February 20, 1979
AARON FINKEL AND ALAN TABAKMAN, PLAINTIFFS-APPELLEES,
PETER BRANTI, AS PUBLIC DEFENDER OF ROCKLAND COUNTY, DEFENDANT-APPELLANT.
Present: HONORABLE LEONARD P. MOORE, HONORABLE WALTER R. MANSFIELD, Circuit Judges; HONORABLE INZER B. WYATT, District Judge
This is an appeal from a judgment of injunction entered after a non-jury trial by Judge Broderick in the Southern District of New York. The appellant, Public Defender of Rockland County and a Democrat, was permanently enjoined from terminating the employment of the two appellees, Republicans, as Assistant Public Defenders. Judge Broaderick found that appellant had attempted to terminate their employment on the sole ground of their political beliefs. This judgment must be and is affirmed.
We are convinced that the District Court's findings and conclusions are not clearly erroneous. Fed. R. Civ. P. 52(a). Within the meaning of that standard, we have not formed "the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364 (1948).
It is clear that, under Elrod v. Burns, 427 U.S. 347 (1976), the appellees are entitled to the relief granted by the District Court.
We note the reliance of appellant on Mount Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977). That decision was that when constitutionally protected conduct is asserted as having caused a wrongful discharge or refusal to renew employment, the employer may defend by showing that he "would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." 429 U.S. at 287. Since Judge Broderick found that the attempted termination of employment in the case at bar was "solely" for political beliefs, a finding not clearly erroneous, his decision was wholly consistent with Mount Healthy.
An argument for appellant, stated in his brief and emphasized in oral argument, is that Assistant Public Defenders occupy a "policymaking" position (427 U.S. at 367), are confidential employees, and are thus not protected by the principle of Elrod v. Burns. The argument is attempted to be made from the fact that the position of Assistant Public Defender is in the "exempt class", that is, exempt from the provisions and protections of the New York Civil Service Law, specifically, Article 5, Section 75, of that Law. It is asserted that to be in the exempt class, a position must be found to be that of a policymaker or confidential employee. There is no basis for such an assertion. The exempt class has nothing to do with policymaking or confidentiality. The exempt class is defined in the Civil Service Rules and Regulations ( § 2.1(a)) as follows: "Positions in the exempt class are those, other than unskilled labor positions, for which competitive examinations or other qualification requirements are not practicable." It was even asserted at oral argument that an Assistant Public Defender is called a policymaker by the Civil Service Regulations. Our research has not led to any verification of the assertion; nothing of this sort has been found in the Regulations. We have no doubt that Judge Broderick was correct in concluding that an Assistant Public Defender was neither a policymaker nor a confidential employee.
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