Powers, Robert v. Richards, George E. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2866
R OBERT P OWERS,
Plaintiff-Appellant,
v.
G EORGE E. R ICHARDS, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-C-3024—Jeanne E. Scott, Judge.
A RGUED JANUARY 23, 2008—D ECIDED D ECEMBER 2, 2008
Before M ANION, R OVNER, and E VANS, Circuit Judges.
R OVNER, Circuit Judge. Robert Powers, a former State
of Illinois employee and a member of the Republican
Party, brought this civil-rights suit under 42 U.S.C. § 1983
claiming that the governor of Illinois and his staff vio-
lated his right to freedom of association when they fired
him because of his party affiliation. He also asserted that
the members of the Illinois Civil Service Commission
denied him procedural due process when they fired him
without an adequate pre-deprivation hearing. The district
2 No. 06-2866
court granted summary judgment in favor of all defen-
dants. Because Powers cannot show that his constitu-
tional rights were violated, we affirm.
From August through September 2002 Powers was a
Deputy Director of the Illinois Department of Central Man-
agement Services (CMS), the “central procurement and
administrative services agency” for the state. See http://
www.cms.illinois.gov/cm s/about_cms/quickfacts.htm
(last visited Oct. 2, 2008). He was assigned to work as a
liaison to the governor’s office. According to the defen-
dants, during the waning months of Governor George
Ryan’s administration, Powers was part of a political
scheme to ensure that certain state employees retained
their jobs after Governor Ryan, a Republican, left office.
These employees had been appointed to four-year terms,
during which they could not be fired except for poor
performance. Once these terms ended, they could be
fired for any reason. See 20 ILCS 415/8b.18, 8b.19. Their
terms were set to expire shortly after Governor Ryan, who
had decided not to seek reelection, left office. Concerned
that the new governor would not reappoint them, in
September 2002, they attempted to find a way to secure
their jobs. First, they resigned their positions, ostensibly
to take different, non-appointed jobs in the state gov-
ernment. A few days later, they returned to their former
positions with new four-year terms. Voila! Their jobs
were secure until 2006, long into the new governor’s term.
Powers’s role in the scheme was vital, but quite simple:
he signed some of the personnel forms required to ef-
fectuate the transfers from one job to another. The problem
was that he did not have the authority to permit these
No. 06-2866 3
transfers or to sign the forms. Only CMS’s Director—and
not a deputy—may approve transfers of employees, and
the Director refused to sign the forms. Powers knew that
the Director would not sign the authorizations, and
so Richards signed his name in boxes reserved for the
Director’s signature.
Shortly thereafter, in October 2002, Powers took a job
as the Executive Secretary of the Illinois Civil Service
Commission. The Commission is composed of five Com-
missioners, and no more than three may be members of
the same political party. The Commission, among other
duties, hears appeals of state employees regarding dis-
charges, suspensions, transfers, allocations, layoffs and
demotions; modifies the Personnel Rules when neces-
sary; and investigates possible violations of the Personnel
Code. According to the official position description, the
Executive Secretary is the chief administrative officer of
the Commission and, in that capacity, among other duties,
drafts “major rules and regulations” and presents them
to the Commission; makes recommendations to the Com-
missioners about how disputes presented at hearings
should be resolved; enforces the Commission’s decisions;
develops the budget and approves expenditures; coordi-
nates with other agencies on matters relating to the Person-
nel Code and Rules; recommends amendments to the
Personnel Code; interprets the Personnel Code and
Rules for state officials, employees, and members of the
public; and investigates alleged violations of the Person-
nel Code and Rules.
In January 2003, Rod Blagojevich, a Democrat, acceded
to the governor’s office. His administration began an
4 No. 06-2866
investigation into the state employees’ scheme to subvert
the appointment system. In April 2003, Governor
Blagojevich’s counsel sent a letter to the Commission
detailing the findings of the investigation and concluding
that Powers and two others who had been working in
Governor Ryan’s office “appear to have played key roles in
concocting and implementing this scheme.” Two days
later, Powers received a copy of this letter, and the Com-
mission met to consider the allegations against him. At
the meeting, the Commission decided to place him on
administrative leave with pay. In May 2003, the General
Counsel for CMS gave the Commission an investigative
report that further described the scheme. The next day, the
Commission decided to suspend Powers with pay. The
Commissioners voted unanimously to authorize then-
Chairman George Richards to hold a hearing with Pow-
ers. The Commissioners further granted Richards
the authority to fire Powers if Powers did not come
forward with exculpatory evidence.
On May 21, 2003, Richards sent Powers written notifica-
tion that the Commission was considering firing him
because he fraudulently signed personnel forms. The
letter listed the names of potential witnesses, informed
Powers of the hearing date, and told him that he had
the right to respond. Richards enclosed documents sup-
porting the accusations, including copies of the personnel
forms Powers signed purportedly as the Director of CMS.
On May 29, 2003, Richards met with Powers, reiterated
the accusations against him, showed him the evidence,
and invited Powers to respond. Powers admitted that he
No. 06-2866 5
signed his name in the spot reserved for the signature
of the Director of CMS but went on to explain his version
of the events. According to Powers, the Director approved
the transfers but did not want to sign the forms, and so
requested that someone in the Governor’s office sign
them. Powers insisted that prior administrations also
had followed this “process.” Powers, however, did not
dispute that he signed his name as the Director CMS
without official authorization. Thus, Richards recom-
mended that CMS fire him, which it did. Powers then
received a post-deprivation hearing before an Administra-
tive Law Judge (ALJ) where he was represented by
counsel and had the opportunity to conduct discovery,
present evidence, and cross-examine witnesses against
him. In November 2003, the ALJ issued his findings and
concluded that the Commission was warranted in firing
Powers.
In granting summary judgment for the defendants, the
district court determined first that Powers lawfully
could be fired for his political affiliation because party
loyalty is relevant to the job of Executive Secretary of the
Commission, and second that Powers received all of the
process he was due at his pre-termination hearing. We
review this decision de novo, see Argyropoulos v. City of
Alton, 539 F.3d 724, 732 (7th Cir. 2008), and agree with
the district court that Powers cannot succeed on either
of his claims.
Powers first argues that he submitted sufficient evid-
ence demonstrating that Governor Blagojevich and his
staff violated Powers’s right to freedom of association
6 No. 06-2866
under the First Amendment when they urged the Com-
mission to fire him for his affiliation with the Republican
Party. Although there is virtually no evidence sup-
porting a claim that Powers was fired because of his
political affiliation, there is ample evidence in the record
that he was fired because he tried to help other employees
retain their jobs by falsely signing personnel forms as
the Director of CMS. Curiously, however, the defendants
have not pressed this point and instead have conceded,
for the purposes of the summary judgment motion, that
they wanted to get rid of Powers because he is a Republi-
can. But even so, we agree with the district court that
political affiliation is an appropriate requirement for the
position of Executive Secretary and thus Powers could
lawfully be fired solely for partisan reasons.
Like a perpetual ping-pong match, control over gov-
ernments changes hands from one political party to
another and back again. Generally, a change in admin-
istration, with its corresponding shift in policy goals and
priorities, does not affect government employees. The
political affiliation of most employees does not affect
their ability to do their jobs, and a new administration
might violate the First Amendment if it fired these em-
ployees merely because they support a different political
party (or if it refused to hire applicants who were not
loyalists of the governing party). See Branti v. Finkel, 455
U.S. 507, 513, 515-16 (1980); Elrod v. Burns, 427 U.S. 347,
372-73 (1976). Some jobs, however, can be performed
satisfactorily only when the employee supports the ad-
ministration’s ideas about policy and governing. If these
jobs are filled with employees who take a view different
No. 06-2866 7
from the administration, then these employees could
thwart the government’s ability to enact the policies it
had been elected to advance. Thus, where party loyalty is
necessary to effectively perform a job, the First Amend-
ment does not prohibit the administration from firing
an employee based on party affiliation. See Branti, 455
U.S. at 518; Thompson v. Ill. Dep’t of Prof’l Regulation, 300
F.3d 750, 755-56 (7th Cir. 2002).
In assessing whether political loyalty may play a role
in an employment decision, we consider whether the
position requires the employee to exercise political judg-
ment by crafting policy, see Moss v. Martin, 473 F.3d 694,
699 (7th Cir. 2007), that is, whether the position “autho-
rizes, either directly or indirectly, meaningful input into
government decisionmaking on issues where there is
room for principled disagreement on goals or their im-
plementation,” Nekolny v. Painter, 653 F.2d 1164, 1170 (7th
Cir. 1981); see also Kiddy-Brown v. Blagojevich, 408 F.3d 346,
355 (7th Cir. 2005). We further ask whether the position
entails the exercise of a substantial amount of political (as
distinct from professional) discretion. See Allen v. Martin,
460 F.3d 939, 944 (7th Cir. 2006); Riley v. Blagojevich, 425
F.3d 357, 360 (7th Cir. 2005).
Elected officials must rely on official descriptions of
individual positions when deciding which employees
they may and may not replace with like-minded partisans.
Thus, as long as an official description is reliable, we
focus on the inherent duties of the position as listed in
the description. See Riley, 425 F.3d at 361. Powers does not
dispute that the official job description accurately
8 No. 06-2866
explains the responsibilities of the Executive Secretary,
and so our analysis of his job duties begins and ends
there. See Allen, 460 F.3d at 944.
Powers concedes that the Executive Secretary is responsi-
ble for policymaking, but he contends that political
loyalty is not a necessary qualification for all policy-
makers. Although he is correct that the label of
“policymaker” is not a talisman for a job that requires
political loyalty, a reading of the position description
reveals that, for the Executive Secretary, the description
“policymaker” is more than a generic label. Rather, the
Executive Secretary must use political discretion and
has the ability to influence important government deci-
sions about personnel matters. The Executive Secretary
is responsible for drafting and proposing rules changes
and modifications to the Personnel Code, which affects
all state employees, and is charged with advising the
Commission about how it should resolve personnel
disputes. These responsibilities give the Executive Secre-
tary a hand in making decisions on a wide range of per-
sonnel issues. The Executive Secretary also has broad
discretion over personnel matters, including the
authority to decide which complaints to prioritize for
investigation, how to enforce the Commission’s decisions,
and how to interpret the Personnel Code. In all of these
decisionmaking and discretionary functions, there is
room for the administration to legitimately disagree
with the Executive Secretary’s positions or exercise of
authority, thus making political loyalty an appropriate
job qualification. See Allen, 460 F.3d at 945; Americanos v.
Carter, 74 F.3d 138, 142 (7th Cir. 1996); Selch v. Letts, 5 F.3d
No. 06-2866 9
1040, 1047 (7th Cir. 1993); Tomczak v. City of Chicago, 765
F.2d 633, 642 (7th Cir. 1985). Moreover, the Executive
Secretary represents the Commission at meetings with
state officials and with other organizations outside of
state government to resolve questions on personnel
matters and to interpret the Personnel Code. Communicat-
ing the positions of the Commission and interpreting
state law to those inside and outside of the government
require political sensitivity, and the administration
would want a loyal partisan, who would accurately
reflect its position, in this role. See Allen, 460 F.3d at 945.
We conclude that the Executive Secretary has broad
discretion to make policy, set priorities, interpret the law,
and speak on behalf of the Commission, and that if the
Executive Secretary is a political enemy of the sitting
governor, the Executive Secretary could hamper the
implementation of the governor’s legitimate policies.
Therefore, the administration may require the person
who fills the position to perform those responsibilities
consistently with the administration’s positions and
priorities, and it is entitled to fill the position with an
employee who is a member of the same political party
and who will be loyal to the governor and advance his
or her policies.
According to Powers, the role of the Commission is to
ensure that personnel decisions are based on merit and
are unaffected by political considerations. Powers also
points out that the Commission is independent of the
governor, that the Commission must be composed of no
more than three members of the same political party, and
10 No. 06-2866
that the Executive Secretary’s allegiance lies with the
Commission, not the governor. Thus, he concludes that
the Executive Secretary position is politically “neutral” and
that affiliation with a particular party is not a valid re-
quirement for the position. But this argument misses
the point. Just because the law that the bi-partisan Com-
mission and the Executive Secretary are charged with
implementing aims to ensure that the most qualified
people receive jobs without undue political meddling
does not mean there must be universal agreement on
how to administer it, interpret its provisions, or set priori-
ties for amendments or investigation into wrongdoing.
Although the administration and Powers might share
the ultimate goal of ensuring fair, merit-based govern-
ment employment, their means to achieve this goal might
differ, making political loyalty an appropriate require-
ment for the position of Executive Secretary. See
Americanos, 74 F.3d at 641; Selch, 5 F.3d at 1045; Tomczak,
765 F.2d at 142.
Powers also argues that party affiliation is not an appro-
priate qualification for his former job because he was
hired through a merit-based procedure and, under state
law, can be fired only for cause. But we rejected that very
argument in Flenner v. Sheahan, 107 F.3d 459, 464 (7th
Cir. 1997), finding that the Illinois legislature’s judgment
that a superior must have a good reason for firing an
employee is irrelevant to whether removing the em-
ployee for political reasons violates the First Amendment.
Flenner, 107 F.3d at 464. Powers might have a remedy
under Illinois law if he can show that the administration
or the Commissioners infringed his rights under the
No. 06-2866 11
Personnel Code, but his constitutional rights have not
been violated; so he cannot succeed on his federal civil-
rights claim. See Riley, 425 F.3d at 365.
Powers next argues that he presented sufficient
evidence that the hearing he received before he was
fired was constitutionally deficient. Illinois law provides
that the Executive Secretary can be fired only “for cause,”
so Powers had a property interest in retaining his job
and was entitled to due-process before the state could
deprive him of it. See Ryan v. Ill. Dep’t of Children & Family
Servs., 185 F.3d 751, 761 (7th Cir. 1999); see also
Argyropoulos, 539 F.3d at 741 (noting that tenured public
employees enjoy a “near-categorical guarantee” of process
before they are removed from their positions). Where, as
here, an employee is entitled to a full hearing after he
has been fired, a pre-deprivation hearing satisfies due
process if the employee receives notice of the allegations,
an explanation of the evidence against him, and a chance
to tell his version of the story. See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985); Michalowicz v. Vill.
of Bedford Park, 528 F.3d 530, 536-37 (7th Cir. 2008).
Powers does not dispute that he received notice that he
had been accused of improperly signing his name as the
Director of CMS, that the Commission explained the
evidence against him, and that he was given the opportu-
nity to explain his version of events. He argues, however,
that, before the hearing, the Commissioners had already
agreed to fire him and thus his hearing before Commis-
sioner Richards was essentially a sham. A hearing where
the decisionmaker has prejudged the outcome does not
12 No. 06-2866
comport with due process because it effectively denies
the employee the opportunity to respond to the accusa-
tions against him. See Ryan, 185 F.3d at 762.
But Powers has put forward nothing except for his own
speculation to support his contention that the Com-
mission decided to fire him before the hearing. Rather,
the undisputed evidence shows that the Commissioners
authorized Commissioner Richards to hold the hearing
with Powers, and, if Powers failed to provide new and
exculpatory evidence, to remove him from his position.
Furthermore, there is no evidence that Richards had
made up his mind to fire Powers before the hearing.
Instead, the record shows that Richards listened to Pow-
ers’s explanation that he believed the personnel transfers
were valid and that the Director of CMS had approved
them. But because Powers conceded that he signed forms
to authorize personnel transfers as the Director of CMS
knowing that the Director had refused to sign them,
Richards concluded that Powers had not presented evi-
dence of his innocence. Thus Richards exercised his
authority and fired Powers. Even if prior to the
hearing Richards was inclined to believe Powers should
be fired, there would be no due-process violation as long
as he kept an open mind, see Ryan, 185 F.3d at 762, and
Powers has presented no evidence that nothing would
have persuaded Richards not to fire him, see Head v.
Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 804 (7th
Cir. 2000) (noting that adjudicators are presumed to act
in good faith absent evidence of actual prejudgment).
Powers also complains that, because only the Com-
mission had the authority to remove him, he was
No. 06-2866 13
entitled to a pre-termination hearing before all of the
Commissioners. But Powers did receive a hearing before
the person with the authority to determine his fate—the
Commissioners had delegated that authority to Commis-
sioner Richards. Furthermore, even if the Commission
had retained the ultimate authority to fire Powers, the
Constitution does not entitle an employee to a pre-termina-
tion hearing in front of the ultimate decisionmaker. See
Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1465 (4th
Cir. 1990); Los Angeles Police Protective League v. Gates, 907
F.2d 879, 891 (9th Cir. 1990); Loudermill v. Cleveland Bd. of
Educ., 844 F.2d 304, 312 (6th Cir. 1988).
Powers also argues that his post-deprivation hearing
was constitutionally deficient and that he therefore
should have received more elaborate pre-termination
process, but this argument, too, misses the mark. As
long as a more-searching post-termination procedure
is available, the pre-termination proceedings need only
establish that there are reasonable grounds to support
the removal of the employee. See Loudermill, 470 U.S. at 545-
46; Baird v. Bd. of Educ., 389 F.3d 685, 690-91 (7th Cir. 2004).
Powers cannot dispute that Illinois gave him the right to
a full hearing—where he was represented by counsel and
allowed to conduct discovery, present evidence, and cross-
examine witnesses—and that he took full advantage of it.
If his post-termination hearing fell short of due-process
requirements, his remedy was to raise a constitutional
challenge to those proceedings, not to use the alleged
deficiencies as grounds to attack his pre-termination
hearing. Indeed, Powers must have understood this
because he actually raised constitutional challenges to his
14 No. 06-2866
post-termination hearing. The district court, however,
dismissed all of the claims relating to the post-termina-
tion hearing. Powers does not argue in his briefs on
appeal that this decision was incorrect. Thus, he has
abandoned any argument that the district court should
have considered his claims regarding his post-termination
hearing. See Ruffin-Thompkins v. Experian Info. Solutions, Inc.
422 F.3d 603, 607 n.1 (7th Cir. 2005); Robin v. Espo Eng’g
Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).
Therefore, the judgment of the district court is A FFIRMED.
12-2-08