his or her ability to associate freely and without restriction even though such
The job specifications for the position of “confidential secretary” to the Secretary of State (and to the Assistant Secretary of State) confirms that its inherent duties are similar to those of the unprotected “confidential” position of secretary to the mayor in City of North Olmstead, supra, whose inherent duties were summarized as follows: “[The] mayor’s secretary must undertake those functions in relation to the flow of information, whether by writing, speech, or personal visit, to and from the mayor’s office, that the mayor wants the secretary to perform.” 927 F.2d at 913-914. An office holder may legitimately compel the loyalty and commitment necessary for the office holder to effectively fulfill his or her responsibilities. Plaintiffs position is not protected by the federal or state constitutions as a matter of law.
Judgment for defendant. The complaint is dismissed.
