Once again, it should be noted that it is not whether Waskovich had meaningful input; rather, focus is on whether the person occupying the position of Director has meaningful input. Because the Director necessarily has input into major policy decisions concerning the operation of the nursing homes, the question is answered in the affirmative.
E. Director as Policy Maker
Initially, I recognize that the word "policy" was used quite extensively during the hearing. As plaintiff's counsel pointed out, simply stating the word does not inform the court as to the duties of the director. Reference to a few examples of decision making, however, will provide a workable definition of the word as well as support the court's conclusion that the Director is a policy maker.
Although the Director neither has the power to fire a CEO of a nursing home unilaterally nor to close a wing of a home, he can recommend to the Deputy Commissioner that such actions be taken. Similarly, the Director is not permitted to single-handedly increase or decrease the number of beds available to veterans at the facilities, but it is undisputed that the Director can and does recommend that such action be taken. For example, when a reduction in the number of beds at the Menlo Park facility was suggested by Colonel Bruce Eveland, the Assistant Commissioner for Veterans' Affairs, Waskovich disagreed and recommended that the issue be discussed at a staff meeting. See Defendants' Exhibit 14.
It is apparent that the Director is always permitted to comment on proposed policy. See, e.g., Defendants' Exhibit 14 (Menlo Park bed reduction); Defendants' Exhibit 8 (Director's memorandum to Deputy Adjutant General concerning proposed implementation of uniform personnel practices) ("I do not recommend this policy."); Defendants' Exhibit 13 (criticizing reduction in F.T.D.). It is also apparent that the Director will be called upon to formulate the strategy for implementation of the approved policy proposals. Loudermilk testified that as one of his initial tasks he was charged with the obligation of creating uniform procedures and practices to be implemented at the three nursing homes. There is ample testimony in the record that indicates that, prior to this time, each of the nursing homes had been operating autonomously under its own set of rules. It cannot be argued that the creation and implementation of uniform practices and procedures throughout the nursing homes does not constitute major policy input.
Finally, it should be noted that generally the superiors of the Director will not possess a background in nursing home operation. The Adjutant General and Deputy Adjutant General essentially have their expertise in military affairs. The Deputy Commissioner has to oversee three large areas of operation. Thus, the Director's position is an integral part of policy formulation within the DMVA. The court does not believe it is extending the arm of party affiliation too far by drawing the line at the position of Director.
Accordingly, it is the court's opinion that, based on the facts of this case, political affiliation is an appropriate requirement for the position of Director. Therefore, the defendants' motion for summary judgment is granted, and the plaintiff's complaint is dismissed with prejudice.
V. Motion for Reconsideration
Also before the court is plaintiff's motion for reconsideration of the court's June 2, 1992, order. Essentially, plaintiff argues that, because the court had not ruled on whether political affiliation was an appropriate requirement for the position of Director, it could not rule that the defendants were immunized from monetary liability. Because the court has ruled that the person occupying the position of Director is subject to dismissal for political reasons, the plaintiff's motion for reconsideration is moot and, therefore, is denied. An order accompanies this opinion.
ORDER - August 27, 1992, Filed and Entered
This matter having come before the court on motion by defendants for summary judgment and on motion by plaintiff for reconsideration of the court's order of June 2, 1992, that an evidentiary hearing be held to resolve the question of whether the position from which plaintiff was discharged was a "confidential," "policy-making" position; and the court having held an evidentiary hearing and having considered the testimony presented, as well as the written submissions and oral arguments of counsel; and good cause having been shown,
IT IS on this 27th day of August, 1992,
ORDERED that defendants' motion for summary judgment is granted, and the matter is hereby dismissed; and it is further
ORDERED that plaintiff's motion for reconsideration of the court's order of June 2, 1992, is denied as moot.
CLARKSON S. FISHER
United States District Judge