Lead Opinion
Opinion by Judge WARDLAW; Partial Concurrence and Partial Dissent by Judge LEAVY.
OPINION
The day after his scandal-ridden third election to the position of Orange County Sheriff-Coroner, Michael Carona placed on administrative leave William Hunt, a former lieutenant officer with the Orange County Sheriffs Department (OCSD), who had dared to enter the race and campaign against Carona’s alleged culture of corruption. Carona then demoted Hunt, an action that prompted Hunt to file this 42 U.S.C. § 1983 suit claiming that his placement on administrative leave and subsequent demotion were in unconstitutional retaliation for the exercise of his First Amendment rights. The district court concluded that Hunt’s campaign speech was not protected by the First Amendment because, based upon special factual findings by a jury, Hunt fell into the narrow “policymaker” exception to the general rule against politically-motivated dismissals. Although we determine that the district court erred in this conclusion, we agree with the district court’s alternative holding that Carona is entitled to qualified immunity because a government official in his position “reasonably but mistakenly” could have believed that political loyalty was required by someone with Hunt’s job responsibilities at the time he ran against Carona. We therefore affirm the judgment of the district court.
I.
A lieutenant in the OCSD, Hunt was the Chief of Police Services for the City of San Clemente, which contracted with the OCSD for police services. In May 2005, Hunt announced that he would challenge Carona, the incumbent Orange County sheriff, in the upcoming June 6, 2006 election. During the campaign, Hunt issued public statements, radio addresses, press releases, and campaign literature critical of Carona’s performance as sheriff, including allegations of corruption in the department. Carona defeated Hunt in the June 6 election and, on June 7, placed Hunt on administrative leave pending a personnel investigation regarding his speech and conduct during the campaign. Hunt was
Hunt filed a complaint against Carona, Orange County, and other unnamed defendants alleging the violation of his First and Fourteenth Amendment rights under § 1983, as well as several causes of action under state law that were dismissed and are not at issue here. Before trial, the district court dismissed Orange County as a defendant on the ground that Hunt had abandoned his Monell municipal liability claim, and there was thus no longer a cognizable claim against the county.
Because the question of whether Hunt’s position required political loyalty was critical to whether he fell into the policy-maker liability exception to the First Amendment, the parties tried the nature of Hunt’s responsibilities and OCSD position to a jury. The district court instructed the jury to answer thirty-seven special interrogatories related to Hunt’s position. The jury concluded, among other things, that:
Hunt did not have policymaking authority over any area of policy;
Hunt did not formulate, substantially influence, or substantially influence modifications to any department-wide policy;
Hunt did not formulate or substantially influence plans to implement the broad goals of the OCSD department-wide;
Hunt did not formulate policy that affected San Clemente;
Hunt did not exercise discretion in setting policy for the OCSD in San Clemente; Hunt did not directly and regularly communicate with Carona;
Hunt did not usually speak with Carona, as Hunt generally approached his supervisor or other department officials when confronted with policy-related decisions; Hunt did not act as an advisor to Carona or the Assistant Sheriffs;
Hunt did not have authority to speak to the media without prior approval of higher-ranking officials;
Hunt did not have a vaguely worded job description; and
Neither Carona’s, the Captains’, nor the Assistant Sheriffs’ trust and confidence was necessary for Hunt to adequately perform his duties.
The jury did conclude that although Hunt did not formulate policy, he substantially influenced department policy affecting San Clemente and had discretion in how to implement policy in San Clemente within the general framework provided by the department.
The district court granted judgment as a matter of law to Carona after concluding that Hunt occupied a policymaking position for which political loyalty was an appropriate requirement based on the jury’s special findings, and thus his demotion for political reasons did not violate the First Amendment, Elrod v. Burns,
II.
We review de novo a district court’s grant of judgment as a matter of law. Summers v. Delta Air Lines, Inc.,
A.
The question before us is whether Hunt falls -within the “policymaker” exception to the First Amendment, and thus cannot avail himself of any constitutional protection against his demotion on the basis of his political speech.
The First Amendment ordinarily prohibits an elected official from firing or retaliating against an employee for his political opinions, memberships, or activities. See Branti v. Finkel,
The Supreme Court carved out an exception to this general prohibition in Elrod, permitting dismissals on the basis of political beliefs of those employees in “policymaking positions” so that “representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”
B.
We disagree with the district court’s conclusion that Hunt fell within the Elrod “policymaker” exception and was thus permissibly terminated on the basis of his campaign speech. The district court’s application of the “policymaker” exception misinterprets both the Supreme Court’s and our own doctrine establishing the contours of the exception. Although the factors set forth in Fazio,
The essential inquiry in determining whether the Elrod “policymaker” exception applies is not whether the nine Fazio factors mechanically apply, or “whether the label ‘policy-maker’ 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 effec
Here, the record fails to establish that Hunt’s party affiliation or political outlook were relevant to the effective discharge of his professional duties. Indeed, the jury — in its special findings of fact— explicitly found to the contrary. The jury found that neither Carona’s, the Captains’, nor the Assistant Sheriffs’ trust and confidence was necessary for Hunt to perform his job. The jury also found that Hunt’s political statements — which were the basis of his demotion — did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.
These findings establish that political considerations were not appropriate requirements for the effective performance of Hunt’s job and are sufficient to end the “policy-maker” inquiry. Indeed, if Hunt clearly falls outside of the intended purpose and scope of the Elrod exception on the basis of the jury’s factual findings, then we need not necessarily examine the Fazio factors in order to determine whether Hunt’s position carried certain attributes of a “policymaking” position. The binding factual findings of the jury indicate that Hunt was not — under the Supreme Court’s and our own doctrine — a “policymaker” for the purposes of the Elrod exception to the First Amendment. To set aside those facts in order to rely on an equivocal balancing of the Fazio factors is to lose sight of the forest for the trees.
Moreover, dismissals on the basis of political considerations must further a “vital government end” because they infringe upon a constitutional right. Elrod,
Here, the government has not sufficiently established the interest at stake, and has thus failed to meet its burden. Indeed, expanding the legal protection accorded to politically-motivated dismissals and demotions could very well undermine vital government interests. For example,
Nothing in the record persuasively suggests that political considerations are an appropriate requirement for Hunt’s position. Because the jury found that political considerations were not an appropriate requirement, we conclude that Hunt does not fall within the intended scope of the policymaker exception. That one can marshal colorable arguments to conclude that a majority of Fazio factors apply in a given case is not sufficient reason to widen what the Supreme Court has deemed a narrow exception to the First Amendment, particularly where, as here, such an expansion is at odds with the underlying purpose of that exception. See Elrod,
C.
Moreover, the district court’s analysis of the Fazio factors led it to wrongly conclude that Hunt’s position was that of a policymaker. Although the Fazio factors are not necessarily dispositive, they suggest Hunt was not a policymaker, and was thus entitled to constitutional protection against his retaliatory demotion.
A sheriffs lieutenant is not automatically a policymaker. Thomas,
Although the district court, by using as many as thirty-seven special interrogatories, adopted a novel approach to resolving the question of Hunt’s status, its conclusion that Hunt was a policymaker was directly contradicted by the jury’s response to those interrogatories. The jury’s findings of fact suggest that at least three Fazio factors — vague or broad responsibilities, authority to speak in the name of policy-makers, and influence on programs — strongly indicate that Hunt was not a policymaker. Indeed, the jury found that: Hunt did not have a vaguely worded job description; Hunt did not have authority to speak to the media without prior approval of higher-ranking officials;
Hunt’s power to control others, another Fazio factor, was severely limited. Hunt lacked any power to hire or promote the officers that worked under him in San Clemente. Cf. McCloud v. Testa,
The three remaining factors — contact with elected officials, public perception, and responsiveness to partisan politics and leaders — weigh in favor of classifying Hunt as a policymaker. However, despite his interactions with the San Clemente City Council and its citizenry, Hunt was at all times bound by department policy that was set by his superiors and over which he had little, if any, control or influence. His interactions with San Clemente politicians and public are insufficient to elevate his administrative role into a political role. Indeed, the jury found that, despite his responsibilities, Hunt had no regular interaction with the OCSD’s political leadership. The jury found that Hunt did not directly and regularly communicate with Carona, and that it was, in fact, unusual for the two to speak, as Hunt would commonly speak with his supervisor or other department officials when confronted with San Clemente policy-related decisions.
The picture painted by the jury’s factual findings shows that Hunt was one of sixty department lieutenants, with no authority to formulate policy, who reported to a supervisor, and who needed approval from higher-ranking officials to speak on behalf of the department. He did have heightened administrative responsibility over San Clemente, which accounts for a small fraction of Orange County’s population, where the effective performance of his job was neither compromised by his statements during the campaign, nor dependent on Carona’s trust in him. We thus conclude that the Fazio factors, with all reasonable inferences drawn in favor of Hunt, Reeves,
In Bardzik v. County of Orange,
The position at issue in Bardzik — Reserve Division Commander — is factually quite distinct from Hunt’s position in the OCSD. Unlike Hunt, Bardzik’s duties went
Bardzik also had significant programmatic authority, under which he initiated “proactive programs,” which included establishing a high-tech unit and reforming the swift-water rescue responder program. Id. at 1142. Bardzik further created department-wide policy, recommending a decentralization of the division, which was praised by Carona as one of the “highlights of the year,” as well as a new promotional protocol to eliminate favoritism. Id. Under both the stated purpose for the Elrod exception and the Fazio factors, the position evaluated in Bardzik is significantly more amenable to classification as a “policymaking” position than Hunt’s OCSD position. Thus, our analysis of the lieutenant position in Bardzik does not control our conclusion here.
D.
We agree with the district court, however, that although Carona’s demotion of Hunt in retaliation for campaign speech violated the First Amendment, Carona is entitled to qualified immunity. “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, — U.S.-,
Hunt’s First Amendment right to be free from demotion for campaigning against Carona was clearly established as of June 2006. As we held in DiRuzza, “[u]nder Elrod and Branti, decided by the Supreme Court in 1976 and 1980, and under Ninth Circuit case law decided prior to 1995, it was clearly established that a nonpolicymaking public employee in a sheriffs office is protected from retaliation for the exercise of First Amendment rights.”
We conclude, like the district court, that Carona could have reasonably but mistakenly believed that Hunt’s demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente. Although Hunt’s position had no department-wide policy-making responsibility, influence, or control, as the jury found, Hunt exercised discretion over the implementation of OCSD policy within San Clemente, influenced OCSD policy as it affected San Clemente, and formulated plans to implement OCSD policy in San Clemente. While Hunt had to secure authority before speaking with the public, when he did so, it was on behalf of the OCSD. We have carefully analyzed the development of the policymaker exception, its underlying purpose, the high burden on the government to prove that political fidelity was a necessary requirement of Hunt’s job, and balanced the nine-factor Fazio analysis that requires a fact-dependent inquiry. Even if Carona engaged in the appropriate analysis and wrongly concluded that Hunt was a policy-maker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote Hunt without violating his constitutional rights.
III.
The district court did not abuse its discretion in denying Hunt’s motion to amend the pretrial conference order. ‘We review the district court’s denial of a motion to modify a pre-trial order for abuse of discretion.” Byrd v. Guess,
The district court should consider four factors in determining whether to modify the parties’ pretrial order: (1) the degree of prejudice or surprise to the defendants if the order is modified; (2) the ability of the defendants to cure any prejudice; (3) the impact of the modification on the orderly and efficient conduct of the case; and (4) any degree of willfulness or bad faith on the part of the party seeking the modification.
Byrd,
In light of these factors, we hold that the district court did not abuse its discretion in denying the motion to amend the pretrial order. First, amendment would have caused prejudice or surprise to Carona because Hunt had abandoned any Monell claim asserted in his complaint by filing two memoranda of contentions of fact and law and a proposed pretrial order that did not include any Monell claim.
We have “consistently held that issues not preserved in the pretrial order have been eliminated from the action.” S. Cal. Retail Clerks Union and Food Emp’rs Joint Pension Trust Fund v. Bjorklund,
IV.
We affirm the district court’s judgment as a matter of law in favor of Defendant Sheriff Michael Carona.
AFFIRMED.
Notes
. Hunt argues that his reference to the actions of "Defendants” in the plural suggest that he preserved a Monell claim. Simply grouping the County in with Carona is insufficient to establish a Monell claim, which requires allegations that the County’s "customs or policies caused a violation of [Hunt’s] constitutional rights.” The pretrial documents do not reveal any contention that the County's policies or customs lead to Carona's action.
. We also affirm the denial of Hunt's motion to vacate and for a new trial pursuant to Federal Rules of Civil Procedure 59(e) and 60(b)(1), (6). Hunt fails to make any legal arguments that would satisfy the standards set forth in Rules 59(e) and 60(b)(1), (6). Hunt merely reiterates his merits arguments related to the "policymaking,” qualified immunity, and Monell issues discussed above.
Concurrence Opinion
concurring in part and dissenting in part:
Pursuant to the Supreme Court’s decision in Pearson v. Callahan,
In determining whether an employee is a policy maker, the “ultimate inquiry is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel,
Because “[t]he nature of the responsibilities is critical” to a determination whether a particular employee holds a policy-making position, Elrod v. Burns,
Job Responsibilities. The jury found that Hunt’s job responsibilities were “restricted to implementing the Department’s goals within a general framework provided by the Department,” and “restricted to implementing the City of San Clemente’s goals within a general framework provided by the Department.” However, the jury also found that Hunt was responsible for “formulating] plans to implement the broad goals of the OCSD in the City of San Clemente,” and had “discretionary authority regarding the deployment of deputy sheriffs within” the City. Hunt’s responsibilities were remarkably similar to those described in Bardzik, where the police lieutenant/policymaker was “in effect running the Reserves,” but was restricted by Carona’s instruction to “run the Reserves like every other division.” Bardzik,
Relative Pay and Technical Competence. As noted by the majority, the parties agreed the court should not propound special jury interrogatories regarding relative pay and stipulated that Hunt’s position required technical competence.
Power to Control Others. Hunt testified he supervised approximately 56 employees as Chief of Police Services for the City of San Clemente. While the parties stipulated Hunt lacked the power to hire employees under his command or determine criteria for promoting them, the jury concluded that “Hunt resolve[d] official complaints from citizens regarding the conduct of employees under his command” and “in some instances,” had “the authority to determine the type of discipline to be imposed on any subordinate under his command.” The majority distinguishes Bardzik based on the greater number of officers supervised, Bardzik was in charge of only part-time volunteers. Hunt, by contrast supervised the active police force for an entire city. Moreover, Bardzik “did not supervise the reserves while they were working in other divisions, he did not train the reserves, and he referred personnel problems to the Department’s Personnel Division.” Id. at 1141, 1146. Hunt, by contrast, was the sole supervisor of his employees, resolved complaints regarding employee conduct, and was authorized to make disciplinary decisions.
Authority to Speak in the Name of Policymakers. While the jury found that Hunt lacked authority to speak with the media without the prior approval of either higher ranking OCSD officers or the OCSD’s Public Information Officer, it also concluded that Hunt regularly interacted with the San Clemente City Council on behalf of OCSD, made comments to the media, and regularly interacted with the public as a representative of the OCSD concerning law enforcement matters in San Clemente. Thus, Hunt regularly was authorized to communicate on OCSD’s behalf with elected officials and the public. The majority apparently holds that it doesn’t matter that Hunt acted as a spokesperson for the OCSD in San Clemente.
The majority concedes the three remaining factors, contact with elected officials, public perceptions, and responsiveness to partisan politics and leaders, weigh in favor of classifying Hunt as a policymaker. The jury’s finding on these factors was that Hunt regularly interacted with the City Council and the public, the public perceived Hunt represented the OCSD in the City of San Clemente and Hunt’s position required him to be responsive to City Council members and other political leaders in Orange County.
In sum, the evidence shows that Hunt was responsible for formulating plans to implement OCSD policy in San Clemente, had the ability substantially to influence OCSD policy in the City, spoke regularly with city elected officials and citizens on behalf of OCSD, and was perceived by the public as representing OCSD in San Clemente. Thus, applying the relevant factors, Hunt was in a position for which political loyalty was an appropriate requirement and the “policymaker” exception applies.
In addition to these factors, in Bardzik we found persuasive in the policymaker determination the fact that the lieutenant actively sought to undermine the Sheriffs policies. Id. at 1148. Here, this consideration is even more significant. Bardzik merely supported Hunt in thé contested election, while Hunt campaigned on a platform accusing Carona of corruption. In Bardzik by a divided court we held that the district court erred in finding that the lieutenant who supported Hunt was not a policymaker. In this case by a divided court we hold that the district erred in finding that the candidate was a policymaker. “An elected official need not retain a high-ranking official in a position to undermine the official’s credibility and goals when neither the electorate nor an appropriate agency has determined that the official has violated the law.” Id. at 1149. Carona did not violate the Constitution when he removed Hunt from his position as Chief of Police.