Knight v. Vernon , 214 F.3d 544 ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KATHY W. KNIGHT,
Plaintiff-Appellant,
v.
C. D. VERNON, individually and in
his official capacity as Sheriff of
Rockingham County; ROCKINGHAM
No. 98-2514
COUNTY,
Defendants-Appellees.
AMERICAN CIVIL LIBERTIES UNION OF
NORTH CAROLINA LEGAL FOUNDATION,
INCORPORATED,
Amicus Curiae.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CA-97-755-1)
Argued: September 23, 1999
Decided: June 2, 2000
Before WIDENER and MICHAEL, Circuit Judges, and
Frank J. MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Michael wrote the opinion, in which Senior Judge Magill
joined. Judge Widener wrote a separate opinion, concurring in part
and dissenting in part.
COUNSEL
ARGUED: Robert Mauldin Elliot, ELLIOT, PISHKO, GELBIN &
MORGAN, P.A., Winston-Salem, North Carolina, for Appellant.
James Redfern Morgan, Jr., WOMBLE, CARLYLE, SANDRIDGE &
RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellees. ON
BRIEF: Martha A. Geer, PATTERSON, HARKAVY & LAW-
RENCE, L.L.P., Raleigh, North Carolina, for Amicus Curiae.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
This is a political firing case. Kathy Knight, a jailer in Rockingham
County, North Carolina, claims the sheriff fired her for political dis-
loyalty. She sued the sheriff (in his individual and official capacities)
and the county under 42 U.S.C. § 1983, alleging that her First
Amendment and due process rights were violated. The complaint also
included claims under the North Carolina Constitution and common
law. The district court ruled against Ms. Knight on the federal claims,
granting summary judgment to the sheriff and the county. It then dis-
missed the state law claims, declining to exercise supplemental juris-
diction. We reverse the award of summary judgment to the defendants
on the First Amendment claim because political allegiance is not an
appropriate job requirement for a jailer. We affirm the award of sum-
mary judgment to the county on the federal claims because the sheriff
was not acting for the county when he fired Ms. Knight. We also
affirm the summary judgment for the sheriff on the federal due pro-
cess claim because Ms. Knight did not have a property interest in her
job. Accordingly, the case is remanded for trial on the First Amend-
ment claim against the sheriff and for reinstatement of the state law
claims.
I.
The facts about Ms. Knight's job duties as a jailer are not disputed.
The other facts are recited, and some justifiable inferences are drawn,
in favor of Ms. Knight, the nonmovant in the summary judgment pro-
ceedings. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
2
Sheriffs run the county jails in North Carolina. In September 1989
the Rockingham County Sheriff, C.D. Vernon, hired Kathy Knight as
a Jailer I. At the job interview Sheriff Vernon, who was a Democrat,
stressed the importance of Ms. Knight's political loyalty to him. The
sheriff told her, "When it comes time to vote, make sure you vote for
who signs your check." The sheriff added that he"ha[d] ways of find-
ing out" how his employees voted.
As a jailer Ms. Knight did not take an oath of office like a deputy
sheriff, who is a sworn law enforcement officer. Nor did Ms. Knight
receive the extensive training required for sworn deputies. She did not
have a written contract, a fixed term of employment, or civil service
job protection. Shortly after beginning her job, she was given a copy
of the Rockingham County employee handbook. The handbook
included discipline and grievance procedures.
As a jailer Ms. Knight was responsible for the processing, supervi-
sion and care, and transportation of inmates. Ms. Knight's processing
duties included fingerprinting new inmates, obtaining their personal
data (addresses, next of kin, etc.), marking and storing their personal
belongings, routing them for physical examinations, and arranging for
their initial baths and changes into clean clothing. Ms. Knight's daily
supervision and care duties involved monitoring inmates every half
hour, distributing and logging their medications and supplies, serving
them food, and managing their visitors. Occasionally, Ms. Knight
filled in as a cook when help was short in the jail's kitchen. Finally,
Ms. Knight assisted in transporting inmates to prisons and medical
facilities.
Sheriff Vernon acknowledged that Ms. Knight's position (Jailer I
or II) was "the lowest level . . . in the jail." Ms. Knight reported to
her shift supervisor, who in turn reported to the assistant chief jailer.
The assistant chief jailer answered to the chief jailer, a captain who
was responsible for one of three departments in the sheriff's office.
In this hierarchy, only the captain (and chief jailer) reported to Sheriff
Vernon, and the sheriff dealt with this captain on matters of jail policy
and management. Sheriff Vernon admitted that he never met with Ms.
Knight to consider any decision about the operation of the jail.
3
During her time as a jailer Ms. Knight received consistently posi-
tive performance evaluations. She was commended on several occa-
sions for her levelheaded responses to emergencies, particularly in
one hostage situation. After several years Ms. Knight was promoted
to the position of Jailer II. The promotion brought no changes in her
job duties, however.*
In the late winter and spring of 1994 Sheriff Vernon ran for reelec-
tion in the Democratic primary to be held on May 3rd. His chief
opponent was Sam Page, a former deputy and officer in the sheriff's
department. In January 1994, just as the primary campaign was begin-
ning, the Greensboro News and Record ran a story charging that
money belonging to inmates in the county jail had been mishandled
by jail employees. The story, entitled "Jail Workers Used Inmates'
Money For Loans," reported that jail employees cashed personal
checks from the cash fund (called the "inmate trust fund") held on
behalf of inmates. Often, weeks went by before these personal checks
were cashed at a bank so that the cash level of the fund could be
restored. Jail employees in effect got interest-free loans at the expense
_________________________________________________________________
*The record is clear that Ms. Knight was unsworn the entire time she
was a jailer. Specifically, Ms. Knight did not take an oath as a law
enforcement officer when she was promoted to Jailer II. As she said in
her affidavit:
During my entire employment with the Sheriff's Department
and the county, I remained an unsworn jailer. This meant that I
never took the training and received the certification to be a
sworn deputy. I had asked to go to school, but my request was
never granted. Thus, I was never sworn in, and did not have the
powers and authority of a sworn law enforcement officer.
Sergeant Reggie King, Ms. Knight's shift supervisor, testified that four
jailers (all Jailer IIs) worked under him and three of them, including Ms.
Knight, were unsworn. The fourth jailer was sworn in under "grandfa-
ther" status because he had worked with a law enforcement office before
sworn officers were required to take basic training. In the face of this evi-
dence, we cannot agree with the dissent that Ms. Knight's statement that
she was unsworn is "inherently incredible," post at 19, or that Sheriff
Vernon was mistaken when he testified that Ms. Knight was not a sworn
law enforcement officer, see post at 19 n.1. In any event, the sheriff testi-
fied that a Jailer I and Jailer II performed the same duties.
4
of inmates. Sheriff Vernon ordered the practice stopped as soon as he
learned of it. Ultimately, the sheriff blamed Ms. Knight for leaking
the story to the press. Ms. Knight denied that she was responsible, and
her version of what happened follows.
Jail inmates were not allowed to keep more than $20 in their cells.
The rest of their money was placed in the cash drawer in the assistant
chief jailer's desk, and the amount credited to each inmate was writ-
ten in a ledger. Ms. Knight knew that her co workers were using the
inmate trust fund to cash their personal checks. In October 1993 Ms.
Knight saw Sergeant King, her shift supervisor, make copies of the
checks and put the copies in his locker. This alarmed Ms. Knight, so
she then made copies of the checks for herself "in case something
happened." In December 1993 Ms. Knight was present when Page
(Vernon's opponent) visited the jail to write a bail bond. At that time
Ms. Knight heard Sergeant King tell Page that jail employees were
cashing checks on the inmate trust fund. King also showed Page the
checks being held in the cash drawer. On her next day off Ms. Knight
talked to a friend, magistrate Roger Hair, about the trust fund matter.
Hair said that the check cashing practice could be illegal, and he rec-
ommended that Ms. Knight warn her supervisor, Sergeant King. Ms.
Knight talked with Sergeant King during her next shift, and King
brought the matter to Sheriff Vernon's attention without further delay.
In addition to putting a stop to the check cashing, Vernon instructed
the chief jailer to open a bank account for inmate funds. The sheriff
did not begin any investigation of the trust fund matter at that time
(December 1993). Indeed, Sheriff Vernon advised the newspaper that
no one would be disciplined.
We now return to the primary campaign for sheriff. Throughout the
campaign season Sheriff Vernon's top officers used shift meetings to
promote his reelection effort. Sheriff's department employees were
told, "Remember who you're working for. The man gave you a job."
Department employees, including Ms. Knight, were urged to contrib-
ute money to Sheriff Vernon's campaign, put his signs in their yards,
attend bean dinners and other political meetings, make campaign
appearances for the sheriff, and work the polls on election day.
As the campaign dragged on, a rumor circulated in the department
that Kathy Knight and her husband (deputy sheriff Bobby Knight)
5
were supporting Sam Page for sheriff. The rumor was fanned by the
fact that the Knights, who were friends with Page, had not demon-
strated any open support for Sheriff Vernon. When Bobby Knight
learned of the rumor in April 1994, he met with the sheriff. Mr.
Knight denied the rumor and told the sheriff that he and his wife were
worried about their jobs. Mr. Knight asked what he"needed to do to
make it right." The sheriff hinted that Mr. Knight should contribute
at least $100 to his campaign. The meeting ended with the sheriff say-
ing that he wanted to see both Mr. Knight and his wife the next day.
The next day, Sheriff Vernon began his meeting with the Knights
by accusing Kathy Knight of going to the press with the inmate trust
fund problem. Ms. Knight denied this, saying she would take a poly-
graph examination to prove her truthfulness. The sheriff next accused
the Knights of supporting Sam Page. In particular, the sheriff noted
that they did not even have a "Vote for Vernon" sign in their yard.
The Knights replied that they were neutral in the sheriff's race but
that they were supporting Sheriff Vernon by doing good jobs as dep-
uty and jailer. The sheriff's dissatisfaction with this explanation was
apparent at once, and Mr. Knight asked him again what he and his
wife should do. The sheriff answered that the Knights should "throw
[them]selves completely into his campaign." The sheriff mentioned
specifically that they should attend "every one" of his campaign func-
tions and put up his posters. As the Knights left the meeting, Sheriff
Vernon said that "even if [the Knights] did show some support for
him at [that] point, it would not put [them] in his good graces." The
Knights were convinced that they would be fired right after the elec-
tion.
Sheriff Vernon won the Democratic primary on May 3, 1994.
Because there was no Republican running for sheriff, his general elec-
tion victory was all but assured. Three weeks later, the sheriff
instructed Detective Jim Kendrick to investigate the leak of the
inmate trust fund problem to the news media. The investigation
focused on Kathy Knight. Detective Kendrick's report implied that
Ms. Knight was complicit in a scheme to bring the trust fund problem
to the attention of the press and the public. From the detective's
report, Sheriff Vernon concluded that the problem"ended up in the
papers" because of Ms. Knight's actions. Vernon fired her on July 15,
1994. (At about the same time the sheriff fired Bobby Knight and five
6
other employees who had not supported him in the primary.) Ms.
Knight filed a grievance with Rockingham County, but it was never
heard.
Ms. Knight sued Sheriff Vernon and Rockingham County under 42
U.S.C. § 1983, alleging (1) a violation of the First Amendment
because she was fired for failing to support the sheriff in the primary
and (2) a violation of the Due Process Clause because she was not
afforded a hearing. In granting summary judgment to the defendants
on Ms. Knight's (First Amendment) political firing claim, the district
court relied on Jenkins v. Medford, 119 F.3d 1156, 1164 (4th Cir.
1997) (en banc) (holding that a deputy sheriff is a policymaker who
"may be lawfully terminated for political reasons under the Elrod-
Branti exception to prohibited political terminations"), cert. denied,
522 U.S. 1090 (1998). Specifically, the district court concluded that
"the role of jailer is sufficiently similar to the role of deputy sheriff
to bring jailers within the policymaker exception to the Elrod-Branti
rule." Knight v. Vernon, 23 F. Supp. 2d 634, 646 (M.D.N.C. 1998).
The district court also granted summary judgment to the county on
Ms. Knight's § 1983 claim because the sheriff was not exercising
authority on behalf of the county (or acting pursuant to a policy of the
county) when he fired Ms. Knight. Finally, the court granted the sher-
iff's motion for summary judgment on Ms. Knight's due process
claim under the United States Constitution, holding that she had no
property interest in her job as jailer. (Once the district court disposed
of the federal claims, it dismissed Ms. Knight's state law claims as
a matter of housekeeping.) Ms. Knight appeals.
II.
A.
1.
Ms. Knight first argues that the district court erred when it denied
her First Amendment protection for her political beliefs. We agree
and hold that a sheriff cannot insist on political loyalty as a job
requirement for a county jailer like Ms. Knight.
7
In Jenkins v. Medford, 119 F.3d 1156, 1160 (4th Cir. 1997) (en
banc), cert. denied, 522 U.S. 1090 (1998), we emphasized that a pub-
lic employee's political firing claim must be "analyzed under the rea-
soning developed" in Elrod v. Burns, 427 U.S. 347 (1976), and Branti
v. Finkel, 445 U.S. 507 (1980). The First Amendment, Elrod and
Branti make clear, prohibits the firing of public employees "solely for
the reason that they were not affiliated with" a particular political
party or candidate. Branti, 445 U.S. at 517 (quoting Elrod, 427 U.S.
at 350). There is, however, a narrow exception when party affiliation
(or political allegiance) constitutes "an acceptable requirement for . . .
government employment." Id. Specifically, a public employee may be
fired because of her politics if her employer "can demonstrate that
party affiliation [or political allegiance] is an appropriate requirement
for the effective performance of the public office involved." Id. at
518.
In Jenkins we thrashed out (en banc) whether the Elrod-Branti
exception allowed a North Carolina sheriff to fire two deputies
because they failed to support him in an election. In deciding whether
a deputy sheriff's political allegiance to his sheriff is an appropriate
job requirement, we examined the political role of sheriffs, the spe-
cific duties of their deputies, and the "relationship between the sheriff
and his deputies, as that relationship affects the execution of the sher-
iff's policies." Jenkins, 119 F.3d at 1161. We began by noting that
when sheriffs are elected by popular vote, as they are in North Caro-
lina, they have an obligation to the voters to implement their espoused
policies. Next, in examining the duties of deputies and their roles in
assisting a sheriff, we canvassed the country generally and looked at
North Carolina in particular. As a general matter, we found (1) that
deputies play a special role in implementing a sheriff's law enforce-
ment policies, (2) that some deputies are usually included in a sher-
iff's core group of advisors, (3) that deputies (particularly those on
patrol) exercise "significant discretion" in performing their jobs, (4)
that a sheriff relies on his deputies to foster public confidence in law
enforcement, (5) that a sheriff relies on his deputies to provide him
with "truthful and accurate information," which is necessary for the
sheriff to fulfill his duties, and (6) that deputies are often the general
agents of a sheriff, who is civilly liable for their acts. Id. at 1162-63.
Turning to North Carolina, we found that a county sheriff is "an
important political figure," with special responsibility for public
8
safety and welfare. Id. at 1163. A North Carolina deputy sheriff in
turn "hold[s] an office of special trust and confidence, acting in the
name of and with powers coterminous with his principal, the elected
sheriff." Id. (quoting N.C. Gen. Stat.§ 17E-1).
Our "examination of the role of deputy sheriffs[led] us to conclude
that in North Carolina, the office of deputy sheriff is that of a policy-
maker, and that deputy sheriffs are the alter ego of the sheriff gener-
ally, for whose conduct he is liable." Id. at 1164. We therefore
concluded that political allegiance to the sheriff is an appropriate job
requirement for a deputy. As a result, we held that"North Carolina
deputy sheriffs may be lawfully terminated for political reasons under
the Elrod-Branti exception to prohibited political terminations." Id.
We were careful, however, to qualify our holding as follows: "We
limit dismissals based on today's holding to those deputies actually
sworn to engage in law enforcement activities on behalf of the sheriff.
We issue this limitation to caution sheriffs that courts examine the job
duties of the position, and not merely the title, of those dismissed."
Id. at 1165 (emphasis added).
The central message of Jenkins is that the specific duties of the
public employee's position govern whether political allegiance to her
employer is an appropriate job requirement. We turn, then, to Ms.
Knight's duties as a jailer, which are undisputed. Sheriff Vernon
admitted that she had the "lowest level" position in the county jail.
When new inmates arrived, Ms. Knight filled out the paperwork nec-
essary for their admission to the jail. Thereafter, she saw to their
needs by feeding them (sometimes even cooking for them), distribut-
ing their medicine, and monitoring their personal hygiene. Her guard
duties involved checking on each inmate every half hour. Ms.
Knight's contact with the public was limited to overseeing visitors to
the jail and occasionally transporting inmates to prisons or medical
facilities. Her duties did not change after she was promoted from
Jailer I to Jailer II.
The responsibilities of a jailer, such as Ms. Knight, are routine and
limited in comparison to those of a deputy sheriff, who may be fired
for his political affiliation. We noted in Jenkins that a deputy is a
sworn law enforcement officer. This means that a deputy has the gen-
eral power of arrest, a power that may be exercised in North Carolina
9
only by an officer who receives extensive training in the enforcement
of criminal law. See N.C. Admin. Code tit. 12, r. 10B.0103(17). A
sworn deputy is the sheriff's alter ego: he has"powers coterminous
with his principal, the elected sheriff." N.C. Gen. Stat. § 17E-1
(quoted in Jenkins, 119 F.3d at 1163). The authority of a jailer, on the
other hand, is much more circumscribed. For example, exercising the
power of arrest is not one of the job duties of a jailer. Her duties are
simply to supervise and care for inmates in the county jail. See N.C.
Gen. Stat. § 153A-224. Her training, which is much more limited than
that of a deputy, is concentrated on matters of custodial care and
supervision. Compare N.C. Admin. Code tit. 12, r. 10B.0502 with
N.C. Admin. Code tit. 12, r. 10B.0601.
Ms. Knight was not out in the county engaging in law enforcement
activities on behalf of the sheriff. She was not a confidant of the sher-
iff, and she did not advise him on policy matters. Nor was she
involved in communicating the sheriff's policies or positions to the
public. See Jenkins, 119 F.3d at 1164 (noting that "[i]f the position
resembles a policymaker, a communicator, or a privy to confidential
information, then loyalty to the sheriff is an important requirement for
the job") (internal quotation marks omitted). Ms. Knight worked
mostly at the jail performing ministerial duties. She was therefore not
entrusted with broad discretion. The sheriff did not rely on her for
assistance in implementing his law enforcement platform.
For all of the foregoing reasons, we hold that Ms. Knight's political
allegiance to Sheriff Vernon was not an appropriate requirement for
the performance of her job as jailer. The First Amendment therefore
protects her from discharge for failing to support Sheriff Vernon in
the primary. Our position, by the way, is in line with the three other
circuits that have considered whether political loyalty is an appropri-
ate job requirement for a jailer. See Sowards v. Loudon County, 203
F.3d 426, 430 (6th Cir. 2000) (holding that "[b]ecause political con-
siderations are not appropriate for the position of a jailer . . . the
Elrod/Branti exception to the First Amendment rule protecting public
employees against politically-based dismissals does not apply");
Dickeson v. Quarberg, 844 F.2d 1435 (10th Cir. 1988) (holding that
political affiliation is not a proper job requirement for a head jailer);
Terry v. Cook, 866 F.2d 373, 378 (11th Cir. 1989) (noting that posi-
tions such as jailer and clerk "traditionally revolve around limited
10
objectives and defined duties and do not require those holding them
to function as the alter ego of the sheriff or ensure that the policies
and goals of the office are implemented").
In announcing our holding, we are mindful that sheriffs need jailers
who are dedicated and competent. But Ms. Knight did not have to
support Sheriff Vernon in the primary in order to perform her job as
jailer with the requisite dedication and competence. Still, if Sheriff
Vernon fired Ms. Knight for inadequate job performance or for some
other non-political reason, nothing we say here would invalidate her
discharge. We simply reverse the district court's decision that Ms.
Knight could be fired because of her politics.
2.
Our dissenting colleague suggests first that Ms. Knight's duties as
a jailer "did not differ sufficiently to distinguish her stature from that
of the deputy sheriffs at issue in Jenkins[v. Medford]." Post at 16.
According to the dissent, a jailer's duties measure up to a deputy's
because (1) a jailer "has a certain amount of discretion" in dealing
with the custody and care of inmates, (2) she "implement[s] the sher-
iff's policy with respect to the jail and to inmate treatment," and (3)
she "communicates the sheriff's policy regarding . . . prison manage-
ment" to jail visitors. Post at 17-18. These responsibilities, however,
are much more circumscribed than those of a deputy sheriff, and their
limited scope prevents a jailer from being transformed into a policy-
making official. It is true that a jailer must exercise some judgment
and common sense in guarding and caring for inmates. But a jailer
does not exercise the "significant discretion" that Jenkins found to be
accorded to deputy sheriffs, who "make some decisions that actually
create policy." Jenkins, 119 F.3d at 1162 (citation omitted). Here, Ms.
Knight was not consulted about jail policy, and she did not make pol-
icy. She was completely shut out of Sheriff Vernon's policymaking
processes. In addition, Ms. Knight did not have any significant lee-
way in implementing the sheriff's policies and procedures for running
the jail. The policies and procedures were set by her superiors; she
simply followed orders. See Sowards, 203 F.3d at 438 (noting that
jailers "have no role in the policymaking process of the prison;"
rather, "they are supervised by and must follow the directives" of their
superiors). Finally, a pledge from Ms. Knight to vote for Vernon was
11
not a necessary requirement for her to be effective in communicating
with visitors to the jail. Sheriff Vernon, of course, had the right to
expect Ms. Knight to be courteous and careful in dealing with visi-
tors. Nevertheless, Ms. Knight's contact with visitors did not make
her a "communicator" who was stripped of First Amendment protec-
tion. See Akers v. Caperton, 998 F.2d 220, 224 (4th Cir. 1993) (noting
that "contact [with the public] alone does not make an employee a
`communicator' within the meaning of Elrod -- a telephone operator,
a tour guide at the State Capitol, and a bus driver are all in constant
contact with the public -- however, no one would seriously argue that
the positions are outside Elrod and Branti's protection"). "Communi-
cators" who lack Elrod/Branti protection are those who perform
duties such as speechwriting for a public official or explaining his
views to the press. See Branti, 445 U.S. at 518.
The dissent next contends that Ms. Knight was Sheriff Vernon's
alter ego because as a jailer she had "the special trust and confidence
of the sheriff," N.C. Gen. Stat. § 17E-2(3)(b), and because the sheriff
was liable for her conduct. A jailer is not the sheriff's "second self"
in the sense that a deputy is. In Jenkins we noted that under North
Carolina law a deputy has "powers coterminous with his principal, the
elected sheriff." 119 F.3d at 1163 (quoting N.C. Gen. Stat. § 17E-1).
A jailer's circumscribed powers, as we have demonstrated, do not
begin to approach the broad powers given to a deputy. Moreover,
"[w]hile [the sheriff] is civilly liable for jailers' actions, this is not
sufficient to characterize them as his alter-ego" for all purposes. See
Sowards, 203 F.3d at 438 (internal quotation marks omitted).
Finally, the dissent insists that Ms. Knight must have taken the
same oath as a deputy sheriff. The record does not support such a con-
clusion. However, even if Ms. Knight did take such an oath, it would
not change our decision. As we emphasized in Jenkins, we "examine
the job duties of the position," 119 F.3d at 1165, and Ms. Knight's
duties as a jailer were essentially custodial. She simply lacked the
special status of a deputy sheriff, who is empowered to stand in for
the sheriff on a broad front. According to the Supreme Court, "the
question is whether the hiring authority can demonstrate that [political
loyalty] is an appropriate requirement for the effective performance
of the public office involved." Branti, 445 U.S. at 518. Sheriff Vernon
12
failed to meet this burden. Again, Ms. Knight could do an effective
job as a jailer without supporting the sheriff in the primary.
B.
Sheriff Vernon and Rockingham County argue that even if Ms.
Knight was in a protected position, she did not proffer sufficient evi-
dence on summary judgment to show that she was fired for political
reasons. We disagree.
Ms. Knight proffered the following specific facts. See Fed. R. Civ.
P. 56(e). Sheriff Vernon asked for Ms. Knight's political loyalty when
he hired her. During the 1994 primary campaign the sheriff's top offi-
cers used shift meetings to solicit department employees for campaign
contributions for the sheriff and to prod them to work in his cam-
paign. Later in the campaign Sheriff Vernon demanded a meeting
with Ms. Knight and her husband (a deputy) and accused them of sup-
porting his opponent. The sheriff urged the Knights to throw them-
selves into his campaign, but he hinted darkly at the end of the
meeting that there was little they could do to get back in his good
graces.
Within a month after the May 1994 primary Sheriff Vernon
ordered an investigation into press leaks about jail employee abuses
of the inmate trust fund. The investigation was launched even though
the sheriff had indicated before the election that the matter was closed
and that no one would be disciplined. The investigation did not focus
on those who misused (or permitted the misuse of) the trust fund.
Rather, it focused on those (Ms. Knight and one other person) whom
the sheriff believed were responsible for exposing the scheme to the
public during the campaign. Ms. Knight was fired on July 15, 1994,
at the conclusion of the investigation. The sheriff claims that Ms.
Knight was fired because she "routed information" about the trust
fund scandal to the newspaper. A reasonable jury, however, could
conclude from these facts that the trust fund investigation was a pre-
text for firing Ms. Knight and that the real reason for her discharge
was her failure to support the sheriff in the primary. See Anderson v.
Liberty Lobby, 477 U.S. 242, 247-52 (1986). We therefore remand for
a trial on Ms. Knight's First Amendment claim that she was fired for
political reasons. (Because we affirm the award of summary judgment
13
for the county on a different ground, see below, the trial on this claim
will proceed only against Sheriff Vernon.)
III.
Ms. Knight next argues that the district court erred in granting sum-
mary judgment to Rockingham County on her § 1983 claims because
Sheriff Vernon, and not the county, had the "final policymaking
authority" to fire her. We agree with the district court and affirm on
this issue.
Rockingham County may be held liable under 42 U.S.C.§ 1983 if
Sheriff Vernon's action in firing Ms. Knight represented official
county policy. See McMillian v. Monroe County , 520 U.S. 781, 783-
85 (1997); Monell v. Department of Social Servs. , 436 U.S. 658, 694
(1978). In determining whether the county is liable for the sheriff's
action, we review how state law allocates power and responsibility.
See McMillian, 520 U.S. at 786; Dotson v. Chester, 937 F.2d 920, 924
(4th Cir. 1991). We focus our inquiry on the particular policy area in
question, here personnel policy. See McMillian , 520 U.S. at 785.
North Carolina law vests the sheriff, not the county, with authority
over the personnel decisions of his office. Although the county board
of commissioners may fix the number of salaried employees within
the sheriff's office, the sheriff "has the exclusive right" under N.C.
Gen. Stat. § 153A-103 (1998) "to hire, discharge, and supervise the
employees in his office." North Carolina courts interpret this statute
to preclude county liability for personnel decisions made by sheriffs.
For example, the Court of Appeals of North Carolina, in applying
§ 153A-103, has held that a sheriff's dispatcher is not an employee of
the county and that the county is not liable for the dispatcher's dis-
charge. See Peele v. Provident Mut. Life Ins. Co., 368 S.E.2d 892, 894
(N.C. App.), appeal dismissed, review denied by 373 S.E.2d 547(N.C. 1988). The Peele court concluded that§ 153A-103 "gives every
indication that the control of the employees hired by the sheriff is
vested exclusively in the sheriff." Id. See also Spencer v. Byrd, 899
F. Supp. 1439, 1442 (M.D.N.C. 1995) (citing Peele and holding that
a sheriff's deputy in North Carolina cannot bring a breach of contract
claim against a county because the sheriff, not the county, has control
over the deputy); Clark v. Burke County, 450 S.E.2d 747, 749 (N.C.
14
App. 1994) (relying on Peele to hold that"any injury resulting from
[the deputy sheriff's] actions in this case cannot result in liability for
Burke County and summary judgment is therefore affirmed for Burke
County"). Because Sheriff Vernon, and not Rockingham County, had
exclusive responsibility for discharging Ms. Knight, the district court
properly granted summary judgment for the county on the § 1983
claims.
IV.
Last, Ms. Knight argues that the district court erred in granting
summary judgment to Sheriff Vernon on her claim that she was
denied procedural due process in violation of the United States Con-
stitution when she was fired without a hearing. Ms. Knight maintains
that the county's employee handbook, which contains grievance pro-
cedures, gave her a property interest in her job, thus entitling her to
procedural due process. Again, we look to state law to determine
whether she had a property interest in her job. See Pittman v. Wilson
County, 839 F.2d 225, 227 (4th Cir. 1988) (quoting Bishop v. Wood,
426 U.S. 341, 344 (1976)). North Carolina is an at-will employment
state. See Kurtzman v. Applied Analytical Indus., Inc., 493 S.E.2d
420, 422 (N.C. 1997), reh'g denied, 502 S.E.2d 594 (N.C. 1998).
Thus, in North Carolina "an employer's personnel manual or policies
are not part of an employee's contract of employment unless
expressly included in that contract." Soles v. City of Raleigh Civil
Serv. Comm'n, 480 S.E.2d 685, 687 (N.C. 1997). Because Ms. Knight
does not contend that the employee handbook was expressly incorpo-
rated into any employment contract, the handbook did not give her a
property interest in her job. See id. at 688; see also Jackson v. Long,
102 F.3d 722, 728-30 (4th Cir. 1996) (concluding that North Carolina
jailers "have no property right in continued employment"). Finally,
because the handbook's grievance procedures were not enacted as a
county ordinance, Ms. Knight's case is distinguishable from other
cases that recognize a property interest when a personnel policy has
been codified as an ordinance. See, e.g., Paschal v. Myers, 497 S.E.2d
311, 315 (N.C. App. 1998); cf. Wuchte v. McNeil , 505 S.E.2d 142,
145 (N.C. App. 1998) (noting the difference between ordinances and
unilaterally promulgated policies). The district court was correct to
conclude that the handbook did not give Ms. Knight a protectable
15
property interest in her job, and the court properly awarded summary
judgment to the sheriff on the federal due process claim.
V.
In sum, we hold that political allegiance is not an appropriate job
requirement for a jailer, and we reverse the district court's determina-
tion to the contrary. We therefore remand for a trial on Ms. Knight's
claim against Sheriff Vernon (in his individual and official capacities)
that he fired her for political reasons in violation of the First Amend-
ment. We affirm the district court's grant of summary judgment to
Rockingham County on the two § 1983 claims and to Sheriff Vernon
on the § 1983 due process claim. Because Ms. Knight's First Amend-
ment claim against the sheriff survives, her state law claims should
be reinstated for further proceedings.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
WIDENER, Circuit Judge, concurring and dissenting:
I concur in parts III and IV of the majority opinion, but to the rest
of the opinion, I must respectfully dissent.
I.
The majority bases its decision on the limiting of the decision in
Jenkins v. Medford, 119 F.3d 1156, 1165 (4th Cir. 1997) (en banc),
to sworn law enforcement deputies for the purpose of determining
whether those deputies might have been fired for political reasons
under Elrod v. Burns, 427 U.S. 347, 367 (1976), and on its finding
that Mrs. Knight's activities as a detention officer in North Carolina
were primarily ministerial. I believe the district court properly deter-
mined that Mrs. Knight's duties as a detention officer did not differ
sufficiently to distinguish her stature from that of the deputy sheriffs
at issue in Jenkins. I do not agree with the majority's technical dis-
tinctions between the position of detention officer and deputy sheriff;
indeed, on the facts of this case there are none of consequence.
16
In Jenkins, we found several characteristics important in our deter-
mination that deputy sheriffs are policymakers. We noted that deputy
sheriffs are the alter egos of the sheriff; therefore, the sheriff is liable
for the deputy's actions. Jenkins, 119 F.3d at 1164. We also found
that deputy sheriffs exercised discretion in determining how to com-
plete their law enforcement duties. Jenkins, 119 F.3d at 1165. Deputy
sheriffs foster public confidence in law enforcement and make deci-
sions that create policy. Jenkins, 119 F.3d at 1162. In sum, we
acknowledged that persons hired as policymakers and persons privy
to private information can be fired for political reasons. Jenkins, 119
F.3d at 1164.
In North Carolina, one of the sheriff's principal statutory duties is
the care and custody of the jail. N.C. Gen. Stat.§ 162-22. The North
Carolina Administrative Code defines a detention officer as a "person
performing responsibilities . . . which include but are not limited to
the control, care, and supervision of any inmates incarcerated in the
county jail . . . under the direct supervision and management of the
sheriff." N.C. Admin. Code tit. 12, r. 10B.0103. Under North Carolina
law, detention officers are the alter egos of the sheriff; therefore, the
sheriff is liable for the detention officers' actions. See Sutton v. Wil-
liams, 155 S.E. 160 (N.C. 1930); Davis v. Moore, 2 S.E.2d 366 (N.C.
1939); Dunn v. Swanson, 7 S.E.2d 563 (N.C. 1940). Detention offi-
cers are engaged in law enforcement activities concerning the super-
vision of inmates. See N.C. Gen. Stat. § 153A. North Carolina law
also considers both deputy sheriffs and detention officers to be justice
officers. N.C. Gen. Stat. § 17E-2(3)(a) & (b).
The detention officer manages inmates and those who visit them.
Through this contact, she communicates the sheriff's policy regarding
inmates and prison management, not unlike the way deputy sheriffs
communicate the sheriff's law enforcement policy with the members
of the public they deal with in doing their duty. Even if some deten-
tion officers do not have the power to arrest in public like sworn dep-
uties, Gowens v. Alamance County, 3 S.E.2d 339, 341 (N.C. 1939),
detention officers are vested with a certain amount of discretion in
that they must be able to address custody, care, medical, and other
decisions respecting the inmates in their custody. See N.C. Gen. Stat.
§ 153A-224. A detention officer may not necessarily be a confidant
of the sheriff himself, but she may be privy to confidential informa-
17
tion, and the detention officer does implement the sheriff's policy
with respect to the jail and to inmate treatment.
I agree with the district court that these duties, which the district
court recounted in greater detail, essentially comport with those we
found important in Jenkins. A detention officer performs more than
mere ministerial functions, and I believe that any differences between
the positions of deputy and detention officer are distinctions without
difference.
II.
A.
It is easily demonstrated that Mrs. Knight was the alter ego of Ver-
non, the sheriff.
A North Carolina statute provides:
The sheriff shall have the care and custody of the jail in his
county; and shall be, or appoint, the keeper thereof. . . .
N.C. Gen. Stat. § 162-22. Another North Carolina statute provides:
The sheriff may not delegate to another person the final
responsibility for discharging his official duties, but he may
appoint a deputy or employ others to assist him in perform-
ing his official duties. (italics added)
N.C. Gen. Stat. § 162-24.
Mrs. Knight was a Justice Officer under North Carolina law. A Jus-
tice Officer is:
a person who, through the special trust and confidence of
the sheriff, has been appointed as a detention officer by the
sheriff. (italics added)
N.C. Gen. Stat. § 17E-2(3)(6).
18
Thus, Mrs. Knight was a Justice Officer in whom the sheriff
imposed "special trust and confidence" and for whom the sheriff was
liable under North Carolina statutory law without even the necessity
of referring to court decisions, but which court decisions are consis-
tent with this conclusion.
B.
The North Carolina Supreme Court has reasoned that a jailer is a
"law enforcement officer." State v. Dix , 193 S.E.2d. 897, 904 (N.C.
1973). And the district court has found without refutation that a Jailer
II is a sworn law enforcement officer.
It is admitted by Mrs. Knight that she was promoted from Jailer I
to Jailer II. See Br. p.2, A.30, A.393. And, as noted, the district court
found without refutation that a Jailer II is a sworn law enforcement
officer. A.393. That fact is corroborated by the position Mrs. Knight
takes in her brief, and the majority takes in this opinion, that she sup-
ports her case as to liability by her claim that she was not sworn and
had not taken the proper training. Mrs. Knight, however, undoubtedly
accepted the greater pay and emoluments of the office, and it is more
than unbecoming, even impermissible, for her to accept the pay of the
office but not the disabilities attending it. Official acts are presumed
to have been done in a regular manner, see e.g. Nofire v. United
States, 164 U.S. 657, 660-61 (1897), and I find her statement that she
was not qualified for, or sworn to, the office she held and the salary
she received to border on the inherently incredible. Certainly it is not
enough to upset a summary judgment or to accept as a fact.1
Indeed, even a casual reference to the statutes of North Carolina
shows that N.C. Gen. Stat. § 11-11 sets out the oaths, 29 in all, for
every officer of North Carolina which "shall be in the words follow-
_________________________________________________________________
1 In his deposition, Sheriff Vernon testified that Mrs. Knight was not
a sworn law enforcement officer. However, it appears that this testimony
was based on his mistaken belief that Mrs. Knight was employed as a
Jailer I and not employed as a Jailer II in 1994. Mrs. Knight's employ-
ment evaluations reveal that she held the position of a Jailer II since at
least 1992.
19
ing the names2 of said persons respectively." Among them are the
oaths to be administered, for Sheriff, to the "office of sheriff of
___________________ county," and the separate oath of a "Law Enforcement
Officer." The only other of those 29 oaths which could apply to Mrs.
Knight is the one styled "General Oath" which is given when "the term3
of whose oath is not given above" in the 28 previous oaths.
Because the Supreme Court of North Carolina has reasoned that a
jailer is a law enforcement officer, and because that is the only oath
among the 29 which is applicable to her, Mrs. Knight is bound to
have been required to take the oath of a "Law Enforcement Officer"
under N.C. Gen. Stat. § 11-11. That is the same oath taken by a dep-
uty sheriff, and it obligates her to "be alert and vigilant to enforce the
criminal laws of this State."
I am of opinion that this case should be disposed of on the reason-
ing of Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993):
There is no likely circumstance in which a shared ideology
is more important than when an elected official appoints a
deputy who may act in his or her stead. Elected officials are
charged with carrying forth the mandate of the voting pub-
lic, and in order to effectuate the policies promised the elec-
torate, that official must be able to have trusted advisors and
alternates who are directly accountable to that official.
To reach the conclusion of the majority under North Carolina law,
it would be necessary to find that Mrs. Knight was not a law enforce-
ment officer, which is patently not possible.
III.
Whatever factual differences I may have with the majority, or
whatever different conclusion I may draw from the same facts, should
not cloud or obscure the fact that under three North Carolina statutes
and a decision of the North Carolina Supreme Court, Mrs. Knight was
_________________________________________________________________
2 "Names" refers to the name of the office.
3 "Term" refers to the name of the office.
20
not the type of employee entitled to Constitutional protection because
of her political affiliation and loyalties. N.C. Gen. Stat. § 162-22 pro-
vides that:
The sheriff shall have the care and custody of the jail in his
county; and shall be, or appoint, the keeper thereof. . . .
N.C. Gen. Stat. § 162-24 provides that:
The sheriff may not delegate to an other person the final
responsibility for discharging his official duties, but he may
appoint a deputy or employ others to assist him in perform-
ing his official duties.
N.C. Gen. Stat. § 17E-2(3)(b) provides that a justice officer is:
A person who, through the special trust and confidence of
the sheriff, has been appointed as a detention officer by the
sheriff . . . .
Mrs. Knight was a justice officer.
The North Carolina Supreme Court has decided that a jailer is a
"law enforcement officer" in State v. Dix , 193 S.E.2d 897, 904 (N.C.
1973).
Even on the facts of this case, acknowledged by the majority, these
statutes and the Dix decision alone justify the conclusion of the dis-
trict court.
In sum, I would affirm.
21