UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARSHA B. CONNER,
Plaintiff-Appellee,

v.

STEVEN A. MCGRAW, Clerk of the
Circuit Court of Roanoke County,
Virginia,
Defendant-Appellant,               No. 94-1313

and

ELMER C. HODGE, County
Administrator, Roanoke County,
Virginia; THE COUNTY OF ROANOKE,
VIRGINIA,
Defendants.

MARSHA B. CONNER,
Plaintiff-Appellee,

v.

STEVEN A. MCGRAW, Clerk of the
Circuit Court of Roanoke County,
Virginia,
Defendant-Appellant,               No. 94-1513

and

ELMER C. HODGE, County
Administrator, Roanoke County,
Virginia; THE COUNTY OF ROANOKE,
VIRGINIA,
Defendants.
Appeals from the United States District Court
for the Western District of Virginia at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CA-92-559)

Argued: February 1, 1995

Decided: December 30, 1996

Before ERVIN and NIEMEYER, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Reversed and remanded by unpublished opinion. Judge Ervin wrote
the opinion, in which Judge Niemeyer and Senior Judge Young
joined.

_________________________________________________________________

COUNSEL

ARGUED: William Fain Rutherford, Jr., WOODS, ROGERS &
HAZLEGROVE, P.L.C., Roanoke, Virginia, for Appellant. Donald
Wise Huffman, BIRD, KINDER & HUFFMAN, P.C., Roanoke, Vir-
ginia, for Appellee. ON BRIEF: Frank K. Friedman, Philip W. Par-
ker, WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke,
Virginia, for Appellant. L. Brad Bradford, BIRD, KINDER & HUFF-
MAN, P.C., Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

                    2
OPINION

ERVIN, Circuit Judge:

Marsha Conner, former Chief Deputy Clerk of the Circuit Court of
Roanoke County, Virginia, brought this civil rights action under 42
U.S.C. § 1983, alleging that the Roanoke County Clerk, Steven
McGraw, terminated her employment in violation of her First Amend-
ment rights. McGraw moved for summary judgment on the ground of
qualified immunity, but the district court denied this motion and
McGraw did not file an interlocutory appeal. In ruling in favor of
Conner following a bench trial, the district court failed to clarify
which strand of First Amendment jurisprudence--the associational
right to political affiliation or the free speech right to expressive
conduct--served as the basis for its decision. For the reasons that fol-
low, we hold that the district court erred in not granting McGraw
qualified immunity and for that reason we reverse.

I.

Marsha Conner became a member of the Roanoke County Circuit
Court Clerk's Office in February 1986 and served as a deputy clerk
in that office until April 1988. At that time, Elizabeth Stokes, the
County Clerk, elevated her to the position of Chief Deputy Clerk. As
Chief Deputy, Conner served as the office's second-in-command,
reporting directly to the County Clerk. In many respects, Conner
functioned as the day-to-day manager of the clerk's office--drafting
and maintaining plans for all office operations, preparing and moni-
toring the office budget, and supervising and evaluating the personnel
in the Clerk's office. Conner oversaw management functions such as
recordkeeping, discipline, pay and benefits, employee relations, and
job classification. In addition to these responsibilities, Conner served
at least in part as the office's bookkeeper.

Towards the end of Elizabeth Stokes' tenure as County Clerk, the
office became embroiled in a scandal involving alleged financial
improprieties. An audit report criticized Stokes for practices involving
the collection of marriage fees, the writing of daily batch receipts for
minor copying charges, travel voucher irregularities, and the provid-
ing of real estate brokers with after-hour access to real estate records.

                    3
Although the auditor's investigation would become a serious issue in
the next election for county clerk, Conner was never implicated in any
wrongdoing.

In the campaign leading up to the November 1991 election, Conner
was an active supporter of Stokes' re-election bid. 1 Conner passed out
pro-Stokes literature, displayed bumper stickers on her car, placed
pro-Stokes signs at a voting precinct, and wrote a letter to the editor
of the local newspaper, the Roanoke Times & World News, criticizing
Steven McGraw, the Democratic candidate for County Clerk, and
defending Stokes. Nine of the office's eleven deputy clerks signed
Conner's letter, yet Conner's name was the only one to appear in the
newspaper. Conner's letter criticized McGraw for his attacks on the
Clerk's Office and challenged Roanoke voters to"make the decision
themselves rather than have Mr. McGraw make it for them."

The controversy in this case arises from McGraw's decision--soon
after he won election in November 1991--not to reappoint Conner to
her position as Chief Deputy Clerk.2 Determining the basis for Con-
ner's termination is complicated by McGraw's ever-changing expla-
nations for his decision. After McGraw's victory, he and Conner
attended three meetings together. The first was a group meeting with
all members of the clerk's office. Nothing was said with respect to
Conner's future as Chief Deputy Clerk. During the second meeting--
attended by McGraw, Conner, and Keith Cook, the head of Roanoke
County's Human Resources division--McGraw asked Conner what
she knew about Stokes' questionable practices. Conner informed
McGraw that she had little knowledge of the problems that had
existed under Stokes' leadership. During the third meeting, which
took place on December 4, 1991, McGraw informed Conner for the
first time that she would not be reappointed. While Conner claims that
McGraw told her that "it is just one of those political things and had
_________________________________________________________________
1 In this partisan election, Stokes ran as a Republican and McGraw ran
as a Democrat. The Clerk of Circuit Court of Roanoke County, Virginia,
is elected by popular vote.
2 Prior to the election, the Clerk's office consisted of the Clerk, Mrs.
Stokes, the Chief Deputy Clerk, Mrs. Conner, and eleven deputy clerks.
McGraw retained all of the office's personnel except Mrs. Conner and
one deputy clerk.

                    4
[sic] nothing to do with your ability," McGraw contends that the rea-
son he gave was "incompatibility of management styles." Kathryn
Claytor, the County's Assistant Director of Human Resources, con-
firmed McGraw's version of what transpired at the meeting, which
she also attended.

McGraw's explanation for his action continued to change. Between
December 4, 1991, and the beginning of the new year, McGraw
apparently decided that it would be in his best interests to rephrase his
explanation for terminating Conner. In a letter to Conner dated Janu-
ary 1, 1992, McGraw stated that the Chief Deputy Clerk occupied a
policy-making position, "and it is within my statutory authority to hire
and terminate individuals in that position at my discretion." The dis-
trict court was particularly suspicious of this letter, believing
McGraw's reference to the chief deputy position as a"policymaking"
role--the precise description often used to justify public employee
terminations under Supreme Court precedent--to be more than a
mere coincidence.

II.

Six months after receiving her termination letter, Conner filed this
§ 1983 action against McGraw, the County Administrator, Elmer
Hodge, and Roanoke County. In her complaint, she alleged that her
political affiliation "was the only grounds for the failure of the defen-
dant, McGraw, to reappoint the plaintiff to her position as Chief Dep-
uty Clerk."3 Joint Appendix, at 12.

McGraw filed a motion for summary judgment, asserting a quali-
fied privilege based on the fact that the law in the area of discharge
for political affiliation is far from clearly established. McGraw argued
that while some positions are protected from political patronage ter-
_________________________________________________________________
3 In light of the seeming clarity of Conner's complaint, we are per-
plexed by the district court's remark that "Conner does not contend that
McGraw terminated her employment because of her political party affili-
ation." Joint Appendix, at 328. Because our constitutional inquiry turns
on the factual question of why McGraw chose not to reappoint Conner,
the district court's misreading of the plaintiff's complaint raises doubts
about the court's approach to resolving this factual dispute.

                     5
minations, it is also clear that analogous positions are not. In the
absence of a clearly established constitutional right, he maintained
that Conner's complaint against him should have been dismissed on
the grounds of qualified immunity under Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).

On defense motions for summary judgment, the district court dis-
missed all claims as to Roanoke County and Hodge, but held that
McGraw was not entitled to qualified immunity. In denying the
immunity defense, the district court conceded that there is no case in
the Fourth Circuit holding that a chief deputy clerk cannot be termi-
nated for political reasons. Recognizing that "party affiliation must be
an appropriate requirement for the effective performance of the public
office" in order to permit McGraw to terminate Conner, the court nev-
ertheless concluded that, "[t]he law was clear that the Municipal
Defendants could not discharge Conner solely based upon her politi-
cal affiliations" because requiring political patronage from deputy
clerks was inappropriate. The court relied on two decisions in the
Third and Eighth Circuits. See Zold v. Township of Mantua, 935 F.2d
633 (3d Cir. 1991) (holding that defendants failed to demonstrate that
deputy municipal clerk was appropriately a political patronage job);
Barnes v. Bosley, 745 F.2d 501 (8th Cir. 1984) (holding that unit
manager in St. Louis circuit court did not require political affiliation
for the position), cert. denied, 471 U.S. 1017 (1985). While the dis-
trict court also referred to our decision in Stott v. Haworth, 916 F.2d
134 (4th Cir. 1990), it failed to note that the Fourth Circuit did not
find the law to be clear and well-established, but rather found it to be
inconsistent and unpredictable. See id. at 144.

At trial, McGraw returned to the issue of incompatible manage-
ment styles and claimed that many members of the Clerk's Office had
complained about Conner's leadership style. On cross-examination,
however, McGraw was unable to provide the court with specific
names or incidents. The court found that McGraw's criticisms lacked
merit, particularly in light of the testimony of five witnesses who
spoke very highly of their professional relationships with Conner,
including Elizabeth Stokes, Conner's supervisor for five years.
McGraw's vacillation as to his reason for not reappointing Conner
contributed to the district court's overall skepticism of McGraw's ver-
sion of why Conner was not reappointed. The court stated that

                    6
McGraw's testimony appeared "incomplete, inconsistent and had the
ring of pretext." Id. at 7. On the other hand, the court found Conner's
"demeanor on the stand during direct and cross examination [to be]
direct and forthright." Id.

The district court was most skeptical of McGraw's attempt to char-
acterize his termination decision as unrelated to Conner's active sup-
port of Stokes during the campaign. The court specifically found
"Conner's version of the [December 4, 1991] meeting more credible."
Joint Appendix, at 325. At trial, Conner never wavered from her claim
that McGraw had told her that her termination was purely political in
nature.

The district court held a bench trial on the merits and found:

          From this evidence I have no trouble concluding that the
          defendant, Steven McGraw, illegally terminated the plain-
          tiff, Marsha Conner, in violation of her First Amendment
          rights. I find that McGraw terminated Conner because she
          supported his political opponent and because he wished to
          reward a long-time political supporter with a job as Chief
          Deputy Clerk.

The district court found damages in the amount of $54,990, and
entered judgment in favor of Conner against McGraw personally,
without clearly indicating which aspect of Conner's First Amendment
rights had been jeopardized by McGraw's action. McGraw appealed.

III.

Before it would be appropriate for us to address Conner's claims
on the merits, we must remember that the Supreme Court has
instructed that we address the threshold matter of qualified immunity
first. See Siegert v. Gilley, 500 U.S. 226, 232 (1991) (holding that dis-
trict court should have dismissed suit because plaintiff had not over-
come defendant's qualified immunity claim); Torcasio v. Murray, 57
F.3d 1340, 1352 (4th Cir. 1995) (concluding that courts are to con-
sider as a threshold matter whether officials are entitled to qualified
immunity and, only if not entitled, move on to other issues); DiMeglio

                    7
v. Haines, 45 F.3d 790, 797 (4th Cir. 1995) (concluding that court
reviewing qualified immunity defense should assess, before anything
else, whether alleged conduct violated law clearly established at time
conduct occurred). Our review of the district court's rejection of qual-
ified immunity in light of Fourth Circuit precedent at the time
McGraw fired Conner, discloses that it should have found that our
precedent would have given McGraw qualified immunity.

Under the doctrine of qualified immunity, government officials are
immune from liability "insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reason-
able person would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Because the right asserted by Conner was not clearly
established when McGraw dismissed her, McGraw is immune from
suit.

In this case, McGraw felt that his chief deputy, the second-in-
command, could be fired after the election based on political patron-
age. The district court made the factual finding--which we cannot
question--that McGraw terminated Conner "because she supported
his political opponent and because he wished to reward a long-time
political supporter with a job as Chief Deputy Clerk."

Even though Conner supported McGraw's political opponent in
part by publishing a letter to the editor, the totality of the evidence
and the finding of the district court was that Conner was discharged
because of her political association. That is the only reason alleged in
the complaint; it is the only reason addressed by the district court
when it ruled on the immunity question; and it is the factual finding
made by the district court that now binds us, unless we are willing to
conclude that the finding was clearly erroneous. We do not so con-
clude.

When an employee is discharged because of political affiliation,
allegedly in violation of the First Amendment, the burden is on the
discharging authority to demonstrate that party affiliation is an appro-
priate requirement for the effective performance of the public office
involved. See Elrod v. Burns, 427 U.S. 347 (1976) (holding that prac-
tice of political patronage dismissals and replacements impinges on

                    8
employees' First Amendment freedoms of political association);
Branti v. Finkel, 445 U.S. 507 (1980) (similar holding).

While no one disagrees with a general statement of the principles
of the Elrod/Branti line of cases, the jurisprudence of what offices are
legally subject to political patronage terminations has been a burning
and unresolved issue that has not been resolved even yet in this cir-
cuit, or indeed elsewhere. Less than a year before McGraw terminated
Conner, we conducted a survey in the Fourth Circuit as well as in
other jurisdictions to determine which positions could require political
patronage. See Stott v. Haworth, 916 F.2d 134, 143-144 (4th Cir.
1990) (stating that "[w]e cite these cases, a representative, not com-
plete, list, only for illustrative purposes, and that illustration shows
that these cases must necessarily be considered individually"). We
pointed out that the following employees were subject to removal
based on their political affiliation: confidential secretary; deputy ser-
vice officer at a county veterans' service; coordinator, pretrial release
program; regional director of the Department of Housing and Devel-
opment; assistant city attorney; assistant county attorney; city police
chief; assistant director of public information for a county; first dep-
uty commissioner of a water department; deputy sheriff, superinten-
dent of employment for a park district; assistant district attorney;
assistant state's attorney; fee agent; city solicitor and assistant city
solicitor; senior citizens coordinator; deputy parks commissioner;
state director of farm home administration. We noted, however, that
similar positions were held to be not subject to political patronage ter-
minations, including: school district director; school superintendent;
electoral board registrar; city court bailiff; road graders; bookkeeper;
deputy court clerk; deputy sheriff; administrative director of the
Department of Transportation; supervisor of the county branch of an
auditor's office; city clerk; attorney, department of social services.

Unable to draw any conclusions from the array of individualized
decisions, we stated in Stott, "It is also clear that application of
Elrod/Branti in the various jurisdictions has produced seemingly
inconsistent and unpredictable results." Id. at 144. Thus, less than a
year before McGraw made his decision with respect to Conner, the
last word in the Fourth Circuit was that the law was not well-
established, but rather "inconsistent" and"unpredictable."

                    9
At the time that McGraw terminated Conner, he stated that he did
it for political reasons, believing that the Chief Deputy position
required political patronage. Conner accepted those reasons, as evi-
denced by her contemporaneous memorandum written in December
1991, in which she stated that her dismissal was a"political decision."
In light of the existing precedent and the fact that Conner was the
number two person under McGraw, who was an elected official, we
conclude that McGraw held the objectively reasonable belief that
Conner's position was subject to political patronage dismissal since
she too would be called on to give effect to the policies of his office.
While the number two position in the clerk's office is also substan-
tially an administrative position, it nevertheless remains the backup
policy position for the clerk.

Without the need, however, of resolving the question of whether
the Chief Deputy Clerk in Roanoke County is in fact a policy-making
person, it cannot be reasonably disputed that the law on this subject
was not well established. As the Supreme Court has stated, the unlaw-
fulness must be apparent:

          [O]ur cases establish that the right the official is alleged to
          have violated must have been "clearly established" in a more
          particularized, and hence more relevant, sense: The contours
          of the right must be sufficiently clear that a reasonable offi-
          cial would understand that what he is doing violates that
          right.

Anderson v. Creighton, 483 U.S. 635, 640 (1987). "Officials are not
liable for bad guesses in gray areas; they are liable for transgressing
bright lines." Maciariello v. Summer, 973 F.2d 295, 298 (4th Cir.
1992), cert. denied, 113 S. Ct. 1048 (1993).

Conner focuses on the letter that she wrote to the editor of the
newspaper during the campaign in which she criticized McGraw's
administration. Even if we analyze this case as if the dismissal was
based on the writing of the letter rather than Conner's political affilia-
tion, the result is the same. The use of the balancing test for scrutiniz-
ing terminations based on constitutionally protected speech would not
alter our conclusion. See Pickering v. Board of Educ., 391 U.S. 563
(1968); Connick v. Myers, 461 U.S. 138 (1983). Under such a balanc-

                     10
ing test, we would still be required to determine whether under the
Pickering/Connick line of cases the law was sufficiently well estab-
lished that a reasonable person in McGraw's position would have
known that he was violating the law in terminating Conner. We hold
that just as in the area of the Elrod/Branti line of cases, the Pickering/
Connick line of cases was, and today is, not much clearer when
applied to particularities. Indeed, the application of the constitutional
principle is a multi-stepped balancing test that does not dictate an out-
come in a particular case.

Recently we observed that the Pickering/Connick balancing test is
particularly difficult and suggested that the right to terminate certain
employees for their political speech is not "clearly established." See
Orga v. Williams, No. 94-1876, slip op. at 8-10 (4th Cir. Oct. 6, 1995)
(unpublished). In Orga, we recognized the qualified privilege for a
public official discharging an employee in circumstances similar to
those before us. Faced with the question of whether a sheriff could
fire two deputy sheriffs because they spoke in favor of the opposing
candidate and had letters written on behalf of that candidate, we con-
cluded that the sheriff was immune when he was sued for terminating
the deputy sheriffs. We referred to Bartlett v. Fisher, 972 F.2d 911,
916-17 (8th Cir. 1992), which concluded that "qualified immunity
should rarely be denied under Connick." See also Joyner v. Lancaster,
815 F.2d 20 (4th Cir.), cert. denied, 484 U.S. 830 (1987) (upholding
a sheriff's dismissal of a senior captain of North Carolina Sheriff's
Department because he actively campaigned for sheriff's opponent);
cf. Olivio v. Mapp, 57 F.3d 1067 (4th Cir. 1995) (unpublished) (find-
ing qualified immunity for sheriff who dismissed deputy sheriff for
failing to support sheriff's campaign). It would be an ill-defined juris-
prudence today if we were to find that our cases afforded immunity
for the dismissal of a deputy sheriff for supporting a political oppo-
nent but did not do so in the case of a chief deputy clerk.

The area of discharge for the exercise of First Amendment rights,
whether of free speech or political association, is one of the most
complex that we have to apply. When the courts have applied it
inconsistently to justify dismissals of some employees and not others,
it is simply expecting far too much of an objectively reasonable
elected chief clerk to conclude that he is not entitled to fire his chief

                     11
deputy clerk when he takes office in order to have his own adminis-
tration carry out the policies of his campaign.

IV.

For these reasons, we hold that McGraw is entitled to qualified
immunity and we reverse the judgment of the district court and
remand the case to that court with directions to dismiss it.

REVERSED AND REMANDED

                    12
