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May 23, 1990


The opinion of the court was delivered by: Bartels, District Judge.


The plaintiff, Alexander M. Selkirk, Jr. ("Selkirk" or "plaintiff"), a former Assistant County Attorney for Suffolk County, filed this suit pursuant to 42 U.S.C. § 1983 against the County of Suffolk (the "County"), Suffolk County Attorney E. Thomas Boyle ("Boyle") and Deputy Suffolk County Attorney Meg O'Regan ("O'Regan"), seeking injunctive relief and monetary damages. He alleges that the defendants violated his civil rights under the First and Fourteenth Amendments to the Constitution by terminating his employment for purely political reasons. He further alleges that the County has a custom, policy or practice of discharging individuals based upon their political beliefs. The defendants deny these allegations and move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure claiming inter alia that (a) even if plaintiff's termination was politically motivated he has failed to state a cognizable claim; (b) there was a valid apolitical reason for plaintiff's dismissal; and (c) Boyle and O'Regan are entitled to qualified immunity.


In March 1980 Republican County Attorney David H. Gilmartin appointed Selkirk, also a Republican, an Assistant County Attorney for Suffolk County, a position which is exempt from the New York Civil Service Law and is in the nature of an at will employment, i.e., he serves at the pleasure of the County Attorney. The defendants admit that an assistant county attorney can effectively discharge his duties regardless of his political affiliation.*fn1

It is also undisputed that initially Selkirk was assigned to the Torts Unit where he represented the County in negligence actions brought against it. Typically Selkirk was responsible for preparing and trying to conclusion slip and fall and automobile accident cases, however, he had no independent authority to enter into any settlements. In February 1986, Selkirk was transferred to the Family Court where he remained until March 1987. While assigned to the Family Court Selkirk represented the Department of Social Services and its clients in support related matters. During the balance of his tenure Selkirk was involved in the trial of paternity cases, the disposition and trial of cases involving juvenile delinquents and persons in need of supervision, and the enforcement of support proceedings under the Uniform Support of Dependent's Act. At no time did Selkirk exercise discretion in any matter even remotely related to policymaking. Furthermore, during his term of employment Selkirk did not hold a supervisory position nor did any attorneys report to him.

In January 1988 Boyle, who is a member of the Democratic Party, was appointed County Attorney for Suffolk County. Following his appointment Boyle became aware of problems within the Family Court unit and asked Meg O'Regan, then chief of that bureau, to draft a reorganization plan, execution of which entailed the evaluation of attorneys assigned to that unit, including Selkirk, whom she recommended be dismissed for incompetence.*fn2 Selkirk's first personal encounter with Boyle occurred on May 3, 1988, at which time Boyle indicated that he intended to terminate Selkirk's employment. He did, however, offer Selkirk the option of voluntarily submitting his resignation and told him to think it over. On May 6, 1988, O'Regan, who is also a member of the Democratic Party, reiterated Boyle's position and Selkirk advised her that he would not submit his resignation. Subsequently, on May 9, 1988, Selkirk was informed that effective May 13, 1988, his employment would be terminated.

Selkirk alleges that his discharge was politically motivated. He maintains that Boyle terminated him because generally, as Republican Committeeman for the Town of Islip*fn3 he was involved in political matters and specifically, because he actively campaigned for and supported the Republican candidate for County Executive*fn4 in the 1987 general election. In addition, Selkirk alleges that all the assistant county attorneys who were members of the Islip Town Republican Committee and numerous other assistants who supported the Republican candidate for County Executive in 1987 were asked to submit their resignation. Selkirk further alleges that with only one exception, himself, all of the other assistants from the Town of Islip acceded to Boyle's request and submitted letters of resignation. Furthermore, Selkirk alleges that the vacancies created by their departure were filled by members and supporters of the Democratic Party.

On the other hand, Boyle maintains that at the time he dismissed Selkirk he was unaware of Selkirk's political affiliation or that he was a Republican Committeeman for the Town of Islip. Furthermore, he alleges that he discharged Selkirk because he was incompetent, not because he was a Republican who actively campaigned for Republican candidates. Boyle claims that O'Regan's random audit of Selkirk's performance revealed a pattern of gross incompetence. Specifically, O'Regan noted that a Family Court proceeding was dismissed because Selkirk failed to call essential witnesses and Selkirk's demeanor, both in and out of court, was unprofessional and amateurish. O'Regan reported that Selkirk (1) was, at times, ill-prepared for court appearances; (2) occasionally read magazines or slept while court was in session; (3) often spent several hours a day sleeping, reading or making personal phone calls in his office; and (4) avoided cases that were assigned to him. Boyle alleges that his decision was also based on memoranda placed in Selkirk's personnel file by the preceding county attorney — who, like Selkirk, was a Republican — which indicated that Selkirk had previously been disciplined for unprofessional conduct.


  The standard for granting summary judgment is well known.
Only when it appears "that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law," is summary judgment granted. Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); Lund's Inc. v. Chemical Bank,
870 F.2d 840, 844 (2nd Cir. 1989); Donahue v. Windsor Locks Bd. of Fire
Comm'rs, 834 F.2d 54, 57 (2nd Cir. 1987). Moreover, in
determining whether a genuine issue has been raised, a court
must resolve all ambiguities and draw all inferences against
the moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam);

Donahue, 834 F.2d at 57; Winant v. Carefree Pools, 709 F. Supp. 57
 (E.D.N.Y.), aff'd, 891 F.2d 278 (2nd Cir. 1989) (unpublished
opinion). Last, while "summary judgment allows the Court to
dispose of meritless claims before becoming entrenched in a
frivolous and costly trial" . . . the Court is cautioned,
however, that summary judgment must be "used selectively to
avoid trial by affidavit." (Citations omitted). Donahue, 834
F.2d at 57; Winant, 709 F. Supp. at 59. The claimed legitimate
apolitical reasons offered by the defendants for Selkirk's
dismissal, along with their denial that Selkirk was terminated
because of his political affiliation, pose crucial factual
matters which cannot be determined by the Court in a motion for
summary judgment. O'Connell v. Gorski, 715 F. Supp. 1201, 1203
(W.D.N.Y. 1989).

A. Failure to State a Cognizable Claim

The defendants allege that notwithstanding any factual dispute, they are entitled to summary judgment because, as a matter of law, political affiliation is an appropriate requirement for an assistant county attorney of Suffolk County, and since Selkirk's political affiliation differs from Boyle's he can not satisfy the condition.

The genesis of any discussion with respect to political patronage dismissals begins with two seminal Supreme Court cases, Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). In Elrod the Court held that the dismissal of public employees based strictly on their party affiliation could not withstand constitutional scrutiny under the First Amendment unless the firing authority could demonstrate that the position involved some type of "policymaking" responsibility. The corollary, of course, is that an individual with "policymaking" responsibility could not challenge their dismissal, even if it was politically motivated.

In Branti the Supreme Court evaluated the civil rights claim of two assistant public defenders who had been dismissed for political reasons, and held that allegiance to the political party in control of the county government was not an appropriate requirement for the position. Recognizing a distinction between public defenders, whose primary responsibility is to represent individual citizens in controversies with the State, Id. at 519, 100 S.Ct. at 1295 and prosecuting attorneys, who have "broader public responsibilities," the Court left open the question this Court must answer — whether prosecuting attorneys "could be dismissed on grounds of political party affiliation or loyalty." Id. at 519 ...

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