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WASKOVICH v. VITO MORGANO

August 27, 1992

THOMAS R. WASKOVICH, Plaintiff,
v.
GENERAL VITO MORGANO, et al., Defendants.



The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 Introduction

 On June 2, 1992, the court ordered an evidentiary hearing to facilitate the determination of a single issue. A resolution of the issue in favor of the defendants will terminate the case, while a resolution of the issue in favor of the plaintiff will render the case trial ready. The question presented can be stated simply: whether the position of Director of Veterans' Administrative Services, a position within the New Jersey Department of Military and Veterans' Affairs (DMVA), is a "confidential," "policy-making" position, thereby subjecting the person in the position to dismissal based on his affiliation with a political party. The issue can be framed another way: whether the position of Director is a nonconfidential, nonpolicy-making position, thereby subjecting the State to liability based on the First Amendment's prohibition against the political termination of such employees. *fn1" For the reasons set forth below, the court has determined that, because the Director is a confidential, policy-making employee and because party affiliation is an appropriate requirement for the job, plaintiff could be terminated based on his political affiliation. Accordingly, the defendants' motion for summary judgment is granted, and plaintiff's motion for reconsideration of the court's June 2, 1992, order is denied as moot.

 II. Background

 As the court noted in its previous opinion, plaintiff, Thomas R. Waskovich (Waskovich), the former Director of the Division of Veterans' Administrative Services, brought this action under 42 U.S.C. §§ 1983, 1985 and 1986, the First, Fifth and Fourteenth Amendments to the United States Constitution and Articles I and VII of the New Jersey Constitution. Essentially, plaintiff claims that he was discharged, in violation of the First Amendment's protection against political firing, from the position of Director by the recently-elected Democratic Administration because of his affiliation with the Republican Party.

 By order dated June 2, 1992, the court dismissed plaintiff's claims against defendants the State of New Jersey and the DMVA based on the Eleventh Amendment's sovereign immunity doctrine. Additionally, the court dismissed plaintiff's claims for monetary damages against the individual defendants in their individual capacity based on the doctrine of qualified immunity. Hence, the court noted that there was only one issue remaining: plaintiff's claim for reinstatement brought against the individual defendants in their official capacities. Resolution of this issue, the court noted, depends on the determination of plaintiff's First Amendment claim. As the court has explained, defendants maintain that Waskovich was discharged because his philosophies did not comport with those of the new administration and because they felt that a change in the position was necessary. *fn2"

 Further, the court recognized that, for purposes of this motion for summary judgment, defendants argue that the Director's position is a confidential, policy-making position subject to termination based on an individual's membership in a political party. Accordingly, the court set forth the applicable standard to be utilized in determining the issue. Finding that the defendants did not carry their burden of demonstrating that the position of Director was a confidential, policy-making position subject to political termination, the court ordered an evidentiary hearing. The court instructed the parties to present evidence concerning the duties and responsibilities of the Director.

 A hearing was commenced on July 1, 1992, and was completed on August 3, 1992. Having listened to the testimony and having reviewed the documentary evidence, it is clear that plaintiff was a confidential, policy-making employee, and that political affiliation is an appropriate requirement for the position of Director of Veterans' Administrative Services. This decision is supported by numerous factors.

 III. Legal Standard

 Before detailing the facts that buttress this determination, it is necessary to set forth the underlying legal framework. The United States Supreme Court has held that "the dismissal of certain public employees solely because of their partisan political affiliation infringes their First Amendment rights of belief and association." Zold v. Mantua, 935 F.2d 633, 635 (3d Cir. 1991) (citing Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); and Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976)). Thus, certain employees are excepted from, and do not fall within, the class of protected individuals. This exception was created because "there are situations which arise where an employer has a legitimate interest in employing persons who will loyally implement the policies of a political party and guard confidential information from improper disclosures." Peters, 785 F. Supp. at 521 (citing Elrod, 427 U.S. at 365-68; Branti, 445 U.S. at 518; and Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990)). An expansive discussion of the purposes of this exception to the general First Amendment protection is contained in Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 262-63 (D.C. Cir. 1988). The Hall court expounded on the rationale for the rule:

 High level officials must be permitted to accomplish their organizational objectives through key deputies who are loyal, cooperative, willing to carry out their superiors' policies, and perceived by the public as sharing their superiors' aims; this is true whether or not those officials are elected. In the case of key patronage appointments, this government interest is protected because of the presumption that these individuals are compatible with the elected officials they serve. As they belong to the same party, they must be presumed to share common interests and goals, which cannot be said of members of an opposition party. But regardless of whether a key policy level deputy is appointed from among the ranks of party members, the need for compatibility remains.

 Id. at 263. Hence, this rationale implicates one issue: "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518. The Third Circuit has stated that the nature of this inquiry is extremely fact specific. Zold, 935 F.2d at 635. Accordingly, the circuit court, while not developing any talismanic test, has listed a number of factors that the court may look to in making this determination. See Brown v. Trench, 787 F.2d 167, 169 (3d Cir. 1986). Such factors include: whether the employee's duties are simply clerical or related to law enforcement, nondiscretionary or technical; whether the employee is involved in counsel discussions or other meetings, or whether the employee prepares budgets or has the authority to hire and fire other employees. Moreover, the court may look at the employee's salary, the employee's ability to control other employees and his ability to speak in the name of policy makers. Id. at 169 (citations omitted). Further, the court pointed out that the key factor is not whether the employee had a great deal of responsibility, but whether the employee has "meaningful input into decision making concerning the nature and scope of a major . . . program." Id. (quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981)).

 After applying the facts of this case to some of these factors, the Brown court held that a county assistant director of public information who had significant duties as a liaison to the community could be discharged based on political affiliation. Similarly, after applying the facts of this case to some of the factors enumerated by the circuit court, it is readily apparent that Waskovich falls within the class of employees not protected by the First Amendment.

 IV. The Role of the Director

 It is imperative to point out that, for the purposes of this summary judgment motion, it must be assumed that Waskovich was dismissed because of his affiliation with the Republican Party. Additionally, it is important to note that in examining the issue, whether the defendants have demonstrated that party affiliation is an appropriate requirement for the position of Director of Veterans' Administration Services, the court will not look at the function of Waskovich in the position but, instead, will analyze the function of the position itself. See Brown, 787 F.2d at 168 (citing Mummau v. Ranck, 531 F. Supp. 402, 404 (E.D. Pa.), aff'd, 687 F.2d 9 (3d Cir. 1982) (per curiam) (The relevant inquiry focuses on the function of the public office involved . . . not the function of the particular employee occupying the office.")).

 Plaintiff does not dispute that the Director performs more than clerical activities; instead, plaintiff argues that political affiliation is not an appropriate requirement for the job. To bolster this position, plaintiff points to the testimony of the defendants' witnesses, wherein they uniformly and unequivocally stated that political affiliation was not a necessary qualification for the position. At first glance, this testimony should end the court's inquiry and compel the court to hold in the plaintiff's favor. Looking deeper, however, the court is compelled to reach the opposite conclusion. This is true because the issue is not whether the Director's superiors ever considered party affiliation in filling the position; rather, the issue is whether they could have. The answer is yes.

 A. Organizational Hierarchy

 An examination of the organizational hierarchy within the DMVA will assist in elucidating the function of director. At the top of the chart is, of course, the Governor. Next is the Adjutant General, who is a cabinet-level official in the state government and is appointed by the Governor with the advice and consent of the Senate. N.J.S.A. § 38A:3-3. The Deputy Adjutant General is next in line and is also appointed by the Governor. N.J.S.A. § 38A:3-5. Just below the Deputy Adjutant General is the Deputy Commissioner of Veterans' Affairs. N.J.S.A. § 38A:3-4.1. The Deputy Commissioner is appointed by the Governor with the advice and consent of the Senate. The statute defines the Deputy Commissioner's role as follows:

 The Administrator shall, under the supervision of the Adjutant General, direct and oversee the activities of the Director of the Division of Veterans' Administrative Services, the Director of the Division of Veterans' Loans, Grants and Services, and the ...


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