
USCA1 Opinion

	




           June 6, 1996                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-2167                             WILLIE VICTOR ORTIZ-PI ERO,                                Plaintiff, Appellant,                                          v.                                VICTOR RIVERA-ARROYO,                     INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                                     ERRATA SHEET             The opinion of this Court  issued on May 15, 1996, is  amended as        follows:             Cover  page:   Change "[Hon.  Hector M.  Laffitte, U.S.  District                                                                ______________        Judge" to "Hon. Jaime Pieras, Jr., Senior U.S. District Judge"         _____                              __________________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-2167                             WILLIE VICTOR ORTIZ-PI ERO,                                Plaintiff, Appellant,                                          v.                                VICTOR RIVERA-ARROYO,                     INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,                                Defendants, Appellees.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Carlos A. Del Valle Cruz for appellant.             ________________________             Elisa Bobonis Lang, with whom Jos  R. Gaztambide and Gaztambide &             __________________            __________________     ____________        Plaza were on brief for appellees.         _____                                                                                      ____________________                                     May 15, 1996                                                                                      ____________________                                          2                                          3                    CYR,  Circuit Judge.    Plaintiff  Willie Victor  Ortiz                    CYR,  Circuit Judge.                          _____________          Pinero ("Ortiz") appeals from  a district court judgment dismiss-          ing  his  political discrimination  claims  against  the City  of          Gurabo, Puerto Rico, and its incumbent Mayor.  We affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    In  1981,  the City  of  Gurabo  enacted an  ordinance,          pursuant to P.R.  Laws Ann.  tit. 3,    1351, designating  eleven          municipal offices as  positions of "trust"  or "confidentiality,"          including  the directorship  of  the Office  of Federal  Programs          ("OFP"), the municipal agency charged with obtaining and adminis-          tering  federal funding for  various public works  projects.  See                                                                        ___          Municipal Ordinance No. 3, Series 1981-82 (Sept. 14, 1981).                    In  August  1991,  then-Mayor  Ramon  Garcia  Caraballo          appointed Ortiz, a fellow member  of the Popular Democratic Party          (PDP),  as OFP Director, and allegedly  described the position to          Ortiz  as a  non-"confidence"  position.   Mayor Caraballo  later          extended  Ortiz' appointment  through August  1993.   In November          1992, however,  after the PDP  mayoral candidate was  rejected by          the electorate,  outgoing Mayor Caraballo notified  Ortiz that he          should  resign  forthwith  because  the OFP  directorship  was  a          "confidential" position which the new administration was entitled          to fill.   Ortiz refused to resign.  Thereafter, the incoming New          Progressive  Party (NPP) mayor,  defendant-appellee Willie Victor          Rivera Arroyo ("Rivera"), dismissed Ortiz.                      In due  course, Ortiz initiated the  present action for                                          4          damages and reinstatement under 42 U.S.C.   1983 against the City          of Gurabo and Mayor Rivera, claiming political discrimination and          deprivation  of  his property  interest  in  continued employment          without the benefit  of a pretermination hearing, in violation of          the First and Fourteenth Amendments to the  United States Consti-          tution.   The defendants moved for summary judgment on the ground          that the OFP directorship is a "trust" position for which compat-          ible  political  affiliation  constitutes  a  legitimate qualifi-          cation.   See  Branti v. Finkel,  445 U.S.  507 (1980);  Elrod v.                    ___  ______    ______                          _____          Burns, 427 U.S.  347 (1976).  Their  motion was accompanied  by a          _____          written  "certification" from the  City personnel office defining          the responsibilities  of the OFP directorship.1   After determin-          ing  that the evidence compelled a finding that the OFP director-          ship is  a  trust position,  the district  court granted  summary          judgment for defendants on  all claims.  Ortiz-Pinero v.  Rivera-                                                   ____________     _______          Acevedo, 900 F. Supp. 574 (D.P.R. 1995).           _______                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Standard of Review          A.   Standard of Review               __________________                    We review de novo,  to determine whether the pleadings,                              __ ____                                        ____________________               1The certification  lists five responsibilities:   (1) "[t]o          direct,  coordinate  and  supervise  all the  operations  of  the          Federal  Programs Office"; (2)  "[t]o see  to the  compliance and          good  functioning of  said  Office";  (3)  "[t]o submit  all  the          corresponding  reports to  the Municipal  Services Administration          Program, the  State Agency  delegated upon  by the  C.D.G.B. Pro-          gram";  (4) "[t]o  take part  in seminars  and training  that are          offered on the Federal Programs as well as to accompany the Mayor          in all  matters concerning  the Program"; and  (5) "[t]o  perform          other similar duties as assigned."                                           5          depositions, answers to interrogatories,  and admissions on file,          together with any affidavits, show 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.   See O'Connor v. Steeves, 994 F.2d                                          ___ ________    _______          905,  906-07 (1st  Cir.), cert.  denied, 114  S. Ct.  634 (1993).                                    _____  ______          Although all  competent evidence  and  reasonable inferences  are          viewed in  the light most favorable to Ortiz, he cannot carry the          day on mere "`conclusory  allegations, improbable inferences, and          unsupported  speculation.'"   Id. (quoting  Medina-Munoz v.  R.J.                                        ___           ____________     ____          Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).          ____________________          B.   First Amendment Claim          B.   First Amendment Claim               _____________________               1.   Applicable Law               1.   Applicable Law                    ______________                    In a political discrimination case, the plaintiff first          must show that party affiliation was a  substantial or motivating          factor  for the challenged action.   See Mount  Healthy City Sch.                                               ___ ________________________          Dist. Bd.  of Educ. v.  Doyle, 429  U.S. 274, 287  (1977); Jirau-          ___________________     _____                              ______          Bernal v.  Agrait, 37 F.3d  1, 3  (1st Cir. 1994).2   The  burden          ______     ______          then shifts to defendants to establish either a nondiscriminatory                                                 ______          reason for the dismissal, see Ferrer  v. Zayas, 914 F.2d 309, 311                                    ___ ______     _____          (1st Cir.  1990), or that  plaintiff held a  "political" position                            __          for which party affiliation constituted an appropriate qualifica-          tion  for continued employment, see  Branti, 445 U.S.  at 518; De                                          ___  ______                    __          Choudens v. Government Dev. Bank of P.R., 801 F.2d 5, 8 (1st Cir.          ________    ____________________________          1986),  cert. denied, 481 U.S.  1013 (1987).   Thus, the Branti/-                  _____ ______                                     ______ _                                        ____________________               2We  assume,  without  deciding, that  there  is  sufficient          competent  evidence  that  political  affiliation  motivated  the          dismissal.                                           6          Elrod defense is designed  to ensure that "representative govern-          _____          ment not be undercut by tactics obstructing the implementation of          policies  of  the new  administration, policies  presumably sanc-          tioned by the electorate." Elrod, 427 U.S. at 367.                                      _____                    Whether a  government position is  "political" does not          depend  upon  such  loose-fitting  labels  as  "confidential"  or          "policymaking," but on  the substance of  the duties inherent  in                                      _________ __  ___ ______ ________  __          the  position itself.    Branti, 445  U.S. at  518  (noting:   "a          ___  ________ ______     ______          position may be appropriately considered political even though it          is neither  confidential nor policymaking in  character," and, by          the same token, party affiliation is not a relevant consideration          for  all  policymaking  or  confidential  positions);  see Romero                                                                 ___ ______          Feliciano v. Torres  Gaztambide, 836  F.2d 1, 3  (1st Cir.  1987)          _________    __________________          (abjuring reliance on "rigid labels" in Branti/Elrod analysis).                                                    ______ _____                    We employ  a two-part  inquiry to  identify "political"          positions under the Branti/Elrod analysis:                               ______ _____                    First,  we inquire whether  the overall func-                    tions  of the employee's department or agency                    involve  "decision  making  on  issues  where                    there  is room for  political disagreement on                    goals or their  implementation."  Second,  we                    decide  whether the  particular responsibili-                    ties of the plaintiff's position,  within the                    department  or agency,  resemble those  of "a                    policymaker,  privy to  confidential informa-                    tion,  a communicator,  or some  other office                    holder  whose function  is  such  that  party                    affiliation  is  an  equally appropriate  re-                    quirement"  for continued tenure.   Among the                    indicia  material to  the second  element are                    "`relative  pay, technical  competence, power                    to control  others, authority to speak in the                    name  of   policymakers,  public  perception,                    influence on programs,  contact with  elected                    officials,  and  responsiveness  to  partisan                    politics and political leaders.'"                                                                                                   7          O'Connor, 994  F.2d at  910  (quoting Jimenez  Fuentes v.  Torres          ________                              ________________     ______          Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert.          __________                                                  _____          denied, 481 U.S. 1014 (1987)) (other citations omitted).            ______                    Although obviously fact-intensive, the  ultimate deter-          mination whether a government  position is "political" presents a          question of law  for the court, rather than an  issue of fact for          jury  resolution.  See McGurrin Ehrhard v. Connolly, 867 F.2d 92,                             ___ ________________    ________          93 (1st  Cir.  1989) (Breyer,  J.)  (noting that  the  "important          constitutional and governmental  interests surrounding the appli-          cation of the [Branti/Elrod] exception" make it more suitable for                         ______ _____          determination by the court).  Examining all competent evidence in          the light most  favorable to Ortiz, we conduct  a de novo assess-                                                            __ ____          ment of the relevant  factors, see In re  Howard, 996 F.2d  1320,                                         ___ _____  ______          1327 (1st Cir. 1993) (plenary appellate review generally accorded          issues of law), and "make a common sense judgment in light of the          fundamental purpose to be served [by the Branti/Elrod analysis]."                                                   ______ _____          Jimenez Fuentes, 807 F.2d at 242.            _______________               2.   The OFP and "Partisan Political Interests"               2.   The OFP and "Partisan Political Interests"                    _________________________________________                    The OFP  is charged with  marshaling and  administering          the million  or so dollars  obtained annually from  federal agen-          cies,  and with doling it  out for various  public works projects          within the municipality.  Thus, the OFP unmistakably is a munici-          pal  "department  or  agency [whose  overall  functions]  involve          `decision making  on issues  where there  is  room for  political          disagreement  on goals or  their implementation.'"  O'Connor, 994                                                              ________          F.2d  at 910 (citations omitted).  Indeed, its inherent responsi-                                          8          bilities inevitably  entail the kinds of  discretionary decisions          traditionally associated with municipal politics.3   Accordingly,          we  conclude  that  defendants  met the  first-prong  test  under          Jimenez Fuentes.4           _______________               3.   The Duties Inherent in the OFP Directorship                3.   The Duties Inherent in the OFP Directorship                     ___________________________________________                    Under  the second  prong, we  examine any  evidence the          defendants may have adduced that "the particular responsibilities                                                __________ ________________                                        ____________________               3See id. (noting that the first prong of the Jimenez Fuentes                ___ ___                                     _______________          test  was readily met  where the  municipal department  for which          plaintiff worked was responsible for  developing and implementing          public  works  programs, since  "[e]lections  often  turn on  the          success or  failure of the incumbent  [administration] to provide          these services"); Jimenez Fuentes, 807 F.2d  at 242 (finding that                            _______________          regional  director of  commonwealth  housing department,  charged          with ameliorating housing conditions  among low and middle income          families, was a position  "relate[d] to partisan political inter-          ests"); accord  Juarbe-Angueira v.  Arias, 831  F.2d 11,  15 (1st                  ______  _______________     _____          Cir. 1987) ("Where, how,  and when the government will  repair or          reconstruct public buildings, . . . when and where money is to be          spent, may  well be a  matter of considerable  interest to .  . .          political leaders."), cert. denied,  485 U.S. 960 (1988); Mendez-                                _____ ______                        _______          Palou v. Rohena-Betancourt, 813  F.2d 1255, 1260 (1st  Cir. 1987)          _____    _________________          (finding Administration  for Environmental Quality  Board engaged          in a "politically-sensitive mission" for purposes of Branti/Elrod                                                               ______ _____          analysis).               4Ortiz  also contends that  the first  prong of  the Jimenez                                                                    _______          Fuentes test should focus upon the City as the pertinent "depart-          _______          ment or  agency," not on  the OFP.   Ortiz does not  contend that          this shift in  focus would alter the  first-prong inquiry itself,          since under  either scenario the  City or the  OFP would have  to          undertake the politically sensitive mission of allocating federal          funds among  various constituencies within the  municipality.  He          argues, instead, that the shift in focus could affect the inquiry          under prong two,  see infra Section II.B.3(b),  since Ortiz could                            ___ _____          then be viewed  as a  subordinate City official  rather than  the          head of  the first-prong "department or agency"  (i.e., the OFP).          ____          Be  that as it may, the attempt  to distance Ortiz from political          decisionmaking not only distorts the function of the second-prong          inquiry under Jimenez Fuentes, but runs  counter to our precedent                        _______________          in  O'Connor, where we focused  the inquiry under  prong one upon              ________          the municipal department of public works, rather than the munici-                        __________                                  _______          pality.  See O'Connor, 994 F.2d at 907-08; supra note 3.          ______   ___ ________                      _____                                          9          of the plaintiff's position, within the [OFP], resemble those  of          `a policymaker,  privy to confidential information,  a communica-          tor,  or some  other office  holder whose  function is  such that          party affiliation  is  an equally  appropriate  requirement'  for          continued tenure."  O'Connor, 994 F.2d at 910 (citations omitted)                              ________          (emphasis added).                    a)   Lack of Written Job Description                    a)   Lack of Written Job Description                         _______________________________                    Ortiz first  argues that summary judgment  is precluded          because  the City of Gurabo has no official, written job descrip-          tion (a.k.a. Form OP-16) for its OFP Director, nor indeed for any                                                                        ___          of its municipal  employees.  He  relies upon  cases in which  we          have held that courts  should determine the duties inherent  in a          particular   position  by  examining  the  governmental  entity's          written, signed job descriptions, rather than the duties actually          performed  by the plaintiff or prior occupants of the position in          question. See, e.g., Mendez-Palou  v. Rohena-Betancourt, 813 F.2d                    ___  ____  ____________     _________________          1255, 1260  (1st Cir. 1987).   Ortiz would have  us conclude that          the absence  of any written  job description, combined  with con-          flicting circumstantial  evidence as  to the duties  performed by          the OFP director, leaves unresolved issues of material fact which          preclude summary judgment.   See Romero Feliciano, 836 F.2d  at 3                                       ___ ________________          ("[W]e have considered the OP-16 dispositive in other Puerto Rico          political  discrimination cases .  . . .").   In so  doing, Ortiz          misconstrues  our precedents  and the  nature of the  issue under          consideration.                    Although  written, signed job  descriptions may provide                                          10          highly probative evidence as  to the responsibilities inherent in          a particular  government position,  and may even  prove "disposi-          tive," see id. at 3,  we have never suggested that their  absence                 ___ ___                                            _______          is  dispositive, cf.  Mendez-Palou, 813  F.2d at  1260 ("Whenever                           ___  ____________                       ________          possible,  we will rely  upon this  document because  it contains          ________          precisely the information we need . . . .")  (emphasis added), or          precludes  a defendant  from  resorting to  other evidence,  see,                                                                       ___          e.g., Romero Feliciano, 836 F.2d at 3 (noting that defendant "may          ____  ________________          present additional  evidence at  trial" besides the  disputed OP-          16).  Nor does the absence  of a written, signed job  description          preclude  summary judgment,  so long  as defendants  adduce other          competent evidence as to the responsibilities inherent in the OFP          directorship from  which the  "political" nature of  the position          can be determined as a  matter of law, see McGurrin Ehrhard,  867                                                 ___ ________________          F.2d at 93 (ultimately, the Branti/Elrod defense poses a question                                      ______ _____          of  law),  even  though some  nonessential  facts  may remain  in          dispute.   See Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1117                     ___ _____________    ____________          n.5 (1st Cir. 1989).5                     b)   The Responsibilities Inherent in the Position                     b)   The Responsibilities Inherent in the Position                         _____________________________________________                    Ortiz  contends  that  the  district  court incorrectly                                        ____________________               5The  district court  relied on  the lack  of a  written job          description as probative  evidence that the OFP directorship is a                                                                       __          "political" position.  Ortiz-Pinero, 900  F. Supp. at 580 (citing                                 ____________          Mendez-Palou, 813 F.2d at 1262-63 ("`[A]n employee with responsi-          ____________          bilities  that are  not well defined  or are of  broad scope more          likely functions in  a policymaking  position.'") (citing  Elrod,                                                                     _____          427 U.S. at  368)).  But since  the City had  adopted no job  de-          scription  for any position, cf.  supra note 1,  and it obviously                         ___           ___  _____          could  not reasonably  be inferred  on that  basis that  all City          positions are "political," we give no weight to such an inference          in the present context.                                           11          assessed the  record evidence relating to the  duties inherent in          the OFP directorship.   He claims that he administered the OFP in          a  politically-neutral fashion  and  took no  meaningful part  in          mayoral  "policymaking"  or   "political"  decisions   concerning          federal  funding  allocations  among  the  various constituencies          within the municipality.                      As previously  noted, probative indicia that a position          is  "political"  include  "`relative  pay,  technical competence,          power  to control  others,  authority to  speak  in the  name  of          policymakers, public perception,  influence on programs,  contact          with  elected officials, and  responsiveness to partisan politics          and  political leaders.'"  O'Connor, 994  F.2d at  910 (citations                                     ________          omitted).   Defendants adduced evidence that Ortiz had not had to          compete  with other candidates  for the OFP  directorship.  More-          over, Ortiz concedes that he was no "expert" in the financial and          accounting aspects of the OFP's responsibilities.  Thus, we think          the evidence does  not support  a fair inference  that Ortiz  was          selected for  his managerial  or technical expertise.   Moreover,          Ortiz' prominent PDP affiliation,  see Ortiz Deposition at 179-81                                             ___          (acknowledging  that,  at  various  times, he  was  a  "political          activist," electoral commissioner,  and campaign finance director          for the PDP and PDP candidates), plainly permits a fair inference          that  he was  selected  for the  OFP  directorship based  on  his          "political" service  and talents.  See McGurrin Ehrhard, 867 F.2d                                             ___ ________________          at 93  (finding position "political" where  plaintiff, formerly a          clerical  employee, was tapped for position as director of secre-                                          12          tary of state's  regional office, after  having worked on  Secre-          tary's  state  senate  campaign,  and where  Secretary  "did  not          advertise  the job, solicit applications,  or . .  . consider any          [other] applicant").                      More importantly, Ortiz was  appointed to head the OFP,                                                              ____          whose overall  functions clearly  involved  "`decision making  on          issues where there is room for political disagreement on goals or          their  implementation,'" under  the  first prong  of the  Jimenez                                                                    _______          Fuentes test.   See supra Section  II.B.2.6  By his  own account,          _______         ___ _____          Ortiz was  in complete charge of  the OFP staff,7 as  well as the          applications for, and the administering of, all federal grant and          loan programs involving the City, amounting to approximately one-                                        ____________________               6See, e.g., O'Connor, 994 F.2d at 911 ("[W]hatever difficul-                ___  ____  ________          ties  we might face  in applying the second  prong of the Jimenez                                                                    _______          Fuentes test to subordinate  positions within the Department, the          _______          Superintendent's 'inherent responsibilities' .  . . plainly '"had          a  bearing on the partisan goals and policies"' of the Department          as  a whole.") (citations omitted); De Choudens, 801 F.2d at 9-10                                              ___________          (noting that it would  have been much more likely that  the posi-          tion would be considered "political" had plaintiff been president                                                                  _________          of  the bank,  rather  than senior  vice-president); cf.  Juarbe-                                                               ___  _______          Angueira, 831  F.2d at 15  (finding it not  "clearly established"          ________          that regional directorship of public building authority was other          than  a  "political" position,  even  though it  involved  only a          "'modicum' of 'policymaking responsibility,'" given that supervi-          sory  position  was  "moderately-high-level  position  within the          agency").                 7Ortiz  points out that he  supervised an OFP  staff of only          four persons (accountant, secretary, and two clerks).  As we have          noted, however, the  relative staff size, not  its absolute size,                               ________          affords the more illuminating insight.  See,  e.g., O'Connor, 994                                                  ___   ____  ________          F.2d at 911  n.3 (noting that,  on per-capita basis,  plaintiff's          supervision of smaller municipality-level staff may be equivalent          to supervision  of much bigger  staff in a  larger municipality);          McGurrin Ehrhard,  867 F.2d  at 95 (finding  position "political"          ________________          even  though plaintiff  supervised  four-person regional  office,          where  satellite branch was but one of two such offices in Massa-          chusetts).                                           13          third  of its municipal budget.  See Ortiz Deposition, at 29-30.8                                           ___                    Ortiz  reported  directly  to the  mayor,  rather  than          through  intermediaries, meeting with him on an average of six or          seven times a year.   Cf. Mendez-Palou, 813 F.2d  at 1260 (noting                                ___ ____________          that plaintiff  performed duties with  "only general instructions          and superficial supervision" from the administration).  He served          as the  mayor's "eyes"  and "ears," periodically  visiting public          work  projects and reporting back to the mayor on their progress.          See  McGurrin Ehrhard, 867 F.2d  at 95 (noting  that employee who          ___  ________________          acted as  "eyes and  ears" for secretary  of state engaged  in an          "overtly political  task[]").9   Such  first-person  (thus,  more          subjective) field assessments often influence policy formulation,          and policymaking influence, even though indirect, is an important                                        ____________________               8We reject the contention  that the April 1993 certification          of duties issued by the City personnel department, see supra note                                                             ___ _____          1, is without any probative force  because it is unsigned and was          not prepared until after Ortiz left office.   Of course, an OP-16          signed by the employee has added probative value since it consti-          tutes the employee's  contemporaneous "admission" concerning  the          duties inherent in the position.  But it does not follow that the          unsigned  certificate, by  which the  City prospectively  commits          itself  to  its description  of the  duties  inherent in  the OFP          directorship,  is without  probative  weight.   Although we  have          noted that an  unsigned OP-16 may  leave a factual dispute  as to          its authenticity, see  Romero Feliciano, 836  F.2d at 3-4,  Ortiz                            ___  ________________          asserts  no challenge either to the  authenticity or the validity          of the certification.   Nor  did we suggest  in Romero  Feliciano                                                          _________________          that  such evidence should be completely discounted in a trial on          the merits.                 9See Jimenez Fuentes, 807 F.2d at 246 (noting that  "politi-                ___ _______________          cal" position  holders, like directors, "monitor  the progress of          the agency's programs and  thus gauge the success of  the Admini-          stration's . . .  policies"); cf. Mendez-Palou, 813 F.2d  at 1260                                        ___ ____________          (finding it relevant that  plaintiff "represents the President in          activities  .  . .  [and gives]  top  level counselling  [to] the          President").                                          14          indicium of "political" positions.10                    Ortiz  admittedly  received  and  reviewed   copies  of          federal  audits  and  oversight  reports, including  the  Federal          Transit Administration's Triennial Review of the City's federally          funded transit program, which identified areas where the City was          not in compliance.  See Defendant's  Exh. 6; see also 49 U.S.C.                                ___                      ___ ____          5307(i) (2).  This  politically-sensitive report is precisely the          type  of  document whose  contents are  not  likely to  be shared          freely with any but the  mayor's trusted political confidants for          fear  it might become fodder  for the political  opposition.  Cf.                                                                        ___          Mendez-Palou, 813 F.2d at 1262-63 ("[W]e believe that an official          ____________          working in close contact with the head of a government agency  is          also more likely to be privy to a substantial amount of confiden-          tial information. . . .").                    Finally,  Municipal Ordinance  No. 3,  enacted in  1981          pursuant to P.R. Laws Ann. tit. 3,   1351, designates only eleven          municipal offices as  positions of "trust" or  "confidentiality,"          including  the  Director of  the  Office  of Federal  Programs.11                                        ____________________               10See McGurrin Ehrhard, 867  F.2d at 94 (noting that  plain-                 ___ ________________          tiff did not  have "final  authority to hire  or fire  employees,          [but]  she had 'input'"); Jimenez Fuentes, 807 F.2d at 245 ("That                                    _______________          Regional Directors do not have final decision-making authority is          not determinative . .  . . 'because such positions  [i.e., direc-          torships] are a natural  source of influential recommendations of          changes in policy.'") (citation omitted).               11Section 1351  of the Personnel Act  provides, in pertinent          part:                    1.   Each [commonwealth] agency shall present                    for  approval  of  the [Central]  Office  [of                    Personnel  Administration] a  plan containing                    the  confidential positions  by which  it de-                                          15          Consistent with  the ordinance,  former Mayor  Caraballo notified          Ortiz in  writing on  December 24,  1992, that  he was among  the          eleven  municipal officials who must  resign to make  way for the          incoming NPP administration.                      Against  this  formidable  array,  Ortiz   offers  five          arguments.   First, he contends that Municipal Ordinance No. 3 is          a nullity  because the defendants have not shown that it was duly          submitted to  the Central Office of  Personnel Administration for          approval, as supposedly required  by the Personnel Act.   But see          ________                                                  ___ ___          supra note 11.  This claim is unavailing.            _____                    On its  face, the ordinance  reflects that it  had been          submitted  to  the  Central  Office  of  Personnel Administration          ("Central  Office") for review.  See Municipal Ordinance No. 3,                                    ______   ___          3.  Thus, the burden lay with Ortiz to show that the City did not          comply  with the  statutory requirements,12  and he  proffered no                                        ____________________                    sires to operate.  In the case of municipali-                    ties, the Municipal Assembly shall follow the                    ordinance  or  resolution approving  the plan                    submitted by  the mayor and shall  send it to                    the Office for the sole purpose of ascertain-                               ___ ___ ____ _______ __ __________                    ing that  the provisions of  section 1350  of                    ___ ____  ___ __________ __  _______ ____  __                    this title have been complied with.                    ____ _____ ____ ____ ________ ____          P.R. Laws Ann. tit. 3,   1351 (emphasis added).                12We recognize that  the burden of proof normally  shifts to          the  governmental entity  to establish  that the  substantive re-                                                            ___________          quirements  of its  enactment comport  with the  First Amendment.          But we  have found  no authority, nor  can we  discern any  sound          reason, for shifting  the burden of  proof where the  challenging          party alleges only procedural irregularities of nonconstitutional                             __________          dimension in an ordinance-enactment  process.  See, e.g., Friends                                                         ___  ____  _______          of the City Market v. Old Town Redev. Corp., 714  S.W.2d 569, 575          __________________    _____________________          (Mo. Ct.  App.  1986)  ("Ordinances  are presumed  to  have  been          adopted in accordance with the requirements of the law . . . .").                                          16          evidence that the ordinance was not duly submitted to the Central          Office.   See O'Connor, 994  F.2d at 906-07  (noting that summary                    ___ ________          judgment  opponent  must proffer  more than  "'conclusory allega-          tions,  improbable  inferences,  and  unsupported  speculation'")          (citation omitted).  In all  events, the statutory language  does          not  purport to make submission to the Central Office a prerequi-          site to the validity of  Municipal Ordinance No. 3.   Rather, the                      ________          requirement of post-enactment compliance  "review" by the Central          Office, in  relation to  a municipal  ordinance, stands  in sharp                  __  ________ __  _ _________  _________          contrast to the heightened obligation of Commonwealth agencies to                                                   ____________ ________          seek Central  Office approval.  See P.R. Laws Ann. tit. 3,   1351                               ________   ___          (mayor's "plan" to be  submitted to Central Office "for  the sole          purpose of ascertaining  that the provisions  of section 1350  of          this title have been complied with").  See Appendix A for text of                                                 ___            1350.                    Second, Ortiz correctly notes that state laws identify-          ing  government positions  as "trust"  or "confidential"  are not          dispositive of  the  federal-law question  whether  a  particular          position  is "political."  See  Jimenez Fuentes, 807  F.2d at 243                                     ___  _______________          n.9.   On the other hand,  we have explained that  state laws and          municipal ordinances  designating positions as "trust" or "confi-          dential"    like  P.R. Laws Ann.  tit. 3,    1351, and  Municipal          Ordinance No. 3     are  entitled to "some  deference" under  the          Branti/Elrod  formula,  see Jimenez  Fuentes,  807  F.2d at  246;          ______ _____            ___ ________________          accord Juarbe-Angueira,  831 F.2d  at 14, especially  where other          ______ _______________          evidence clearly points in the same direction.                                          17                    Third, Ortiz attempts to  estop defendants from assert-          ing a Branti/Elrod defense by  pointing to the putative assurance                ______ _____          made to  him  by Mayor  Caraballo in  August 1991,  that the  OFP          directorship was not  a "trust"  position, see supra  p.2.   Even                                                     ___ _____          this evidence is not  hefty enough to ward off  summary judgment,          however.13                      For one  thing, application  of the equitable  estoppel          doctrine against governmental entities, including municipalities,          is  narrowly circumscribed.     See Heckler  v. Community  Health                                          ___ _______     _________________          Servs.  of Crawford County, 467 U.S. 51, 60-62 (1984).  Moreover,          __________________________          any  attempt to interpose estoppel  as a bar  to the Branti/Elrod                                                               ______ _____          defense must fail, since reliance on the Caraballo representation          would not have been  objectively reasonable in the circumstances.          See United States v. Javier  Angueira, 951 F.2d 12, 16 (1st  Cir.          ___ _____________    ________________          1991) (noting  that even if estoppel is available against govern-          mental entity,  "`the party  raising the [estoppel]  defense must          have reasonably relied on some "affirmative misconduct" attribut-          able to the  sovereign.'") (citations omitted); A.E.  Alie & Sons                                                          _________________          v. United States Postal Serv., 897  F.2d 591, 593 (1st Cir. 1990)             __________________________          (same).                                          ____________________               13We note, as  a threshold matter, that its admissibility is          far  from clear.  See Fed. R. Civ.  P. 56(e).  Even assuming that                            ___          former  Mayor Caraballo could  bind the  City by  his representa-          tions, see  Fed. R. Evid. 801 (permitting  "admissions" of party-                 ___                                                 ______          opponent),  it  is extremely  problematic  whether  the successor          ________          mayor, defendant Rivera, can be  bound, especially since the very          nature of the   1983 claim made by Ortiz appears  to preclude any          characterization of former Mayor Caraballo as a party "opponent."          As this  evidence is  otherwise deficient, however,  we need  not          determine its competence at this time.                                           18                    Immediately prior to his  appointment to the OFP direc-          torship,  Ortiz, concededly  a "political  activist," served  for          three  years as  City  assemblyman, a  position which  would have                                 ___________          brought  all City ordinances  within his  constructive knowledge.          See Texaco, Inc. v. Short, 454  U.S. 516, 531 n.25 (1982) (noting          ___ ____________    _____          that  all persons are charged with knowledge of the provisions of          duly enacted  statutes/ordinances); Deibler  v. City of  Rehoboth                                              _______     _________________          Beach,  790 F.2d  328, 331  (3d Cir.  1986) (same);  cf. Good  v.          _____                                                ___ ____          Dauphin County  Social Servs.  for Children  and Youth,  891 F.2d          ______________________________________________________          1087,  1091  (3d  Cir.  1989)  (reasonably  competent  government          officials should know laws  governing their conduct).  Similarly,          Ortiz  admitted to  having served  for four  years in  a previous          "trust" position,  as Regional Director of  the Administracion de          Derecho al Trabajo, making it highly unlikely that  he was not on          actual  notice of P.R. Laws  Ann. tit. 3,   1351,  or of the fact          that municipalities  were required  to designate  certain "trust"          positions by ordinance.                    __ _________                    Fourth, without  citing  either authority  or a  policy          rationale,  Ortiz  argues that  the  OFP  directorship cannot  be          considered a  "political" position since there  is no requirement          that the municipal assembly approve the mayor's selection for the          post.  We think this far too  thin a reed to warrant rejection of          the traditional Branti/Elrod criteria.  Many "political" appoint-                          ______ _____          ments  (e.g., to the executive staff of  a governor or mayor) are          not subject  to legislative approval, a  requirement which corre-          lates  more closely to  the issue of  political accountability in                                          19          the legislative branch, than to the partisan political attributes          of an executive position.                      Finally, Ortiz insists that the OFP directorship duties          actually  performed  by him  under  Mayor  Caraballo were  merely          administrative and  technical, that Caraballo  alone decided  how          federal  funds were to be  spent, and that  Ortiz merely informed          the mayor regarding the  administrative status of federal funding          applications.   These  claims  are insufficient  to overcome  the          well-supported legal determination, see  supra pp. 9-14, that the                                              ___  _____          OFP directorship  is a  "political"  position.   At most,  Ortiz'          contrary characterizations, fully credited, establish the servic-          es actually rendered by Ortiz while he served as the director, as          distinguished  from the responsibilities inherent in the position          itself.  Cf. Mendez-Palou, 813 F.2d at 1258 (actual duties not as                   ___ ____________          probative as inherent duties).   As the ultimate issue  presented          is one  of law, rather than  fact, McGurrin Ehrhard, 867  F.2d at                                             ________________          93, summary  judgment was warranted on  the political discrimina-          tion claim.          C.   Due Process Claim          C.   Due Process Claim               _________________                    Ortiz  advances  essentially  the  same   arguments  as          support  for the  due process  claim:   that he had  a legitimate          expectation of continued employment under commonwealth law, which          gave rise to a "property right" entitling him to a pretermination          hearing.  See Cleveland  Bd. of Educ. v. Loudermill, 470 U.S. 532                    ___ _______________________    __________          (1985).  The pretermination process due  a government employee is          a  matter of federal law,  see Rivera-Flores v.  Puerto Rico Tel.                                     ___ _____________     ________________                                          20          Co.,  64 F.3d 742, 749  (1st Cir. 1995),  whereas the preliminary          ___          question whether  a government  employee possessed  a protectable          "property  right,"  or  a  legitimate  expectation  of  continued          employment,  is controlled  by the  employment contract  or state          law.  See id.                ___ ___                     Since  Ortiz' employment  contract  included a  clause          permitting his unilateral, unconditional termination by the mayor          at any time, commonwealth or local law would be the only possible          basis for an  actionable claim to continued  employment.  Accord-          ingly,  Municipal Ordinance  No.  3  is  dispositive of  the  due          process  claim, since  it designates  the OFP  directorship as  a          "confidential" position,  pursuant to P.R.  Laws Ann.  tit. 3,             1351.  The  Personnel Act in turn defines "confidential" appoint-          ees as, inter alios, "those who intervene or collaborate substan-                  _____ _____          tially in the formulation  of public policy, who advise  directly          or render  direct services to  the head  of the agency,"  and are          subject to "free selection and removal." Id.   1350.  Thus, Ortiz                                                   ___          had  neither a property right  nor a contract  right to continued          employment  as OFP  Director,  and defendant-appellee  Rivera was          under no constitutional obligation to afford him a pretermination          hearing.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    The claims for damages are barred under the doctrine of          qualified immunity,  because Ortiz failed to  demonstrate that it          was "clearly  established" that  the OFP directorship  was not  a                                          21          "political"  position.   See Mendez-Palou,  813 F.2d  at 1259-60.                                   ___ ____________          Furthermore, since we conclude  as a matter of  law that the  OFP          directorship was  indeed a  "political" position, the  claims for          damages and reinstatement are foreclosed on the merits.  Finally,                  ___ _____________          the due-process claim fails because Ortiz possessed  no right to,          or reasonable expectation of,  continued employment as OFP direc-          tor.                      The judgment is affirmed; costs to appellees.                    The judgment is affirmed; costs to appellees.                    ____________________________________________                                          22                                      Appendix A                                      __________                            LAWS OF PUERTO RICO ANNOTATED                                TITLE THREE. EXECUTIVE                         CHAPTER 51. PUBLIC SERVICE PERSONNEL               SUBCHAPTER V. PERSONNEL ADMINISTRATION SYSTEM; STRUCTURE            1350. Confidential employees               Confidential employees  are those who intervene  or collabo-          rate substantially in the  formulation of the public policy,  who          advise  directly or  render direct  services to  the head  of the          agency, such as:               (1)  Officers  appointed  by  the  Governor, their  personal          secretaries  and drivers; as well as their executive and adminis-          trative assistants who answer directly to them.               (2)  Heads  of  agencies,  their  personal  secretaries  and          drivers; as well as their executive and administrative assistants          who answer directly to them.               (3) Assistant heads of agencies and their personal secretar-          ies and drivers.               (4) Regional directors of agencies.               (5) Personal  secretaries and drivers  of officials selected          by popular  election,  as well  as  their assistants  who  answer          directly to them.               (6) Members  of boards  or standing committees  appointed by          the Governor and their respective personal secretaries.               (7) Members and personnel of boards or commissions appointed          by the Governor having a specific period of effectiveness.               (8) Personnel of  the offices of the  Puerto Rico Ex-Govern-          ors.               Confidential  employees  shall  be  of  free  selection  and          removal.  Likewise  confidential  shall  be those  employees  who          though of free selection  may be removed  only for good cause  by          provision of law or those  whose appointment is for a  term pre--          fixed by law.               Every regular employee in a career position who is appointed          to  a confidential position shall be entitled to be reinstated in          a position equal or similar to the last one he held in the career          service.                                          i
