                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-23-1998

Wetzel v. Tucker
Precedential or Non-Precedential:

Docket 97-7207




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"Wetzel v. Tucker" (1998). 1998 Decisions. Paper 57.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/57


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 23, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-7207

LEWIS W. WETZEL,
Appellant

v.

ROSE TUCKER, Individually and in her capacity as a
Luzerne Co. Commissioner; FRANK P. CROSSIN,
Individually and in his capacity as Luzerne Co.
Commissioner; PETER S. BUTERA, Individually and in his
capacity as a Director of the Northeastern PA Hospital
and Education Authority; JEANNETTE DOMBROSKI,
Individually and in her capacity as a Director of the
Northeastern Pennsylvania Hospital and Education
Authority; YVONNE BOZINSKI, Individually and in her
capacity as a Director of the Northeastern PA Hospital
and Education Authority; NORTHEASTERN PA HOSPITAL
AND EDUCATION AUTHORITY
Appellees

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 94-cv-00660)

Argued: November 6, 1997

Before: BECKER,* ROTH, Circuit Judges, and
DIAMOND, District Judge.**
_________________________________________________________________

* Honorable Edward R. Becker, United States Circuit Judge for the Third
Circuit, assumed Chief Judge status on February 1, 1998.

** Honorable Gustave Diamond, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
(Filed March 23, 1998)

       DONALD H. BROBST, ESQUIRE
       (ARGUED)
       Rosenn, Jenkins and Greenwald,
       L.L.P.
       15 South Franklin Street
       Wilkes-Barre, PA 18711

       Counsel for Appellant

       JOSEPH J. HESTON, ESQUIRE
       (ARGUED)
       Dougherty, Leventhal & Price, L.L.P.
       459 Wyoming Avenue
       Kingston, PA 18704

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

Lewis Wetzel brought suit to challenge his discharge as
Solicitor for the defendant Northeast Pennsylvania Hospital
and Education Association. The district court granted
summary judgment for defendants on the ground that
Wetzel was a high level public employee, who was
sufficiently involved in policy making to make political
affiliation a legitimate consideration for his continued
employment. Wetzel's appeal presents the recurring
question of the nature and extent of the exception to the
general principle, announced in Elrod v. Burns, 427 U.S.
347 (1976), and its progeny, that a public employee who is
discharged because of his political affiliation has been
deprived of First Amendment rights. We will affirm.

I.

The Northeastern Pennsylvania Hospital and Education
Authority was created by Ordinance of the Luzerne County
Commissioners to provide tax exempt status to bonds

                               2
issued under the provisions of the Municipal Authorities
Act of 1945, 53 Pa. Cons. Stat. SS 301-22 (West 1997), at
the request of health care providers and educational
institutions throughout northeastern Pennsylvania.
Pursuant to its charter, Luzerne County's three
Commissioners appoint the Authority's Board of Directors.
The Board consists of five members, who serve staggered
five-year terms that expire in consecutive years. Prior to
December 31, 1993, the Authority's Board consisted of Dr.
Charles Carpenter, Chair; Peter Mailloux, Vice Chair;
George Ruckno, Jr., Assistant Secretary/Treasurer;
Jeanette Dombroski, and Yvonne Bozinski. Carpenter,
Mailloux, and Ruckno were Republicans, and Dombroski
and Bozinski were Democrats.

On March 17, 1994, a newly-elected Democratic majority
of Commissioners appointed Democrat Peter Butera to
replace Ruckno, whose term of office had expired on
December 31, 1993. On March 31, 1994, the Board held a
reorganization meeting at which the Directors elected
Democrat Bozinski to serve as the Board Chair, Democrat
Butera as Vice-Chair, and Democrat Dombroski as
Treasurer. The Directors also voted to remove appellant
Wetzel, a Republican, from his position as Authority
Solicitor and replace him with attorney John P. Moses, a
Democrat. Wetzel was, and had been, an at-will employee of
the Authority who had served as its Solicitor for the
previous ten years.

Wetzel thereupon initiated a civil action under 42 U.S.C.
S 1983 seeking both compensatory and punitive damages
arising from his discharge as Solicitor. He sued Rose
Tucker and Frank Crossin, the two Democratic Luzerne
County Commissioners who were serving at the time of his
discharge; Bozinski, Butera, and Dombroski, the three
Democratic Authority Directors who were serving at the
time; and the Authority itself. Wetzel alleged that, because
his discharge was based solely on his affiliation with the
Republican Party, the defendants violated his First and
Fourteenth Amendment rights to political association and
due process.

After the close of discovery, defendants moved for
summary judgment, contending that, as an at-will

                                3
employee, Wetzel possessed no property interest in his
employment subject to protection under the Fourteenth
Amendment. In the alternative, they argued that political
party affiliation is an appropriate requirement for the
effective performance of the duties of Authority Solicitor.
Wetzel cross-moved for partial summary judgment on the
issue of liability, asserting that the record established that
he was terminated for political reasons in contravention of
his First Amendment rights of association. The district
court granted defendants' Motion for Summary Judgment
and denied Wetzel's Cross-Motion for Partial Summary
Judgment, concluding that Wetzel's discharge was
permissible because political affiliation is an appropriate
criterion for the effective performance of the duties of the
Authority Solicitor.1 This timely appeal followed. Our
familiar standard of review is set forth in the margin.2

II.

As in any case involving the accusation of a politically-
motivated discharge of a public employee, we turn first to
the Supreme Court's decisions in Elrod v. Burns, 427 U.S.
_________________________________________________________________

1. The District Court properly rejected defendants' contention that
Wetzel's at-will employment status had relevance to his First Amendment
claim. See Wetzel v. Tucker, No. 3:94-CV-660, mem. op. at 6 n.3 (M.D.
Pa. March 24, 1997). The Court concluded that, while Wetzel's lack of
entitlement to his position as Solicitor might bar a substantive due
process claim, it was not relevant to an action grounded in the free
speech and association principles of the First Amendment. Id. (citing
Rutan v. Republican Party of Illinois, 497 U.S. 62, 72 (1990)).

2. We review a summary judgment de novo. See Sempier v. Johnson and
Higgins, 45 F.3d 724, 727 (3d Cir. 1995). Summary judgment is
appropriate only when the admissible evidence fails to demonstrate a
genuine issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed R. Civ. P. 56(c). When, as here, the
nonmoving party bears the burden of persuasion at trial, the moving
party may meet its burden on summary judgment by showing that the
nonmoving party's evidence is insufficient to carry that burden. The
nonmoving party creates a genuine issue of material fact if he provides
sufficient evidence to allow a reasonable jury to find for him at trial.
We
give the nonmoving party the benefit of all reasonable inferences. Bray
v. Marriott Hotels, 110 F.3d 986, 989 (3d Cir. 1997).

                               4
347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980). In
Elrod, the Court held that discharging certain public
employees solely on the basis of their political affiliation
infringes upon their First Amendment rights to belief and
free association. See Elrod, 427 U.S. at 355-57. The Court,
however, specifically exempted from this general prohibition
the politically-motivated discharge of persons who hold
confidential or policy making positions. Id. at 367-68. In
articulating this exception, the Court noted that there is
"[n]o clear line . . . between policy making and
nonpolicymaking positions," but offered instruction by
suggesting that "consideration should . . . be given to
whether the employee acts as an advisor or formulates
plans for the implementation of broad policy goals." Id. at
368.

In Branti, the Court addressed the difficulty in the wake
of Elrod of determining whether, in a given situation,
political affiliation is a legitimate factor for a public hiring
authority to consider. Branti, 445 U.S. at 518. Refining its
prior analysis, the Court observed that "the ultimate
inquiry is not whether the label of `policymaker' or
`confidential' fits a particular position; rather, the question
is whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved." Id. See also Ness
v. Marshall, 660 F.2d 517, 521 (3d Cir. 1981) (noting that
Branti calls for a "functional analysis" and concluding that
"should a difference in party affiliation be highly likely to
cause an official to be ineffective in carrying out the duties
and responsibilities of the office, dismissals for that reason
would not offend the First Amendment").

The character of this inquiry is inherently fact-specific in
that it requires a court to examine the nature of the
responsibilities of the particular job at issue. See Zold v.
Township of Mantua, 935 F.2d 633, 635 (3d Cir. 1991).
Importantly, this inquiry is focused on "the function of the
public office in question and not the actual past duties of
the particular employee involved." Brown v. Trench, 787
F.2d 167, 168 (3d Cir. 1986); see also Waskovich v.
Morgano, 2 F.3d 1292, 1297 (3d Cir. 1993); Burns v. County
of Cambria, Pa., 971 F.2d 1015, 1022 (3d Cir. 1993); cf.

                               5
Furlong v. Gudknecht, 808 F.2d 233, 236 (3d Cir. 1986).
Other circuits have used a similar analysis, as we
document in the margin.3 We have held, however, that
evidence of past job duties may in some cases be
informative. See Peters v. Delaware River Port Auth., 16
F.3d 1346, 1353 (3d Cir. 1994); Waskovich, 2 F.3d at 1300.

III.

Wetzel contends that political affiliation is not an
appropriate criterion for the position of Authority Solicitor.
He characterizes the Authority simply as a "conduit"
through which tax-exempt bonds are funneled to health
care and educational institutions. Citing the facts that the
Authority's sole purpose is to serve as a financing
mechanism to issue these bonds, that it meets infrequently
(only when an institution requests a bond issue), and that
it has never turned down a bond request, Wetzel submits
that the Authority is a reactive, non-policy making body.

In contrast, the defendants maintain that the Authority is
a policy making body whose Solicitor may be terminated
appropriately based on his political affiliation. In their
submission, the Authority's enabling legislation, as well as
the record testimony, compel the conclusion that the
_________________________________________________________________

3. See Williams v. City of River Rouge, 909 F.2d 151, 154 (6th Cir. 1990)
("When examining a public office for first amendment protection against
politically-motivated dismissal, the relevant focus of analysis is the
inherent duties of the position in question, not the work actually
performed by the person who happens to occupy the office."); Tomczak
v. City of Chicago, 765 F.2d 633, 641 (7th Cir. 1985) ("[I]f an
officeholder
performs fewer or less important functions than usually attend his
position, he may still be exempt from the prohibition against political
terminations if his position inherently encompasses tasks that render
his political affiliation an appropriate prerequisite for effective
performance."). One Court of Appeals adopting this approach has gone
so far as to hold that it may preclude altogether consideration of actual
past job duties. See O'Connor v. Steeves, 994 F.2d 905, 911 (1st Cir.
1993) ("[T]he actual past duties of the discharged employee are irrelevant
if the position inherently encompasses more expansive powers and more
important functions that would tend to make political affiliation an
appropriate requirement for effective performance") (internal quotations
omitted).

                                6
Authority's Solicitor acts as an advisor with regard to policy
matters, thereby placing political affiliation legitimately
among the criteria for the position.

Based on these competing contentions regarding both the
general role of the Authority and the particular
responsibilities of its Solicitor, our inquiry is by necessity
two-fold. We must first address whether the Authority is a
policy making body, because if it is not, it would be
impossible for the Authority to demonstrate that the party
affiliation of the Solicitor is an appropriate requirement for
his effective performance. Answering this in the affirmative,
we then turn to the central issue of our inquiry: whether
the Authority has shown that there is no genuine issue of
material fact as to whether political party affiliation is an
appropriate criterion for the effective job performance of the
Authority's Solicitor. Because we believe that the Authority
has met this burden as a matter of law, we conclude that
the position of Solicitor is one that falls within the
exception laid out in Elrod and its progeny.

A.

To determine whether the Authority is a policy-making
body, we turn first to the Municipal Authorities Act of 1945,
53 Pa. Cons. Stat. SS 301-322, which established the
Authority. Contrary to plaintiff's claim that the Authority is
a mere "conduit" through which bond fundsflow, the Act
confers upon the Authority a broad range of powers, many
of which implicate substantial policy matters. For example,
S 306B(n) confers upon the Authority the power"[t]o do all
acts and things necessary or convenient for the promotion
of its business and the general welfare of the Authority, to
carry out the powers granted to it by this act or any other
acts." (emphasis supplied) This is an expansive grant. The
section not only charges the Authority with ensuring its
continued operation, but it also grants the Authority the
discretionary power to decide how to conduct its operations.
If the Pennsylvania legislature meant for the Authority to
serve simply as a conduit through which tax exempt
financing is obtained by health care providers and
educational institutions, it would not have included

                               7
language that allowed for such clear policy making
discretion.

The district court analyzed the matter as follows:

       The Authority's decisions regarding the issuance of
       bonds for such projects as long-term nursing care
       centers and personal care facilities necessarily involve
       public policy implications. Many times, the feasibility
       and continued existence of such facilities are directly
       dependent on the Authority's approval of tax-exempt
       bonding. Public policy considerations, such as the
       present need for these types of facilities in certain
       geographic areas, are almost certain to factor into the
       decisions regarding the issuance of bonds to these
       entities.

Wetzel v. Tucker, mem. op. at 12. We agree. Noting that
these are but a few of the potential circumstances under
which the Authority may assert its policy making power, we
reject Wetzel's claim that the Authority is a reactive, non-
policy making body.

B.

Turning to the question whether Authority Solicitor is a
position for which political affiliation is an appropriate
criterion, we must assess the level of input that the office
of Solicitor has on matters of public policy. We have twice
addressed this issue in cases involving the discharge of
government lawyers. In Ness v. Marshall, supra, we
affirmed the grant of summary judgment in favor of a city
whose incoming mayor, upon taking office, had discharged
the previous administration's city solicitor and assistant
city solicitor. In rejecting the claim that political affiliation
was not an appropriate criterion for those positions, we
noted that the attorneys in question performed various
functions that were "intimately related to city policy." Id. at
522. Specifically, we noted that both the city solicitor and
the assistant solicitor rendered legal advice to the
administration, drafted ordinances, and negotiated
contracts for the city. See id. As such, we concluded that,
in filling these positions, "the mayor ha[d] the right to
receive the complete cooperation and loyalty of a trusted

                               8
advisor, and should not [have been] expected to settle for
less." Id.

Our conclusion was the same for the position of assistant
district attorney. In Mummau v. Ranck, 687 F.2d 9 (3d Cir.
1982), we affirmed the grant of summary judgment in favor
of a county district attorney, determining that, as a matter
of law, political affiliation is an appropriate criterion for the
position of assistant district attorney. The district court had
observed that the position entailed decisionmaking as to
the allocation of the county's scarce resources and the
prosecution of particular individuals and classes of crime.
See Mummau v. Ranck, 531 F. Supp. 402, 405 (E.D. Pa.
1982). We agreed, rejecting the contention that an attorney
with this type of input into governmental policy making
operates in a purely technical or ministerial manner. See
Mummau, 687 F.2d at 10.

Notably, in both Ness and Mummau, we focused on the
authorized functions and duties of the office in question
rather then on the responsibilities of the particular
attorneys at issue. See Ness, 660 F.2d at 521 ("That a city
solicitor in a similar position could conceivably operate in
such a legal/technical manner is a possibility that need not
concern us here."); Mummau, 687 F.2d at 10 ("That an
assistant district attorney `could conceivably operate in
such a legal/technical manner,' or that appellant in fact so
limited himself to the role described is irrelevant.") (quoting
Ness).

We see no material difference between the roles played by
the attorneys in Ness and Mummau, and that played by
Wetzel. This is especially so in light of the broad
discretionary power conferred by S 306B(n) and the role
that the advice of counsel would have in shaping policy
decisions. Assume, for example, that the Board was
pondering whether to pursue an affirmative action policy
that would seek a minority underwriter for one of its bonds,
but realized that the policy would probably be challenged.
Or assume that a Board considering a bond funding
application from a private drug rehabilitation clinic that
proposed to build a huge facility within the borders of
Luzerne County reasonably feared that the local community
might oppose the project on legal (or other) grounds. The

                                9
advice of counsel as to the legality of these actions, and
whether or not it was worthwhile to defend them in
litigation should that become necessary, would inform
these policy decisions in a very direct way.

Wetzel responds that the Board of Commissioners could
rely on the Solicitor's objective legal advice in these
situations, uninfluenced by his personal beliefs. That
response, however, is simplistic. Tough legal questions are
not answered mechanically, but rather by the exercise of
seasoned judgment. Judgment is informed by experience
and perspective, and any evaluation of the risks involved in
such a decision (including the determination as to whether
it is advisable to pursue litigation) is informed, in turn, by
values. Moreover, as the foregoing discussion suggests,
these issues are not purely legal; clients employ counsel to
assess whether the goals are indeed worth the risks. 4 As
such, to be confident in its Solicitor's advice on matters
"intimately related" to Authority policy, the Board must
have the right to demand that his loyalties lie with it and
its agenda. Ness, 660 F.2d at 522. Given the political
ramifications of any attendant legal advice, confidence
sometimes may come only with the assurance that the
Solicitor shares the same political ideology as the Board.
These situations are exactly the types for which the
Supreme Court created the Elrod/Branti exception.5
_________________________________________________________________

4. Cf. Pennsylvania Rules of Professional Conduct Rule 2.1 cmt. (Supp.
1997) (a lawyer should advise a client on the social and political
ramifications of a particular action).

5. Wetzel also argues that Commissioner Frank Crossin's testimony that,
in his opinion, political affiliation was not a criterion for the position
of
Solicitor precludes summary judgment. We disagree. Where, as here, the
objective evidence leads us to conclude that, as a matter of law, a person
occupied a policy-making position, the lay opinion of someone in
Crossin's position is rendered irrelevant. Indeed, we believe that were
such opinions sufficient to preclude summary judgment, it would raise
the specter, admittedly not present here, of permitting a plaintiff to
avoid
summary judgment simply by finding a Commissioner, who may have
any number of motives, to characterize the job one way or another,
perhaps in view of changed political alliances.

                                10
C.

It is clear from this record that the Authority's Solicitor
"has meaningful input into decision making concerning a
major [government] program." Brown, 787 F.2d at 169-70.
As the analysis in Part III.B makes clear, the District Court
was correct when it observed that "Wetzel's argument that
the role of Authority Solicitor is limited to rendering
technical legal advice, far removed from political concerns,
plainly ignores the extent to which the Authority's attorney
may be involved in matters of substantial importance to the
community." Wetzel v. Tucker, mem. op. at 14. We conclude
that there is no genuine issue of material fact as to whether
political party affiliation is an appropriate criterion for the
effective job performance of the Authority's Solicitor.
Rather, as a matter of law, political affiliation is an
appropriate criterion for the position. The judgment of the
District Court will therefore be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11
