Malcak v. Cooney

93 F.R.D. 830, 1982 U.S. Dist. LEXIS 11708
CourtDistrict Court, N.D. Illinois
DecidedMarch 2, 1982
DocketNo. 81 C 6549
StatusPublished
Cited by2 cases

This text of 93 F.R.D. 830 (Malcak v. Cooney) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malcak v. Cooney, 93 F.R.D. 830, 1982 U.S. Dist. LEXIS 11708 (N.D. Ill. 1982).

Opinion

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Anthony J. Malcak (“Malcak”) sues the Westchester Park District (“District”) and its four-person Board of Directors (the “Board”). Malcak claims he was fired from his job as District’s Director of Parks and Recreation (“Director”) because of his political affiliations, which are different from those of the Board members, so that the firing impinged upon his First Amendment freedom of association. Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976). Defendants have moved for a determination 1 that Malcak could be discharged for political reasons because he occupied a “policymaking” position, which Elrod and its progeny exempt from their general prohibition. For the reasons contained in this memorandum opinion and order, defendants’ motion is denied.

Facts

Malcak was Director from 1972 until June 30, 1981. In April 1981 at least two new members were elected to the four-member Board: Robert Cooley and Nicholas J. Cooney, whose affidavits say they are members of different Village-based political parties (the CAP and NOW parties, respectively). Another CAP party member, William Perch, was also elected at that time (Perch’s affidavit states he “was originally appointed as a Commissioner by the previous Board of Commissioners”). Board Member Thomas E. Stangler was first elected as an independent candidate in 1977 and was re-elected in 1981. In any event, the Complaint alleges the new Board members were “politically different” from the Board members who had retained Malcak in his job.

Malcak claims he was fired as Director on account of those “political differences” (though neither the Complaint nor his memorandum in opposition to the pending motion gives much content to the charge). Nonetheless defendants do not effectively challenge that claim.2 Accordingly this opinion will treat only with the proposition that terminating Malcak for political reasons was permissible because he was a “policymaker.” To evaluate that issue it is obviously necessary to examine the nature of Malcak’s job.

Neither side has provided the Court with any affidavit or other admissible evidence describing Malcak’s work. Instead defendants have submitted the District’s most recent Manual of Operational Policies (the “Manual”), Section IV, Part IIA of which (Appendix A to this opinion) elaborates at length on Director’s responsibilities, duties and powers. They are broad indeed, intended generally to implement the Board’s policies (of course Director is an administrator and cannot vote with the elected Board).

Director’s Status as “Policymaker”

Two recent decisions control determination of the current question for summary judgment purposes. In Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980) Justice Stevens wrote for the Court:

[832]*832[T]he ultímate 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.

Based on that test the Court went on to find that continued employment of an assistant public defender could not properly be conditioned upon his allegiance to the political party in control of the county government. That result flowed from the primary responsibility of the assistant public defender: to represent individual citizens in controversy with the state. Id. at 519, 100 S.Ct. at 1295.

Our Court of Appeals applied Branti in Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981) and elaborated on Justice Stevens’ inquiry. There Lyons Township’s Senior Citizens Coordinator had been discharged because of political affiliation. On appeal a trial court directed verdict was vacated and remanded for a factual determination of the Coordinator’s status under Elrod. Nekolny stated the standard (id. at 1170):

The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decisionmaking on issues where there is room for principled disagreement on goals or their implementation.

It made plain (id. at 1160) that “determination of status as a policymaker in many cases presents a difficult factual question.” And it also cautioned (id. at 1169-70) that a “narrow definition of who is a policymaker necessarily increases the chances of ‘undercutting] ... the implementation of the policies of the new administration, policies presumably sanctioned by the electorate’ ” (quoting Elrod, 427 U.S. at 367, 96 S.Ct. at 2687).

In Nekolny the Senior Citizens’ Coordinator was one of the Township’s four highest paid employees. His functions included conducting feasibility studies and other research as to the nature and extent of programs for senior citizens. His proposals were directed and — on at least one occasion — directly acted upon by the Town Supervisor and Board of Auditors. Upon those facts the Court of Appeals said the fact the Coordinator “did not have final decisionmaking authority is not determinative” (653 F.2d at 1170). It held a jury issue was created as to the plaintiff’s “policymaker” status.

This case too poses the sort of “difficult factual question” treated in Nekolny. Defendants’ affidavits make clear that the Board was comprised of part-time unpaid members who relied heavily on the Director to implement policy. But neither the affidavits nor the Manual 3 come really close to establishing as a matter of law that political affiliation is, in Branti terms, “an appropriate requirement for the effective performance of public office involved.” Accordingly a genuine issue of fact exists, precluding a ruling of law in defendants’ favor.

Though Director’s duties and powers are expressed in sweeping terms, the Manual says Director “serves as a technical advisor and consultant to the Park Board and administers the policies laid down by that authority” (emphasis supplied). All Director’s decisions — even those having to do with permanent personnel — are ultimately reversible by the Board. Nekolny teaches that absence of “final decisionmaking authority is not determinative,” but it does not say that factor is wholly irrelevant.

On defendants’ motion this Court must draw all reasonable inferences favorable to Malcak. One such inference from the Manual’s provisions is that Director need be no more than the Board’s executive arm — a nonpartisan “technocrat” who carries out the general policies of the Board without [833]*833fear or favor and with efficiency as his only goal. In that case, political affiliation would certainly not be “an appropriate requirement for the effective performance” of Director’s job.

Indeed this Court views not only the nature of Director’s job but also the nature of the political parties themselves as relevant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Oberweis Dairy, Inc. v. Associated Milk Producers, Inc.
553 F. Supp. 962 (N.D. Illinois, 1982)
Wetherill v. University of Chicago
548 F. Supp. 66 (N.D. Illinois, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
93 F.R.D. 830, 1982 U.S. Dist. LEXIS 11708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malcak-v-cooney-ilnd-1982.