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DIEDERICH v. COUNTY OF ROCKLAND

April 3, 1998

MICHAEL D. DIEDERICH, JR., Plaintiff,
v.
THE COUNTY OF ROCKLAND, C. SCOTT VANDERHOEF, COUNTY EXECUTIVE, and PAUL NOWICKI, COUNTY ATTORNEY, Defendants.



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 Plaintiff Michael Diederich, Jr., acting pro se, brings this action asserting that he was discharged from his position as a part-time Rockland County Assistant County Attorney in violation of his rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution; and in violation of his due process and equal protection rights under the New York State Constitution, New York State Executive Law § 296, New York Public Officers Law, and New York Civil Service Law.

 Diederich also seeks taxpayer relief on the grounds that "democracy" and the "republican form of government" are harmed when political patronage serves as the basis for public employment decisions, and that taxpayers are harmed by government deception in representing that political patronage does not influence personnel decisions. Defendants have moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure and for Rule 11 sanctions. Diederich cross-moves for summary judgment on an unasserted breach of contract claim and his claim under the First Amendment. Diederich also moves for disqualification of the defense attorneys and for permission to file a supplemental complaint asserting retaliation against him in violation of his First and Fifth Amendment rights under the United States Constitution. For the reasons stated below, defendants' motion to dismiss is granted and their motion for Rule 11 sanctions is denied. Plaintiff's motions to file a supplemental complaint and for summary judgment on his First Amendment claims are denied.

 I. Diederich's First Amendment Claim

 Diederich's claim arises from the precise facts and relies upon the same legal arguments only recently rejected by the Court of Appeals in Gordon v. County of Rockland, 110 F.3d 886 (2d Cir. 1997), cert. denied, U.S. , 139 L. Ed. 2d 34, 118 S. Ct. 74 (1997). In Gordon, as here, the plaintiffs were Assistant County Attorneys in Rockland County who were terminated when Paul Nowicki was elected Rockland County Executive in 1993. Id. at 887. Plaintiffs brought suit against Vanderhoef, Nowicki, and Rockland County under 42 U.S.C. § 1983, alleging that their dismissal was politically motivated and violated the First Amendment. Id. The Court found that the attorneys served as legal advisors to the various departments of county government for which they worked, and represented the County in that capacity. Id. at 888. Applying the factors set forth in Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994) to determine whether the plaintiffs were entitled to first amendment protection against politically-motivated dismissal, the Gordon Court held that "Assistant Rockland County Attorneys are . . . exempt from First Amendment protection against politically motivated dismissal." 110 F.3d at 891.

 The Gordon holding applies with equal force to this case. Diederich attempts to factually distinguish his job from that of the Gordon plaintiffs, and contends that although he held the designation "assistant county attorney," he, in practice, worked for the Department of Solid Waste. Diederich, however, ignores the fact that the Gordon court addressed this question and concluded: "The idea that job performance (rather than job description) should control Elrod-Branti analysis has been consistently rejected by this court and others." Id. at 888. Thus, the written description of plaintiff's job controls. *fn1" See also Meeks v. Grimes, 779 F.2d 417, 419 n.1 (7th Cir. 1985) ("our focus is on the 'inherent powers' of the office, not what any individual officeholder actually does").

 Like the plaintiffs in Gordon, Diederich was charged with the "responsibility for representing the county in court cases and in the performance of other legal work." Listed among his work activities were: "Researches the law and renders opinions to the County Legislature and department heads as directed by the County Attorney." As the Gordon court found, such duties make it "difficult to fathom how such responsibilities can be undertaken and done well without . . . 'political or social philosophy [making] a difference in the implementation of programs.'" Gordon, 110 F.3d at 890 (quoting Savage v. Gorski, 850 F.2d 64, 69 (2d Cir. 1988)).

 Further, while Diederich attempts to distinguish Gordon on the grounds that defendants are now transforming assistant county attorneys into permanent civil service employees, this argument is irrelevant to Diederich's claims. *fn2" It is undisputed that when Diederich was employed as a part-time assistant county attorney, he did not have civil service protection. This Court finds, therefore, that Gordon v. County of Rockland is fully applicable to Diederich's claims. Diederich's First Amendment claims are therefore dismissed, as political affiliation was an allowable basis for Diederich's discharge. *fn3" Accordingly, I also deny Diederich's motion for summary judgment on his First Amendment claims.

 II. Due Process Claim

 Because Diederich's dismissal was permissible, his Fifth and Fourteenth Amendment due process claims, asserting that he was terminated without notice, hearing, or just cause, must be dismissed as well. In order to establish a valid claim for deprivation of procedural due process, Diederich must show that he had a property interest in his position and was deprived of that interest. Dwyer v. Regan, 777 F.2d 825, 829 (2d Cir. 1985). In order "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). In the realm of public employment, our Circuit has held that "a property interest arises only where the state is barred whether by statute or contract, from terminating (or not renewing) the employment relationship without cause." S & D Maintenance Co., Inc. v. Goldin, 844 F.2d 962, 967 (2d Cir. 1988).

 Diederich has not sufficiently alleged a property interest in his position, which was not civil service protected, and at which he served at the pleasure of the County Attorney. N.Y. County Law § 502 (McKinney 1991). Rather, he alleges only that "Upon information and belief, terminating a public servant's employment without articulating that this was done for reasons of political party affiliation potentially stigmatizes the employee and deprives the employee of legitimate interest in not being arbitrarily deprived of employment." Further, because the Gordon Court held that dismissal of an Assistant Rockland County Attorney on the grounds of political affiliation did not deprive plaintiffs of any constitutional right, Diederich's due process claim is dismissed as well.

 III. Equal Protection Claim

 Diederich also asserts an equal protection claim, contending that by subjecting him as a part-time assistant county attorney to a political firing, the defendants have violated his rights to equal protection. *fn4" Because the right to be free from political discharge involves neither a suspect class nor a fundamental right, defendants' decision should be judged under the rational basis standard. See, e.g., Moccio v. New York State Office of Court Administration, 95 F.3d 195, 201 (2d Cir. 1996). A classification involving neither fundamental rights nor proceeding along suspect lines is "accorded a strong presumption of validity." Heller v. Doe, 509 U.S. 312, 319, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993). Under this standard, "a classification 'must be upheld against equal protection challenges if there is any ...


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