Larry Davis v. Kris Ockomon , 668 F.3d 473 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2589
L ARRY D AVIS,
Plaintiff-Appellant,
v.
K RIS O CKOMON, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 08-cv-270—William T. Lawrence, Judge.
A RGUED O CTOBER 20, 2011—D ECIDED F EBRUARY 3, 2012
Before C UDAHY, K ANNE, and S YKES, Circuit Judges.
K ANNE, Circuit Judge. Larry Davis was terminated from
his position as Senior Humane Officer (“SHO”) for the
City of Anderson after refusing to support the suc-
cessful mayoral campaign of Kris Ockomon. Davis
brought suit in district court, claiming that the position
of SHO was not subject to political termination and
that his dismissal violated the First and Fourteenth
Amendments. The district court, relying on an official
2 No. 10-2589
job description, found that the SHO was a policymaking
position, and therefore Davis could be dismissed for
political reasons. We affirm on the basis that City ordi-
nances authorized the SHO to exercise policymaking
discretion.
I. B ACKGROUND
Davis was appointed SHO for the City in 1988,
following his work on the successful campaign of Demo-
cratic mayoral candidate Mark Lawler. The SHO is the
department head of the City’s animal shelter and animal
control operations, working with the Board of Public
Safety to implement and enforce animal control policies.
Davis was not initially interested in becoming SHO,
and had instead requested to be placed in a number of
other positions in the Lawler administration. But all of
the positions he had hoped for were awarded to other
individuals, and he was instead offered the job of
SHO. Despite having no relevant prior experience in
animal control, Davis accepted. Davis’s appointment
meant the ouster of the incumbent SHO, Pam Mar-
shall. Marshall subsequently filed suit against the
City, arguing that the she could not be replaced on the
basis of political affiliation. The suit was settled out of
court, and thus Davis secured his employment.
Davis held his position as SHO with relative job se-
curity throughout Lawler’s tenure as mayor, which
lasted through 2003. Nevertheless, Davis sought assur-
ances from various City officials that he could not
be replaced for political reasons, lest he suffer a similar
No. 10-2589 3
fate as his predecessor. After Lawler decided not to
seek reelection, Kevin Smith, a Republican, was elected
mayor. Smith took office on January 1, 2004, and promptly
replaced many Democratic officials with members from
his own party. But he did not replace Davis, ostensibly
because he thought that the SHO could not be terminated
for political reasons. As such, Davis remained SHO
throughout Smith’s tenure as mayor as well, and Davis
felt the security of his position was no longer in question.
Davis’s trouble began during the 2007 Democratic
primary election for mayor, when Darryl Rensil ran
against Kris Ockomon. Davis actively supported Rensil’s
campaign, but much to Davis’s chagrin, Ockomon won
the primary. Following his victory, Ockomon reached
out to Davis in an attempt to garner his support for the
upcoming general election. Davis refused, however,
purportedly because he thought Ockomon had not lived
in the City long enough to satisfy the residency require-
ment to become mayor. Nevertheless, Ockomon emerged
victorious in the general election. Having incurred
Ockomon’s political wrath, Davis was terminated as
soon as Ockomon took office on January 1, 2008. Ockomon
replaced Davis with Larry Russell, who was as equally
unqualified for the position as Davis had been when
he was appointed in 1988.
On February 29, 2008, Davis brought suit against
Ockomon and other City officials in the United States
District Court for the Southern District of Indiana. Pur-
suant to 42 U.S.C. § 1983, Davis claimed that he was
terminated from his position in violation of the First and
4 No. 10-2589
Fourteenth Amendments. On December 11, 2009, the
district court granted the City officials’ motion for sum-
mary judgment regarding Davis’s § 1983 claim, and
dismissed without prejudice a separate state-law claim
also brought by Davis. Applying Riley v. Blagojevich, 425
F.3d 357 (7th Cir. 2005), the district court first deter-
mined that the official job description controlled the
analysis of whether Davis could be replaced for politi-
cal reasons because the job description was reliable. The
district court found the job description reliable because
it had been created by an independent consulting firm
using nationally recognized standards and practices.
The description was also kept current through three
updates. Moreover, the job description had not been
modified since 2000, and thus there was no evidence
that any City official had tinkered with it in a way to
render the description systematically unreliable.
The district court then examined whether the SHO’s
duties, as provided for in the job description, could
be characterized as policymaking and thus properly
subject to removal on the basis of political affiliation.
The job description included a number of duties
involving significant discretionary authority, including:
preparing, submitting, and administering the depart-
ment budget; formulating and implementing long-range
plans for animal control; presenting policy and program
initiatives; and negotiating contracts for animal control
services. Due to the broad discretion exercised by the
SHO, the district court found that Davis was a policy-
maker, and that therefore his termination was proper.
No. 10-2589 5
On appeal, Davis argues that the district court erred
in granting summary judgment because the job descrip-
tion relied on by the court was systematically unreliable.
Furthermore, Davis asserts that the SHO does not exer-
cise sufficient discretionary authority to be considered
a policymaker.
II. A NALYSIS
We review the grant of summary judgment de novo,
construing all facts and drawing all reasonable inferences
in favor of the nonmoving party. Moore v. Vital Prods., Inc.,
641 F.3d 253, 256 (7th Cir. 2011). Summary judgment is
appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
The City officials concede that Davis was terminated
for political reasons, and thus the only issue on ap-
peal is whether the SHO is a position subject to political
termination. The First Amendment “forbids government
officials to discharge or threaten to discharge public
employees solely for not being supporters of the politi-
cal party in power, unless party affiliation is an appropri-
ate requirement for the position involved.” Rutan v. Repub-
lican Party of Ill., 497 U.S. 62, 64 (1990). After a plaintiff
demonstrates that he was terminated for political rea-
sons, the government then “bears the burden of estab-
lishing that a plaintiff’s position falls within the exception
to the general prohibition on patronage dismissal.” Kiddy-
Brown v. Blagojevich, 408 F.3d 346, 354 (7th Cir. 2005).
6 No. 10-2589
An individual may be terminated on the basis of
political affiliation when the nature of the public official’s
job makes political loyalty a valid qualification for the
effective performance of his position. Moss v. Martin, 473
F.3d 694, 698 (7th Cir. 2007). Generally, political loyalty
may be a valid qualification for one of two reasons:
either because “the job involves the making of policy
and thus the exercise of political judgment” or it is a job
that “gives the holder access to his political superiors’
confidential, politically sensitive thoughts.” Riley, 425
F.3d at 359. Although the Supreme Court in Branti v.
Finkel, 445 U.S. 507 (1980), abandoned the labels of
“policymaker” and “confidential employee” for a more
functional analysis in political-discharge cases, we have
found that “the terms ‘policymaking’ and ‘confidential’
do accurately describe the vast majority of offices that
fall within the realm of legitimate patronage under the
Branti formulation.” Kiddy-Brown, 408 F.3d at 355 (internal
quotation marks and punctuation omitted).
A public official is considered a policymaker where
“the position authorizes, either directly or indirectly,
meaningful input into government decisionmaking on
issues where there is room for principled disagreement
on goals or their implementation.” Id. Moreover, “[a]n
employee with responsibilities that are not well defined
or are of broad scope more likely functions in a
policymaking position.” Elrod v. Burns, 427 U.S. 347, 368
(1976).
We have previously recognized that it is often difficult
to determine whether an individual has policymaking
No. 10-2589 7
responsibilities. See, e.g., Kiddy-Brown, 408 F.3d at 355
(“From this court’s cases, it is clear that the question
whether an employee has policymaking powers in
many cases presents a difficult factual question.” (internal
quotation marks omitted)). Almost all jobs in govern-
ment require individuals to exercise at least some level
of discretion, resulting in somewhat arbitrary line-
drawing based on how much discretion is authorized.
Riley, 425 F.3d at 359. Also, positions requiring the
exercise of professional rather than political discretion
do not properly fall within the policymaker exception;
this too may be a blurry line because an official may
be tasked with exercising “both professional and broader
policy responsibilities.” Id. at 360. Thus, both the
amount and type of discretion authorized are relevant.
In determining whether a government official is a
policymaker, we examine “the powers inherent in a
given office, as opposed to the functions performed by
a particular occupant of that office.” Kiddy-Brown, 408
F.3d at 355. Focusing the inquiry on the inherent powers
of an office provides greater certainty to litigants and
relieves courts “of the burden of having to re-examine
a certain position every time a new administration
changes the mix of responsibilities bestowed upon the
officeholder.” Tomczak v. City of Chicago, 765 F.2d 633, 641
(7th Cir. 1985). In Riley, we held that elected officials
may rely on official job descriptions to determine the
inherent powers of a given office and whether these
duties render political loyalty appropriate. 425 F.3d at 360.
Without some basis for thinking the official job descrip-
tion is systematically unreliable, the job description is
8 No. 10-2589
the “pivot on which the case turns,” even if a plaintiff
is prepared to self-servingly testify that a job description
is inaccurate. Id. at 360-61. By relying on the job descrip-
tion, a protracted and likely inconclusive factual
inquiry could be avoided. Id. at 360.
Davis contends that the district court erred in finding
the job description reliable. He argues that the process
for creating the job description was systematically unreli-
able, and offers more than his own “self-serving” testi-
mony as evidence. Davis points to conflicts between the
job description and various ordinances in effect at the
time of his removal, demonstrating the inherent unreli-
ability and inaccuracy of the description. Moreover, he
offers the testimony of David Eicks, a City Councilman,
who described the process by which job classifications
were reviewed as corrupt, with politically connected
employees exaggerating duties in order to receive job
reclassifications and pay increases. Thus, Davis claims
the district court erred in applying Riley.
Although the district court relied solely on the job
description, which may conflict with applicable ordi-
nances, we focus our attention on the City ordinances
in effect at the time of Davis’s termination, which define
by law the duties of the SHO. See Pleva v. Norquist, 195
F.3d 905, 912 (7th Cir. 1999) (“Because [plaintiff’s] posi-
tion . . . was clearly defined by state statute and city
ordinance, we find that the district court’s determina-
tion as a matter of law of the policymaking status of
[plaintiff’s] position was proper.”). The starting point of
our inquiry should be the ordinances, and not the job
No. 10-2589 9
description, because “[u]nlike job descriptions, which
may bear little resemblance to a position’s actual duties,
the ordinance’s terms are not open to contest.” Walsh v.
Heilmann, 472 F.3d 504, 505 (7th Cir. 2006). A job descrip-
tion, to the extent it is consistent with pertinent statutes
or ordinances, may be relevant in providing greater
detail of a position’s duties and thus assisting in the
determination of whether a position is best characterized
as a policymaker or confidential employee. But a job
description cannot be relied upon to the exclusion of a
potentially conflicting statute or ordinance establishing
a position’s duties because any conflict between the
two would have to be resolved in favor of the statute
or ordinance.1 Thus, we turn to the local ordinances
establishing the duties of the SHO.
The SHO is appointed by the Mayor and given
authority as “department head of the Animal Shelter and
Animal Control operations.” Anderson, Ind., Code § 91.10
(2008). As department head, the SHO is “responsible
for supervision, implementation and enforcement of this
chapter” (chapter 91 dealing with animal control matters).
Id. The SHO’s authority can potentially affect any dog
or cat owner in the City because any person who owns
or has custody of a dog or cat over six months of age is
1
Of course, if there is no applicable statute or ordinance
defining a position’s duties, public officials may continue to
rely solely on an official job description as a safe harbor
to determine whether political affiliation is an appropriate
qualification. See, e.g., Powers v. Richards, 549 F.3d 505, 510
(7th Cir. 2008); Riley, 425 F.3d at 360.
10 No. 10-2589
required to obtain a license. Id. § 91.20. The SHO is also
given broad discretion in determining whether to revoke
a license, and “may revoke any license if the person
holding the license refuses or fails to comply with any
part of this chapter, or of the regulations promulgated
by the [SHO] and the Board [of Public Safety], or of
any law governing the protection and keeping of ani-
mals.” Id. § 91.24. After providing ten days’ notice to the
owner, the SHO may revoke a license, and the animals
owned “shall be humanely disposed of.” Id.
Moreover, the SHO is given broad discretion with
respect to permits and regulations for pet stores, kennels,
and animal shelters. A permit is required for the opera-
tion of any “commercial animal establishment, kennel,
or animal shelter, except for the city animal shelter.” Id.
§ 91.25. The SHO, with the approval of the Board of
Public Safety, has authority to “promulgate regulations
for the issuance of permits and may include require-
ments for humane care of all animals and for com-
pliance with the provisions of this chapter and
other applicable laws.” Id. § 91.26. The SHO is also
given authority to revoke a permit with ten days’ notice,
and can make a recommendation to the Board of Public
Safety as to whether a permit should be approved. Id.
§§ 91.29, 91.30. Finally, the position has the authority
to “promulgate policies and regulations for the adop-
tion of animals from the city animal shelter,” with the
approval of the Board of Public Safety. Id. § 91.52.
Davis principally argues that the discretion given to
the SHO by City ordinances requires only the exercise
No. 10-2589 11
of professional or technical judgment, rather than
political discretion. For example, he asserts that while
§ 91.26 allows the SHO to include requirements for
the issuance of permits that ensure “humane care of
all animals” and compliance with the law, any deter-
mination as to what constitutes the “humane care of all
animals” is a professional determination. Similarly, he
argues that the authority to promulgate regulations
relating to the adoption of animals granted in § 91.52
does not call for any political discretion. We disagree.
The ordinances give the SHO substantial discretion
to flesh out policy by promulgating regulations. While
Davis argues that the discretion exercised by the SHO
is professional rather than political, this contention is
belied by the fact that Davis was a political hire with
no technical expertise at the time of his appoint-
ment. Moreover, the ordinances authorize the SHO to
promulgate regulations with broad policy goals. While
everyone might agree that ensuring the humane care of
all animals is an enviable goal, the concept of “humane
care” is an amorphous one and subject to principled
disagreement, resulting in an inevitably political inter-
pretation. See Pleva, 195 F.3d at 913 (“Concepts such as
‘substantial justice,’ ‘public interest,’ ‘public convenience’
and ‘public health, safety and welfare’ are inherently
subject to principled disagreement. One can only
assume that individual members will flesh out the
meaning of these terms with their own policy, and inevita-
bly political, interpretations . . . .”).
Despite being a basic service of local government,
there may be principled disagreement over the develop-
12 No. 10-2589
ment and execution of animal control policies. The ac-
tions of the SHO, as head of the department and vested
with the authority to promulgate regulations, can have
serious political consequences. See Tomczak, 765 F.2d at
641 (“Elections often turn on the success or failure of
the incumbent to provide [basic services such as police,
fire protection, public schools, hospitals, transportation,
and libraries]. . . . While the ultimate goal of all sides
might be the same, there is clearly room for principled
disagreement in the development and implementa-
tion of plans to achieve that goal.”) As we noted
in Tomczak, one of the biggest turning points in the
1979 Chicago mayoral election involved the provision of
snow-removal services. Id. And in Walsh, we commented
that in at least one Midwestern city “the success of the
fall leaf-removal campaign is the standard by which
the people evaluate their mayors.” 472 F.3d at 505 (citing
Kupstas v. City of Greenwood, 398 F.3d 609 (7th Cir.
2005)). Animal control is no less a potentially politically-
sensitive basic service provided by local governments,
and the SHO is granted significant discretion that may
affect policies, and thus local elections.2
Davis maintains that the practice of previous admin-
istrations demonstrates that the SHO could not be
2
Pet owners certainly can be politically active and affect local
elections. See Beth Duff-Brown, DogPAC San Francisco:
Dog Owners Hope to Sway Mayoral Race, Huffington Post (Oct.
4, 2011, 4:35 AM),http://www.huffingtonpost.com/2011/10/03/
dogpac-san-francisco_n_992555.html.
No. 10-2589 13
removed on the basis of political affiliation. Mayor Lawler
settled a lawsuit with Davis’s predecessor after she
was terminated for political reasons, while Mayor Smith
chose not to replace Davis despite replacing many
other Democratic officials. The practice of prior admin-
istrations notwithstanding, the relevant inquiry is
whether the SHO was a policymaker, and the ordi-
nances reveal that the SHO was granted policymaking
authority. The prior administrations may have taken
these actions not because they believed that the SHO
could not be removed for political reasons, but rather
because they did not want to take the chance of being
proven wrong in litigation. Even a party that believes it
is conforming with the law faces a substantial risk in
litigation. See Rissman v. Rissman, 213 F.3d 381, 386 (7th
Cir. 2000) (“[M]any sensible people want to curtail risk
(and all litigation is risky).”).
City ordinances confer sufficient policymaking respon-
sibilities to the SHO such that political loyalty was a
valid qualification. The SHO is tasked with important
regulatory functions involving a high level of discretion,
including the authority to promulgate regulations re-
garding the issuance of permits, create conditions and
standards for the revocation of licenses and permits,
and make individual determinations on whether to
issue or revoke a license. Because we find that the
relevant ordinances authorize the SHO policymaking
discretion, we need not consider the job description
and whether Davis presented sufficient evidence to
call into question its reliability.
14 No. 10-2589
III. C ONCLUSION
We find the applicable ordinances vest the SHO with
policymaking authority and render political loyalty an
appropriate consideration. Therefore, we A FFIRM the
judgment of the district court.
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