at 1294. Differences within political parties are sometimes wider than those between parties. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment thus wisely concedes at 4 that "Plaintiff does not disagree that an 'intra-party affiliation' case, such as this one, should generally be evaluated similarly to a 'party affiliation' case."
A deputy who may act in the stead of a politically sensitive official is subject to the same ability of the state to allow consideration of political factors as the politically appointed official designating that deputy. Regan v. Boogertman, - F.2d - (Dkt. No. 92-7627, 2d Cir. Jan. 26, 1993, Slip op. 1161).
The statutes and the delegation of duties make the position of deputy election commissioner one calling for exercise of the politically selected commissioner's authority in proper circumstances and here a political one; with respect to this position the protection of the public is through balance of power rather than nonpolitical selection. I find Judge Sweet's opinion in Mirabella persuasive and conclude that the federal Constitution permits dismissal of a county deputy election commissioner because of political disagreements between the deputy and the commissioner for whom the deputy is entitled to act in circumstances defined by the statutes.
Plaintiff also presses a claim of denial of due process in connection with her dismissal based on absence of an opportunity to refute the commissioner's conclusion that the two had political differences. But no legitimate expectation of tenure was created given the explicit at-will nature of the position under state law. There is no claim that plaintiff was unaware of the political aspects of the job or dependency of the position on the "pleasure" of the appointing commissioner.
There is thus no state-created right or reasonable expectation of protection from dismissal on intra-party political grounds which could create a liberty or property interest under the Fourteenth Amendment here, no claim of defamatory stigma resulting from dismissal based on charges of misconduct, and no independent federal right to protection from at-will dismissal. See BAM Historic District Ass'n v. Koch, 723 F.2d 233, 236-37 (2d Cir. 1983); Carnes v. Parker, 922 F.2d 1506 (10th Cir 1991).
I do not discuss plaintiff's pendent state claims which I dismiss based on my dismissal of the federal claim. See Girard v. 95th Street & Fifth Ave. Corp., 425 U.S. 974 (1976). This is appropriate where the litigation is at an early stage and no persuasive reasons for retaining pendent state claims are advanced.
Dated: White Plains, New York
February 25, 1993
VINCENT L. BRODERICK, U.S.D.J.