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HUGE Victory for California Law Enforcement Officers and the PORAC Legal Defense Fund – Ninth Circuit Holds That: Deputy Sheriffs Are Not Policy Makers Who Can Be Fired For Political Reasons

Posted on Tuesday, August 01, 2000 at 12:00PM
Posted by Mike Rains

It was an honor and a challenge to be requested by the trustees of the PORAC Legal Defense Fund to appear as Amicus Curiae for PORAC and the Legal Defense Fund in the Ninth Circuit Court of Appeals in a case entitled Sherol DiRuzza v. County of Tehama, et al. PORAC and the Legal Defense Fund viewed the decision of the Federal District Court in Sacramento as destructive of the right of rank-and-file peace officers (in this case, deputy sheriffs) to engage in political activities and free speech without facing disciplinary consequences from their employer.

The plaintiff in this case, Sherol DiRuzza, was employed by Tehama County as a deputy sheriff from 1992 to 1995. In 1994, DiRuzza supported the incumbent sheriff in his bid for re-election. Unfortunately for DiRuzza, the incumbent sheriff lost his re-election bid to Robert Heard. DiRuzza, in her underlying lawsuit, claimed that Heard, after taking office, terminated her as the result of her political activity in support of his opponent.

Although Heard and his appointed undersheriff claimed that DiRuzza had engaged in actionable misconduct which supported her termination, they also alleged that they had a right to terminate her irrespective of her asserted misconduct, because a deputy sheriff in Tehama County was a “policy maker,” and political loyalty of a “policy maker” is a necessary requirement for the job.

The District Court, by granting Summary Judgment for the sheriff and undersheriff, held, in essence, that deputy sheriffs in California are “policy makers” and may be fired for engaging in political activity and/or speech which incurs the disapproval of the sheriff.

Needless to say, when PORAC and the Legal Defense Fund became aware of the lower court’s ruling on this case and the important issue at stake, it enthusiastically endorsed joining an appeal to the Ninth Circuit Court of Appeals. They recognized the decision’s grave potential for chilling the right of political speech and expression of rank-and-file police officers throughout the state.

A great deal of the written work and briefing in this case was done by my friend and former colleague at Carroll, Burdick & McDonough, Phil Ginsberg. He carefully analyzed the reasoning of the District Court and found a distinguishing point: the District Court, in holding that deputy sheriffs are “policy makers”, relied on cases from the Fourth, Seventh, and 11th Circuits, but ignored a very significant case from our own Ninth Circuit entitled Thomas v. Carpenter, 881 F.2d 828 (9th Cir., 1989). The was, incidentally, a Legal Defense Fund case. In Thomas, a lieutenant in the Santa Barbara Sheriff’s Department filed a civil rights action against the sheriff, alleging that the sheriff had retaliated against the lieutenant (Thomas) for running against him in the sheriff’s election.

The sheriff had defended his decision to ban the lieutenant from attending departmental staff meetings, policy manual revision meetings, and other important duties, on the ground that the lieutenant had demonstrated his disloyalty and untrustworthiness by running against the sheriff in the election. The Ninth Circuit rejected the sheriff’s contention that the loyalty of his lieutenant was essential to the operation of his administration, stating that the effectiveness and efficiency of the Sheriff’s Administration “…is not furthered, however, by the discharge of non-policy making individuals who have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.” (Thomas, 881 F.2d at 830-831).

In preparing this case for oral argument, it became very clear that the Federal Circuit Courts which have held that those occupying the rank-and-file position of a “deputy sheriff” are circuits in which deputy sheriffs are essentially “at will” employees, and have no civil service protections whatsoever. The research concerning the status of deputy sheriffs in other states was particularly interesting and enlightening. California law enforcement officers, and particularly members of sheriffs’ departments, should be grateful that civil service rules create property rights in continued employment, and the Peace Officers Bill of Rights Act helps to protect against shoddy investigations and arbitrary terminations.

As I prepared for oral argument, it became reasonably clear that the decision would be influenced, if not determined, by considering the specific duties performed by DiRuzza in the Tehama County Sheriff’s Department.

Lawyers for the sheriff and undersheriff argued that, while a deputy sheriff in a large metropolitan sheriff’s department may arguably not be a “policy maker”, that was not the case in rural Tehama County – where DiRuzza was one of only 78 sworn deputy sheriffs.

In oral argument, to counter this argument, I reminded the judges that DiRuzza’s duties for most of her career consisted primarily of working in the jail and operating a panel which opened doors and activated phones – hardly duties performed by a “policy maker” in a sheriff’s department of any size.

Additionally, both the District Court and the sheriff had relied upon a Ninth Circuit case entitled Fazio v. City and County of San Francisco, 125 F.3d 1328 (9th Cir. 1997) in holding that a deputy sheriff was a “policy maker”. I emphasized that Fazio established just the opposite – that the factors to be applied in determining who is a “policy maker” mandated that the lower court’s decision be reversed.

In Fazio, the court had determined that the plaintiff, Fazio, was a “policy maker” for the following reasons:

  • Fazio was employed in the capacity as a “head attorney.”
  • He had served in the District Attorney’s Office for 20 years.
  • His salary was comparatively high in the office – over $100,000.
  • His duties were nearly identical to those of the district attorney himself.
  • He represented the District Attorney’s Office in discussing cases to the media.
  • He personally handled high profile cases with great autonomy and no supervision.

I advised the judges during oral argument that these precise factors which the court relied upon to determine Fazio was a “policy maker” required the court to come to a contrary decision concerning DiRuzza.

Finally, and for reasons I never quite understood, the attorneys representing the sheriff and undersheriff requested the court to take judicial notice of the collective bargaining agreement between the Deputy Sheriffs Association and Tehama County. The court granted the request, and I seized the opportunity to point out that the very strong “management rights” clause in the contract precluded “rank-and-file” deputies, such as DiRuzza, from participating in important policy-making functions.

Although the judges were not very kind or understanding to any of the lawyers who argued this case, it is clear that the arguments we made strongly influenced the final decision, which included some very strong language:

“Given the range of duties performed by deputy sheriffs in California, a conclusion that deputy sheriffs are per se policy makers is inconsistent with important First Amendment rights…”

“Political and free speech activities alone cannot make an employee a policy maker. If this were so, any employee entering the political arena to oppose re-election of the head of her office would become a policy maker and would thus be subject to retaliation.”

“The actual, not the possible, duties of an individual employee determine whether political loyalty is appropriate for the effective performance of her job.”

“The critical inquiry is the job actually performed.”

“The District Court thus erred in granting Summary Judgment based on a holding that deputy sheriffs in California are policy makers and may be fired for the exercise of their First Amendment Rights.”

The Ninth Circuit did not go so far as to hold that there are no circumstances under which a deputy sheriff could be considered a “policy maker.” It insisted, however, that a deputy sheriff would not be considered a “policy maker” unless an analysis of the deputy’s duties were undertaken, and the duties were significantly more managerial, supervisory, and/or administrative than those performed by DiRuzza.

I am pleased to have participated in this significant case, and to send the message to law enforcement executives, and particularly our county sheriffs, that you cannot expect to deny your deputies significant duties and influence in your administration, and then fire them for their refusal to support your incumbency in office.

It is bad enough that law enforcement officers have been burdened with the legacy of a “code of silence”, it would be fatal to effective and impartial law enforcement if our peace officers were forced to subscribe to a “code of patronage” to an inept or unqualified superior. I am happy to say that this heavy cloud over our heads dissipated and disappeared with this decision.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.