Poindexter v. Board of County Commissioners

548 F.3d 916, 28 I.E.R. Cas. (BNA) 910, 2008 U.S. App. LEXIS 24316
Court of Appeals for the Tenth Circuit·Decided November 26, 2008·No. 19-1357·Published·Cited by 7 cases

Opinions

McCONNELL, Circuit Judge.

In 1999, newly-elected Sequoyah County Commissioner Cleon Harrell appointed Plaintiff-Appellant Bill Poindexter to serve as Road Foreman for his district. After Harrell’s retirement and the election of Defendant-Appellee Mike Huff as District 3 Commissioner in 2006, Huff demoted Poindexter and replaced him as Road Foreman with one of Huffs political supporters. This occurred after Poindexter declined to support Huff, briefly ran against Huff for the Commission seat, and then worked for opponents of Huff in the primary and general elections. Mr. Poin-dexter filed suit in district court, claiming that this demotion violated his First Amendment rights of speech and political association.1

The district court granted summary judgment for the defendants on several grounds, including that the Road Foreman job is one for which political loyalty may appropriately be required. See Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir.2000). We affirm.

I. Background

Mr. Poindexter was originally hired as Road Foreman by County Commissioner Cleon Harrell after his election to that position in 1999. Poindexter was a political supporter of Commissioner Harrell. In 2005, amidst rumors that Commissioner Harrell might resign, Mike Huff began to test the waters. In July, Mr. Huff called Mr. Poindexter and asked him if he wanted to keep his job if Mr. Huff was ultimately elected. If so, Huff suggested that the two get together to “go over some things.” In response, Mr. Poindexter expressed his full support for the incumbent Harrell and refused to campaign or speak out against him. Mr. Huff then assured Mr. Poindexter that he was not asking him to oppose Commissioner Harrell, but that if he were elected to the position he wanted Poindexter to continue to serve as Road Foreman. Poindexter responded, “that will work.”

After this conversation, “rumor” and “gossip” led Mr. Poindexter to believe that Mr. Huff actually intended to make another man, Ed Watts, his Road Foreman if elected. In October 2005, Commissioner Harrell announced his resignation, and a special election for the position was scheduled in February 2006. Concerned that he would lose his job, Mr. Poindexter ran an advertisement in the local newspaper on November 3, indicating that he intended to run for Commissioner himself. His campaign was short-lived. Mr. Poindexter decided not to run for Commissioner due to various personal problems, though he never made a formal announcement that he was no longer running.

Upon the announcement of Poindexter’s candidacy, Mr. Huff called Mr. Poindexter and told him, “I thought you were going to be my foreman.” Poindexter responded that he had heard that Ed Watts was going to be Huffs foreman. Huff then stated, “well, I talked to him first. I’ll find someone else to help me.” What happened at this point is disputed. The defendants point to evidence that Mr. Huff asked Mr. Poindexter repeatedly to be his Road Foreman if he was elected, and Mr. [919] Poindexter refused. The plaintiff denies that he told Huff he did not want to be retained in the position if Huff were elected.

A few weeks later, on November 14, Mr. Huff announced his candidacy for County Commissioner, stating as part of that announcement that Ed Watts would be his Road Foreman. Watts endorsed Huffs candidacy and gave him political support. Mr. Huff won the election. The day he was sworn into office, he hired Mr. Watts as his Road Foreman. That same day, he told Mr. Poindexter that he would give him a job paying $10,000 less than his old Road Foreman position. Commissioner Huff gave Mr. Poindexter two weeks of paid vacation to decide whether to take the job, and he ultimately declined the offer.

II. Analysis

The Supreme Court has held that many public employees have the right, with certain limitations, to engage in political activities opposed to their elected superiors without penalty to their jobs. See Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Recognizing, however, that democratic governance requires that the voters be able to influence the conduct and the selection of policy-making and politically significant officials — to “throw the rascals out” — the Court has held that political loyalty “is an appropriate requirement for the effective performance” of some government positions. Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The two-part test laid out in Elrod and further refined in Branti determines whether a government employee’s demotion violates his right to free political association. To survive summary judgment, an employee needs to show a “genuine dispute of fact that (1) political affiliation and/or beliefs were ‘substantial’ or ‘motivating’ factors” in his demotion, and (2) his position did not require political allegiance. Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir.2000).

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Poindexter v. Board of County Commissioners, 548 F.3d 916, 28 I.E.R. Cas. (BNA) 910, 2008 U.S. App. LEXIS 24316 (10th Cir. 2008).

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