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


3-23-1998

Boyle v. County of Allegheny
Precedential or Non-Precedential:

Docket 97-3222




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Filed March 23, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3222

PATRICK J. BOYLE,

       Appellant,

v.

COUNTY OF ALLEGHENY PENNSYLVANIA; LARRY DUNN,
COMMISSIONER, in his individual capacity;
BOB CRANMER, COMMISSIONER, In his
individual capacity,

       Appellees

On Appeal from the United States District Court
for the Western District of Pennsylvania
(Dist. Ct. Civil Action No. 96-141)

Argued November 17, 1997

BEFORE: SCIRICA and LEWIS, CIRCUIT JUDGES, and
ACKERMAN, DISTRICT JUDGE*

(Filed: March 23, 1998)

       Samuel J. Cordes, Esq. (Argued)
       OGG, JONES, CORDES & IGNELZI,
       L.L.P.
       245 Fort Pitt Boulevard
       Pittsburgh, PA 15222

        Attorney for Appellant
_________________________________________________________________

* Honorable Harold A. Ackerman, Senior Judge of the United States
District Court for the District of New Jersey, sitting by designation.




       Kurt A. Miller, Esq. (Argued)
       Terrence M. Lewis, Esq.
       THORP, REED & ARMSTRONG
       One Riverfront Center
       Pittsburgh, PA 15222

        Attorneys for Appellees
OPINION OF THE COURT

HAROLD A. ACKERMAN, Senior District Judge:

This appeal arises out the employment termination of
appellant Patrick J. Boyle ("Boyle") by the County of
Allegheny, Pennsylvania from his position as Deputy
Director of Marketing and Communications in the county's
Department of Aviation. Boyle, a Democrat, alleged in his
complaint that he was terminated based on his political
affiliation in violation of the First and Fourteenth
Amendments to the United States Constitution and 42
U.S.C. S 1983. Boyle sought reinstatement to the position of
Deputy Director, various other equitable relief and
compensatory and punitive damages for pain, suffering,
emotional distress and humiliation resulting from his
allegedly unlawful termination.

While denying that he was terminated for his political
affiliation, defendants/appellees moved for summary
judgment in the district court contending that even if he
were, such a termination was proper under Elrod v. Burns,
427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1979),
and their progeny. Boyle opposed the motion, relying in
large measure on the deposition testimonies of two of the
three members of the Board of Commissioners of Allegheny
County. These Commissioners testified that political
affiliation was not an appropriate requirement for the
position of Deputy Director of Marketing and
Communications.

The district court granted defendants' motion for
summary judgment, concluding that the deposition
testimonies of the two Commissioners were not significantly
probative on the question of whether political affiliation was

                                2



an appropriate requirement for the position held by Boyle
under Supreme Court and Third Circuit case law. This
Court has jurisdiction pursuant to 28 U.S.C. S 1291.

We reverse.

I. Factual Background

The Board of Commissioners of Allegheny County has
traditionally been a stronghold for the Democratic Party.
For nearly fifty years, until 1995, the three-member Board
was comprised of a Democratic majority. In 1995, however,
two Republican Commissioners, Larry Dunn and Bob
Cranmer,1 were elected, and the Board became a
Republican majority.

Boyle was hired by Allegheny County as Deputy Director
in its Department of Aviation on January 21, 1986. By
letter, dated December 21, 1995, Dunn and Cranmer, as
Commissioners-elect, demanded plaintiff 's resignation
based upon their belief that "those in management and
leadership positions, appointed to our new administration,
share our priorities of government." When the new
Republican-dominated Board took office in January, 1996,
the county terminated the employment of a number of
directors and deputy directors, including Boyle. Boyle
contends in his suit that he was terminated because he
was a registered Democrat and he supported the election
campaigns of Democratic candidates for county
Commissioner.

A. Job Duties and Responsibilities

The Deputy Director position was a third level
management position in the governmental hierarchy in
Allegheny County with respect to the Department of
Aviation. Boyle reported directly to the Director, who in
turn, reported to the Board of Commissioners. The
positions reporting directly to the Deputy Director included
the manager of public relations, senior administrative
officer/capital projects, marketing analyst, information
clerk supervisor and senior secretary.
_________________________________________________________________

1. The lone Democrat remaining on the Board was Michael Dawida.

                                3



At some time during his employment, Boyle drafted a job
description for the position of Deputy Director of Marketing
and Communications.2 Boyle characterized his position as
a management level staff position "designed to carry out
policy decisions by the Director of Aviation and the County
Commissioners . . . [and to] interpret policy requirements,
act and sign documents on behalf of the director, speak to
news media on the record, and initiate or respond to public
affairs activities as required." He was "responsible for
planning, preparing, and executing all communications,
marketing and development programs for the aviation
system, as well as coordinating public affairs and
community relations activities, and the airport public
information program."

The job description listed the Deputy Director's "Major
Duties" as follows:
       (1) Supervise and manage all activities of the
       marketing, community relations, and public
       information functions of the aviation system.

       (2) Develop and prepare written material for public
       dissemination, including news releases, marketing
       reports, newsletters and correspondence.

       (3) Maintain contact with prospective and present
       clients and tenants.

       (4) Develop and coordinate program to deal with
       complaints, passenger relations with airport tenants,
       and other travelers' concerns, especially insofar as
       these activities affect airport operations and
       maintenance.

       (5) Monitor and review any airport problem that may
       be apparent to the public, and advise the appropriate
       section of such problems and any public relations
       ramifications.

       (6) Observe and interpret accidents, emergencies, and
       disaster scenes to determine how best to handle the
       response by news media.
_________________________________________________________________

2. Boyle testified in his deposition that the job description, in general,
accurately described the duties he had as Deputy Director.

                               4



       (7) Coordinate and authorize news coverage of any
       activity in the airport, assist the news media in
       covering events and staff the emergency
       communications center when necessary and provide
       needed logistical support to media.

       (8) Serve as authorized airport spokesman.

       (9) Manage or assist special projects required to
       support airport mission, for instance, dedicating new
       buildings, hosting VIP tours, sponsoring seminars, etc.

       (10) Coordinate airport initiatives and responses in
       rate cases, new service opportunities, development
       projects, etc.

       (11) Oversee information clerks and disbursal of
       information from airport information desks. Regulate
       material given out at information desks.
       (12) Prepare correspondence for director and
       commissioners.

       (13) Advise Director and Commissioners about
       protocol, background and ramifications of events,
       opportunities, proposals, etc.

       (14) Develop and manage programs for airport tours
       and speakers' bureau. Liaison with tenants to include
       wide array of resources for public information.

       (15) Stand in for the Director at Commissioners'
       meetings in his absence.

       (16) Develop in-service training programs and other
       educational programs to educate staff and maintain
       current awareness of significant issues.

       (17) Approve all information from the Department that
       will be disseminated to the public.

       (18) Maintain logs of tours, visitors, speakers,
       meetings, events and airport business, and prepare
       reports reflecting all airport activities on a regular basis
       for Director and Commissioners.

       (19) Liaison with regional groups such as Penns
       Southwest, Chamber of Commerce, R.I.D.C.,
       Convention & Visitors Bureau, and business groups.

                                 5



       (20) Manage contracts   and programs to market and
       promote the airports,   the County or the region,
       including supervision   of consultants for advertising,
       marketing, promotion,   etc.

In addition, Boyle completed a "Job Evaluation
Questionnaire" in May, 1994 which, among other things,
asked him to describe "the specific duties and
responsibilities involved in doing your job." The top five
duties and responsibilities were as follows: (1) Crisis
Management/Problem Solving; (2) Media Relations;
(3) Internal Communications/Information Services;
(4) Policy Implementation/Advice; and (5) Community
Relations/Public Affairs. Boyle also acknowledged that a
crucial part of his job was to "influence, promote and sell"
to community and professional contacts. With regard to the
level of guidance necessary to perform his job, Boyle
checked the category "Broad," which was defined as:
       With managerial responsibility, there is latitude for
       decision making and setting of priorities. Long range
       projects (over one year) are assigned which are
       reviewed through achievement of objectives, according
       to predefined goals.

Boyle also acknowledged that "the effect of typical errors
made in the course of performing the duties of this job"
would have a "[s]ignificant impact affecting major programs,
or corporate objectives, impairing the performance of the
Department of Aviation," and that he had "[c]omplete
freedom for independent judgment and discretion."

A further glimpse into Boyle's duties and responsibilities
is provided by letters sent by him to prospective employers.
For instance, in a letter, dated November 24, 1995, to a
general manager at the Metropolitan Washington Airports
Authority, Boyle stated that he was hired by Allegheny
County to "assist in lobbying, planning, building and
dedicating a new billion dollar airport." This project,
according to Boyle, involved "extensive negotiations with
Federal and State officials, airlines, and the construction
industry, and included considerable interaction with
community groups." In another letter seeking a position at
the Pittsburgh Foundation, dated May 23, 1996, Boyle

                                6



stated that as Deputy Director, he "served as airport
spokesman and managed all public affairs, marketing and
communications."

A letter of recommendation from the chairman of the
county Commission, Tom Foerster, which was drafted by
Boyle himself, stated that Boyle joined the chairman's staff
in 1986 "to line up state funding for Strategy 21 and
persuade USAir to build the Midfield Terminal." He further
stated that Boyle "has been of great value . . . for many
years as a speech writer, corresponding secretary, and
trouble-shooter at the airport."

After his termination, Boyle applied for unemployment
benefits. In a questionnaire completed by Boyle, he stated
that his duties as Deputy Director were to "manage
communications and public relations for [the] airport," that
he had "full discretion and responsibility," and that he "had
full authority to make and implement decisions."

In deposition testimony, Boyle acknowledged that as
Deputy Director, he would report to the Commissioners on
various matters, including the ramifications of various
policies and proposed policies of the Commissioners. Boyle
would also occasionally sit in on county Board meetings on
behalf of the Director. The Board's minutes reveal that
Boyle engaged in discussions with the Commissioners on
various issues affecting the Department of Aviation. The
minutes further reflect that Boyle at times made formal
Requests for Board Action on behalf of the Director.

Significantly, in a letter, dated October 31, 1995, Boyle
stated that "[f]or the past 10 years, I have been deputy
director of Pittsburgh International Airport, and have served
informally as Commissioner Tom Foerster's director of
correspondence."

At the time of his termination, Boyle's annual salary was
$57,035.52.

B. Deposition Testimonies of Commissioners

In his deposition, Cranmer, one of the new Republican
Commissioners on the Board, testified that the position of
Deputy Director did not require a certain political
affiliation:

                                7



       Q. If you were listing requirements for the   deputy
       director of marketing and communications at   the
       aviation department, would affiliation with   one
       political party or another be a requirement   for
       that?

       A. No.

       Q. Would support of one candidate in the last election
       or not --

       A. No.

       Q. You've got to let me finish. Would support of one
       candidate in the last election be an appropriate
       requirement for the position of deputy director of
       marketing and communications?

       A. No.

Mr. Cranmer further testified that there was no "rational
connection between political affiliation" and the position of
Deputy Director, contradicting the defendants' answers to
interrogatories on this issue. Mr. Cranmer stated in no
uncertain terms that he did not "agree with the fact that a
political affiliation has anything to do with this job, has
nothing to do with it."
Michael Dawida, the lone Democratic Commissioner on
the Board, provided similar testimony:

       Q. Commissioner, does the position of deputy director
       of marketing and communications for the
       Department of Aviation require that a person have
       a certain political affiliation?

       A. No. Absolutely not.

       Q. Does the fact that one is either a Democrat or
       Republican affect that person's ability to do the
       job?

       A. Absolutely not.

       Q. Does the fact that the person in that position
       supported one political party of the other political
       party affect his or her ability to do the job?

       A. No.

                                8



       Q. Does the fact that the person in that position
       supported one candidate over another in a prior
       election affect his or her ability to do that job?

       A. No.

Confronted with seemingly strong evidence that Boyle's
position allowed him to have meaningful input into
significant issues affecting the county, on the one hand,
and the deposition testimonies, on the other, the district
court chose the former, and granted the defendants' motion
for summary judgment:

       [T]he undisputed facts demonstrate that plaintiff 's
       duties as Deputy Director were of broad scope, that
       plaintiff acted as an advisor to policymakers and that
       plaintiff participated in discussions and other meetings
       with policymakers and had the authority in some
       instances to act and speak on behalf of policymakers.
       The Court, therefore, finds as a matter of law that the
       duties inherent in the position of Deputy Director are
       such that political ideology is an appropriate
       requirement for the effective performance of that
       position. Accordingly, terminating plaintiff from the
       Deputy Director position because of plaintiff 's political
       affiliation would not offend the First Amendment.
Memorandum Op. at 19.

The significance of the deposition testimonies of Cranmer
and Dawida was disposed of in a footnote as follows, in its
entirety:

       Plaintiff's reliance on the deposition testimony of two
       County Commissioners, that is, Cranmer and Dawida,
       in that those individuals testified that party affiliation
       is not an appropriate requirement for the Deputy
       Director position does not affect the Court's conclusion.
       In light of the undisputed evidence regarding plaintiff's
       authorized and actual duties as Deputy Director, the
       Court finds that the cited deposition testimony does
       not create a genuine issue of material fact. See
       Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.
       1994) ("There must be sufficient evidence for a jury to
       return a verdict in favor of the non-moving party; if the

                               9



       evidence is merely colorable or not significantly
       probative, summary judgment should be granted.").

Id. at 20 n.7.

Had the district court been sitting as the finder of fact,
we would have little trouble in affirming its decision.
However, at the summary judgment stage, the district court
improperly weighed conflicting evidence in granting the
defendants' motion. The deposition testimonies of two of the
three members of the Board of Commissioners, which
constituted the relevant hiring authority in this case,
created a genuine issue of material fact as to whether the
position of Deputy Director of the Department of Aviation
was subject to the Elrod/Branti exception. Accordingly, this
court is constrained to reverse the district court's decision
and remand for further proceedings.

II. Discussion

This Court exercises plenary review of the district court's
granting of summary judgment. See Torre v. Casio, Inc., 42
F.3d 825, 830 (3d Cir. 1994). Accordingly, "the appellate
court is required to apply the same test the district court
should have utilized." Chipollini v. Spencer Gifts, Inc., 814
F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S.
1052 (1987); see also Sempier v. John & Higgins, 45 F.3d
724, 727 (3d Cir.), cert. denied, 515 U.S. 1159 (1995).

Pursuant to Federal Rule of Civil Procedure 56(c), a
motion for summary judgment will be granted
       if the pleadings, depositions, answers to
       interrogatories, and admissions on file, together with
       the affidavits, if any, show that there is no genuine
       issue of material fact and that the moving party is
       entitled to a judgment as a matter of law.

See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989);
Chipollini, 814 F.2d at 896. In other words, "summary
judgment may be granted if the movant shows that there
exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party." Miller v.
Indiana Hosp., 843 F.2d 139, 143 (3d Cir.), cert. denied,
488 U.S. 870 (1988). All facts and inferences are construed
in the light most favorable to the non-moving party. Peters

                               10



v. Delaware River Port Auth. of Pa. and N.J., 16 F.3d 1346,
1349 (3d Cir.), cert. denied, 513 U.S. 811 (1994).

The substantive law will identify which facts are
"material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Therefore, "[o]nly disputes over facts that
might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment."
Id. An issue is "genuine" if a reasonable jury could possibly
hold in the nonmovant's favor with regard to that issue. Id.

However, at the summary judgment stage, a court may
not weigh the evidence or make credibility determinations;
these tasks are left to the fact-finder. Petruzzi's IGA
Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d
1224, 1330 (3d Cir.), cert. denied, 510 U.S. 994 (1993).
Therefore, to raise a genuine issue of material fact, " `the
[summary judgment] opponent need not match, item for
item, each piece of evidence proffered by the movant,' but
simply must exceed the `mere scintilla' standard." Id.; see
also Anderson, 477 U.S. at 252 ("The mere existence of a
scintilla of evidence in support of the [nonmovant's]
position will be insufficient; there must be evidence on
which the jury could reasonably find for the [nonmovant].").

It is clear, however, that if a moving party satisfies its
initial burden of proving a prima facie case for summary
judgment, the opposing party "must do more than simply
show that there is some metaphysical doubt as to material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, "[t]here must be
sufficient evidence for a jury to return a verdict in favor of
the non-moving party; if the evidence is merely colorable or
not significantly probative, summary judgment should be
granted." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d
Cir. 1994).

The primary issue raised on appeal is fairly
straightforward: whether the district court erred in
discounting the statements made by two of the three
Allegheny County Commissioners--to the effect that
political affiliation was not an important factor for the job
of Deputy Director of Marketing and Communications in
the county's Department of Aviation--in granting the

                                11



defendants' motion for summary judgment. Boyle argues in
his appeal that the district court engaged in an improper
weighing of the evidence. The statements made by the two
Commissioners, Boyle contends, constitute admissions, and
thus, the district court erred in finding that they lacked any
probative significance. We agree.

In arguing for affirmance of the district court's decision,
appellees characterize the deposition testimonies as
"probative of nothing." Appellee's Brf. at 38. Appellees argue
that whatever statements may have been made by the two
Commissioners, the legal test remains whether the
authorized duties and functions of the employee's position
is confidential or policymaking. The statements by the
Commissioners, according to the appellees, shed no light on
the factors which both the Supreme Court and this court
have held to be relevant.

While it is true that both the Supreme Court and this
court have developed various formulations to be applied in
political patronage cases in general, those cases did not
involve statements made by the relevant hiring authority to
the effect that a particular political affiliation was not an
appropriate requirement for the particular position. Indeed,
the precise issue raised in this appeal is one of first
impression in this circuit. While the ever evolving
formulations developed by the Supreme Court and this
court are to be applied in cases which present no
conflicting testimony from members of the hiring authority,
we believe that a rigid application of such tests under the
circumstances of this case would render the relevant
analysis overly formalistic and not consonant with the
principles and rationales underlying the development of the
law in the area of political patronage.

Political patronage is a practice as old as the American
Republic. See Rutan v. Republican Party, 497 U.S. 62, 95
(1990) (Scalia, J., dissenting) (commenting that political
patronage "bears the endorsement of a long tradition of
open, widespread, and unchallenged use that dates back to
the beginning of the Republic"). It has been argued by
commentators that political patronage, while at times
possessing a pejorative connotation, has been a basic and
accepted element in the development of the American form

                               12



of democratic government, essential to maintain loyalty and
strength in the political party system. See R. Hofstadter,
The Idea of a Party System, 225-26 (1969). While political
patronage has certainly been embedded in the fabric of the
American political process, the case law concerning its
limitations in the face of countervailing First Amendment
rights is of more recent vintage.

In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme
Court, in a plurality opinion, held that the discharge of a
government employee because of his political affiliation
violates the freedom of association clause of the First
Amendment. Id. at 373. The case arose from the election of
a Democratic Sheriff of Cook County, Illinois who, upon
taking office, terminated the employment of deputy sheriffs
who were not members or who did not otherwise support
the Democratic party. In finding that such a practice
violated the First Amendment, the Supreme Court generally
ended the practice of "cleaning house," whereby the
prevailing political party would fire many employees who
were members of the losing party, and give the vacant
positions to loyal supporters as the spoils of victory.

The Elrod Court recognized that termination based solely
on political affiliation, on its face, was at war with First
Amendment principles. 427 U.S. at 359. The Court,
however, did not completely do away with the practice, but
recognized that political affiliation was relevant to the
performance of the duties of certain positions. Id. at 367.
The Court justified this exception by weighing the
governmental benefit of considering political affiliation
as a criterion in employment decisions against the
encroachment on an employee's First Amendment
right to political association. Id. A plurality of
the Court distinguished between "policymaking" and
"nonpolicymaking" positions in determining when political
affiliation was relevant for employment decisions. Id. at
367-68. Those positions falling into the former category
were held to be exempt from the general prohibition against
terminating employees based on political affiliation. Id. at
372. Accordingly, a "nonpolicymaking, nonconfidential
government employee" could not be discharged on the sole
ground of his political beliefs. Id. at 375 (Stewart, J.,
concurring). The plurality acknowledged that
                               13



       [n]o clear line can be drawn between policymaking and
       nonpolicymaking positions. While nonpolicymaking
       individuals usually have limited responsibility, that is
       not to say that one with a number of responsibilities is
       necessarily in a policymaking position. The nature of
       the responsibilities is critical . . . . An employee with
       responsibilities that are not well defined or are of broad
       scope more likely functions in a policymaking position.
       In determining whether an employee occupies a
       policymaking position, consideration should also be
       given to whether the employee acts as an adviser or
       formulates plans for the implementation of broad goals.

Id. at 367-68.

The Court also made clear that the intermediate
"exacting" level of scrutiny must be applied. Id. at 362.
Thus, the "interest advanced must be paramount, one of
vital importance, and the burden is on the government to
show the existence of such an interest." Id.

Three years later, the Supreme Court reformulated the
Elrod test. In Branti v. Finkel, 445 U.S. 507 (1979), two
county assistant public defenders brought a civil rights
action alleging that their imminent termination by the
newly appointed Democratic public defender was based
solely on the fact that they were Republicans. The Court
reiterated the general principle that if an employee's
"private political beliefs would interfere with the discharge
of his public duties, his First Amendment rights may be
required to yield to the State's vital interest in maintaining
governmental effectiveness and efficiency." Id. at 517.

The Branti Court was clearly dissatisfied with the
categorical approach enunciated in Elrod, which
distinguished between "policymaking" and
"nonpolicymaking" positions, and sought to clarify that test.
445 U.S. at 518. Accordingly, the Branti Court held that
"the ultimate inquiry is not whether the label `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." 445 U.S.
at 518.

                               14
In Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981), Judge
Gibbons, writing for this court in its first foray into the
political patronage issue, proceeded to adopt a standard
which further refined the Elrod/Branti test by using what
the court termed a "functional analysis" approach. Under
this test, should a difference in party affiliation be "highly
likely to cause an official to be ineffective in carrying out"
the duties of the position, then dismissal for that reason
would not violate the First Amendment. Id. at 521. Applying
that test to the city solicitors in the case, the court found
that a lawyer's duties--e.g., rendering legal opinions,
drafting ordinances, negotiating contracts--defined a
position for which party affiliation was an appropriate
requirement.

In Brown v. Trench, 787 F.2d 167, 168 (3d Cir. 1986),
this court sought to further refine and clarify the
Elrod/Branti test in this circuit by making clear that the
"relevant inquiry is to the function of the public office in
question and not the actual past duties of the particular
employee involved." This court also noted that the

       fact that an employee is in a policymaking or
       confidential position is relevant to the question of
       whether political affiliation is a necessary job
       requirement but this fact is no longer dispositive after
       Branti.

Id. at 168-69. After reviewing a number of cases arising
under Elrod and Branti in other jurisdictions, the Brown
court concluded that the "key factor" seemed to be "not
whether the employee was a supervisor or had a great deal
of responsibility but whether the employee has `meaningful
input into decisionmaking concerning the nature and scope
of a major township program.' " 787 F.2d at 169-70
(quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.
1981), cert. denied, 455 U.S. 1021 (1982)). Factors relevant
in this inquiry include

       whether the employee's duties are simply . . .
       nondiscretionary or technical, . . . whether the
       employee participates in . . . discussions or other
       meetings, whether the employee prepares budgets or
       has authority to hire or fire employees, the salary of

                                  15



       the employee, and the employee's power to control
       others and to speak in the name of policymakers.

Id. at 169 (citations omitted).
To a great degree, the evolution of political patronage law
in the Third Circuit as embodied in the case law discussed
above, set the stage for this court's watershed opinion in
Zold v. Township of Mantua, 935 F.2d 633 (3d Cir. 1991).
Zold's significance lies in its synthesis of prior decisions up
to that point and articulation of the intermediate level of
scrutiny in political patronage cases, consistent with the
principle first enunciated in Elrod by Justice Brennan. See
Elrod, 427 U.S. at 362. In Zold, this court acknowledged
that "[i]t is not always easy to determine whether affiliation
is a legitimate factor to be considered for a particular job,"
and that each decision is "fact specific for that case." 935
F.2d at 635. The court found, however, that although a
"nonpolicymaking, nonconfidential government employee
cannot be discharged on the sole ground of his or her
political beliefs," he or she can be dismissed on that ground
if he or she "acts as an advisor or formulates plans for the
implementation of broad goals." Id. at 635. Of course, as
stated in Branti, the ultimate inquiry is not whether a
position can be termed policymaking or confidential, but
whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective
performance of the public office involved.3 Id.

The Zold decision is significant for its explicit adoption of
the special scrutiny standard. But as with Elrod and Branti,
and their progeny, the adoption of the special scrutiny
_________________________________________________________________

3. Significantly, this court held that because the case implicated the
First
Amendment, it would "make an independent examination of the whole
record." Zold, 935 F.2d at 636. Relying on New York Times v. Sullivan,
376 U.S. 254 (1964), the court concluded that when an issue on appeal
turns on a "constitutional fact"--those whose determination is decisive of
a constitutional issue--appellate courts are obligated to review such
facts with "special scrutiny." Zold, 935 F.2d at 636. Moreover, an
appellate court "may draw its own inference from facts in the record." Id.

We have accordingly undertaken an independent examination of the
record developed in the district court and have drawn our own
inferences from those facts.

                               16



standard does not in and of itself provide a great deal of
guidance in the practical application of that test, and thus,
Zold reaffirms the limitations inherent in attempting to
establish factors to be used by courts in analyzing political
patronage claims.

The lack of explicit guidance from the Supreme Court
and this court thus far, however, results in a greater
flexibility on the part of lower courts to determine each case
under its own facts and in its own context. Thisflexibility
may serve the dual goals of the Elrod/Branti exception: to
permit governmental entities to use political affiliation
where the governmental interest is "overriding" and of "vital
importance," while concomitantly protecting the individual's
right to freedom of association guaranteed by the First
Amendment. Elrod, 427 U.S. at 362, 368; Branti, 445 U.S.
at 515-16.

To this end, Elrod, Branti and their progeny have
established certain principles of law which constitute the
general parameters by which the analysis must be guided.
These cases require courts to focus on various factors,
including whether an employee is a "nonpolicymaking,
nonconfidential government employee," Elrod, 427 U.S. at
375 (Stewart, J., concurring), whether a difference in party
affiliation would be "highly likely to cause an official to be
ineffective in carrying out" the duties of the position, Ness,
660 F.2d at 521, whether "the employee has meaningful
input into decision making concerning the nature and
scope of a major . . . program," Brown, 787 F.2d at 169-70,
or whether the employee "acts as an advisor or formulates
plans for the implementation of broad goals," Zold, 935
F.2d at 635; Peters, 16 F.3d at 1354.

The "burden of proof is on the defendant to demonstrate
`an overriding interest' in order to validate an encroachment
on an employee's First Amendment rights." Zold, 935 F.2d
at 635 (quoting Elrod, 426 U.S. at 368); see also Rosenthal
v. Rizzo, 555 F.2d 390, 394 n.5 (3d Cir.), cert. denied, 434
U.S. 894 (1977). This burden is "substantial." Burns v.
County of Cambria, 971 F.2d 1015, 1022 (3d Cir. 1992),
cert. denied, 506 U.S. 1081 (1993). Moreover, the court
must apply the intermediate "exacting" level of scrutiny.
Elrod, 427 U.S. at 362; Zold, 935 F.2d at 636.

                               17



In general, courts are also advised to look to the
"function[s] of the office in question and not the actual past
duties of the particular employee involved." Peters, 16 F.3d
at 1353; Brown, 787 F.2d at 168; O'Connor v. Steeves, 994
F.2d 905, 911 (1st Cir.) ("[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."), cert.
denied, 510 U.S. 1024 (1993). Although actual past duties
are not determinative, they may be informative. Waskovich
v. Morgano, 2 F.3d 1292, 1300 (3d Cir. 1993).
The question of whether an employee falls within the
Elrod/Branti exception is generally one of fact. Furlong v.
Gudknecht, 808 F.2d 233, 235 (3d Cir. 1986); Rosenthal,
555 F.2d at 393 n.5. However, summary judgment may be
appropriate in certain circumstances. Ness, 660 F.2d at
521.

The above described principles are certainly applicable to
ordinary political patronage cases. However, the existence
of the deposition testimonies in this case takes this case,
we believe, out of the ordinary realm. The case law
developed in this area has generally not involved a similar
situation where a hiring authority specifically testifies that
political affiliation is not an appropriate requirement for a
particular position. In resolving this issue, then, it is
important to keep in mind that the touchstone of political
patronage analysis is that the "hiring authority [must]
demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public
office involved." Branti, 445 U.S. at 518 (emphasis
supplied).

Under the Pennsylvania Constitution, the "corporate
power of the county [is] vested in a board of county
commissioners." 16 Pa.Cons.Stat.Ann. S 3203. Accordingly,
Boyle argues, and appellees do not dispute, that a majority
of the Board of County Commissioners are the only officials
vested with the authority to appoint or dismiss Boyle. When
a majority of the Board--and thus, a majority of the "hiring
authority"--testifies that political affiliation is not an
appropriate requirement for the position of Deputy Director,

                               18



it is difficult to see how this fact can be considered "merely
colorable or not significantly probative."4

In support of the district court's decision, the appellees
rely on Waskovich v. Morgano, 2 F.3d 1292 (3d Cir. 1993).
In that case, plaintiff, a Republican, alleged that he was
terminated from his position as Director of Veterans'
Administrative Services for the State of New Jersey on the
basis of his political affiliation after Governor Florio took
office. The district court granted summary judgment in
favor of the defendants, finding that the plaintiff occupied
a confidential, policymaking position from which he could
be dismissed on the basis of political affiliation. Waskovich
v. Morgano, 800 F. Supp. 1220 (D.N.J. 1992). On appeal,
this court affirmed.

The plaintiff argued on appeal that summary judgment
was inappropriate because two government officials had
testified that political affiliation was not a proper
requirement for the position of Director of Veterans'
Administrative Services. The Deputy Adjutant General had
testified that "party affiliation is not a qualification for the
job of [D]irector of veterans' Administrative Services."
Waskovich, 2 F.3d at 1301. In addition, the Deputy
Commissioner testified that political affiliation did not play
a part in whether the Director retains his job. Id.

This court held that these deposition testimonies did not
create a genuine issue of material fact based on the
absence of such testimony favorable to the plaintiff by the
Adjutant General himself, "the only official who is vested
with the statutory authority to appoint or dismiss the
Director." Id. at 1302. The question, this court reasoned,
must focus on whether the Adjutant General, as the hiring
_________________________________________________________________

4. Moreover, although the district court disposed of the significance of
the testimonies in conclusory fashion, the language employed by the
court reveals that it may have crossed the threshold into inappropriate
weighing of the evidence. The district court found the testimonies to be
insignificant "[i]n light of the undisputed evidence regarding plaintiff
's
authorized and actual duties as Deputy Director . . . ." The court did not
merely note the existence of contradictory evidence, but rather,
measured the weight of the deposition testimonies with what it regarded
as overwhelming evidence on the other side.

                               19



authority, had a valid basis to prefer an individual of one
political party over another.5Id.
_________________________________________________________________

5. The Waskovich court also noted that the two government officials had
also testified to the importance of the Director's sharing the same
general philosophy as his superiors. 2 F.3d at 1301-02. One government
official had testified that "[i]t is extremely important that . . . we are
all
in concurrence in regard to the philosophy that the Department has
adopted, to [e]nsure that the policy has been carried out." The other
official testified stressed the importance of the Director and his
superiors
sharing the same "philosophical judgment."

Appellees in this case point to what they describe as similar favorable
testimony by Cranmer:

       Q: Third: "Coordinating the airport public information program." Is
       there a rational connection between party affiliation and doing
       that, those duties?

       A: Well, again, there is not. Now certainly, there is a
relationship
       between -- Certainly want people working for you that share the
       same goals and objectives and the manner in which you are
       going to arrive at those objectives in those positions. Whether
       they be Democrats or Republicans is irrelevant, but certainly,
       the previous administration and majority of the people that
       worked for the previous administration, there was a different
       ideology, there was a different mind set. They had different
       objectives, so to say if someone is a Democrat or Republican at
       face value, that those two labels mean anything isn't the case,
       but certainly, what they believe does.

       * * *

       Q: Is it a legitimate consideration for placement or retention the
       fact that someone voted Democrat or Republican or voted for
       you?

       A: I am saying in some cases, it could be; in some cases, it
       wouldn't be. It all depends on that individual.

       Q: So it's an individual decision, is that what you are saying?

       A: It's still based upon that person and what they believe and what
       they stand for; and because of that, they vote one way or they
       vote the other. Generally, there probably could be a line that
       could be drawn down party-by-party affiliation, but that doesn't
       always hold true.

This testimony is notable for its utter vagueness and ambiguity. It seems
that the only clear statement made by Cranmer is that there is no

                               20



Waskovich is readily distinguishable. In the case at bar,
Cranmer and Dawida were not merely government officials
who lacked hiring authority. Rather, they were two out of
three Commissioners who had the actual authority to
appoint or dismiss Boyle. Indeed, their testimonies relate
directly to whether the "hiring authority" had a valid basis
to prefer an individual of one political party over another.

Case law in this circuit and elsewhere6 supports the
conclusion that statements by a hiring authority to the
effect that political affiliation is not a proper requirement
for a particular governmental position are indeed
significant. In Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir.),
cert. denied, 434 U.S. 894 (1977), for example, plaintiff had
been appointed to a position as an Administrative Assistant
II in a department of the Redevelopment Authority of
Philadelphia. When a new Executive Director took office,
plaintiff was terminated. Plaintiff filed suit alleging that,
inter alia, he was terminated for his political affiliation in
violation of his First Amendment rights. Id. at 391-92.

Evidence adduced through discovery was conflicting. On
the one hand, deposition testimony revealed that plaintiff
was merely a "soldier;" that he only oversaw bidding
practices to uncover corruption and to ensure that policies
implemented by others were carried out; that he had no
power to decide which bids for relocation work would be
accepted; and that he only worked for the actual
policymaker in the department. Id. at 392. At one point, the
Executive Director himself testified that the plaintiff's
primary duty was to act as a spy for the former Director of
the Authority. Id. On the other hand, evidence also showed
_________________________________________________________________

rational connection between party affiliation and performing the duty of
"Coordinating the airport public information program." At best, Cranmer
testified that similar ideology, in general, is desirable, but he makes no
reference to Boyle's duties in this context. Such vague statements cannot
measure against the rather clear statements at issue in Waskovich.

6. See, e.g., Burchett v. Cheek, 637 F. Supp. 1249, 1251 (W.D. Va. 1985)
(ordering reinstatement of assistant registrar of county based, inter
alia,
on trial testimony of general registrar that political affiliation was
irrelevant to position), aff'd, 829 F.2d 1319 (4th Cir. 1987), cert.
denied,
486 U.S. 1006 (1988).

                               21



that the plaintiff helped rewrite the "relocation code"; that
he was a "top line" employee; and that he oversaw work
and reviewed bids. Id. In reversing the district court's grant
of summary judgment, the court stated that

       the determination of status as a policymaker vel non
       presents a difficult factual question. Where there is
       evidence to support the employee's claim that he does
       not make policy, as there is here, he is entitled to a   full
       trial on the issue. Indeed, the state bears the burden   of
       persuasion on that question at trial. Certainly, then,   it
       was improper for the district court to weigh the
       evidence and rule against [plaintiff] on this issue on   a
       Rule 56 motion.

Id. at 394 n.5.
This court went on to find that "two of the defendants
admitted [plaintiff's] status as a non-policymaker, while as
to the other two defendants, [plaintiff 's] status represented
a genuine issue of material fact." Id. This court held that
the district court erred in granting summary judgment to
defendants on these facts, finding that the lower court had
improperly engaged in weighing the evidence. Id. at 392-93.

In Furlong v. Gudknecht, 808 F.2d 233, 235 (3d Cir.
1986), the plaintiff, a Second Deputy to the Recorder of
Deeds and a Democrat, brought an action in the Eastern
District of Pennsylvania to preliminarily enjoin the newly
elected Republican Recorder of Deeds from terminating her
position. The district court granted the plaintiff's motion for
a temporary restraining order and a preliminary injunction
based, in part, upon the following testimony of the
defendant Recorder of Deeds:

       [Q.] Mr. Gudknecht, is political party affiliation of the
       first or second deputy important with respect to
       the performance of their official duties?

       [A.] No, it's not.

Id. The defendant, in later testimony, attempted to change
his answer, but the district court, while allowing it into

                                22



evidence, discredited the later testimony. Id. This court
affirmed.7

The notion that statements made by members of a hiring
authority--to the effect that political affiliation is not a
proper consideration in hiring or firing--constitute
probative evidence is consonant with the rationale and
policy underlying the Elrod/Branti exception. We do not
dispute that political patronage has traditionally played an
important role in the political process, and as has been
vigorously argued by various judges and legal
commentators, political patronage has proven to be a
necessary and beneficial practice. As a practical matter,
however, political patronage provides benefits which inure
primarily to the elected officials invoking the privilege.
Indeed, as Justice Brennan writing for the plurality in Elrod
persuasively argued, the benefits derived from political
patronage should not be overstated.8 As noted by the Court
_________________________________________________________________

7. It should be noted that Furlong dealt specifically with the issue of
whether the possibility of an employee's statutory ascension to a
superior's elected office in itself is sufficient to qualify the
employee's
position for an Elrod/Branti exception. Accordingly, this case is not
directly on point with the facts of the case at bar. However, it is
instructive to note how both the district court and this court addressed
the admission by the Recorder of Deeds that political affiliation was not
important with respect to the position of second deputy. In contrast to
the district court in this case, both courts found that particular
evidence
extremely probative.

8. In his opinion, Justice Brennan identified three separate governmental
interests arguably served by political patronage dismissals: (1) the
interest in effective and efficient government; (2) the need for loyal
employees to implement the programs of a democratically elected
administration; and (3) the preservation of strong and broad-based
political parties. Elrod, 427 U.S. at 364-68.

With regard to the first identified interest, Justice Brennan noted that
rather than promoting efficiency, "the wholesale replacement of large
numbers of public employees every time political office changes hands
belies this justification." Id. at 364. Moreover, it is not clear at all,
Justice Brennan continued, that political patronage dismissal will result
in replacement by a person "more qualified to do the job since
appointment often occurs in exchange for the delivery of votes, or other
party service, not job capability." Id. at 364-65. Justice Brennan

                               23



in O'Hare Truck Service, Inc. v. City of Northlake, ___ U.S.
___, 116 S.Ct. 2353, 2361 (1996), the "absolute right to
enforce a patronage scheme . . . has not been shown to be
a necessary part of a legitimate political system in all
instances." Thus, while the general public certainly derives
benefits from political patronage--insofar as strong political
parties are an important aspect of the American democratic
process--these benefits are, at best, indirect.9 As Justice
_________________________________________________________________

concluded by commenting that "[m]ore fundamentally, . . . the argument
does not succeed because it is doubtful that the mere difference of
political persuasion motivates poor performance; nor do we think it
legitimately may be used as a basis for imputing such behavior." Id. at
365.

In response to the loyalty argument, Justice Brennan acknowledged
that it possessed some force, but was ultimately unavailing. The
government's interest in loyalty can be adequately protected by
"[l]imiting
patronage dismissals to policymaking positions . . .." Id. at 367.

With regard to the third justification for political patronage, Justice
Brennan first acknowledged that the preservation of the democratic
process was an interest the protection of which may in certain
circumstances justify limitations on First Amendment rights. Id. at 368.

       But however important preservation of the two-party system or any
       system involving a fixed number of parties may or may not be, . . .
       we are not persuaded that the elimination of patronage practice or,
       as is specifically involved here, the interdiction of patronage
       dismissals, will bring about the demise of party politics.
Political
       parties existed in the absence of active patronage practice prior
to
       the administration of Andrew Jackson, and they have survived
       substantial reduction in their patronage power through the
       establishment of merit systems.

Id. at 369 (citations omitted).

9. As intimated previously, this court recognizes that this somewhat
narrow view of political patronage as fundamental to the democratic
process, as espoused by Justice Brennan, is not universally accepted. In
his dissent in Branti, Justice Powell admonished that "[p]atronage
appointments help build stable political parties by offering rewards to
persons who assume the tasks necessary to the continued functioning of
political organizations." 445 U.S. at 528. Justice Powell emphasized the
historic role of political patronage in democratizing the political
process,
stimulating political activity over a wider pool of the American
population

                                  24



Brennan cogently noted, "[p]artisan politics bears the
imprimatur only of tradition, not the Constitution." Elrod,
427 U.S. at 369 n.22.

Moreover, whatever benefits the "tradition" of political
patronage may provide surely is counterbalanced by the
resulting limitation on First Amendment freedoms. In Elrod,
Justice Brennan noted that "[p]atronage . . . to the extent
it compels or restrains belief and association is inimical to
the process which undergirds our system of government
and is `at war with the deeper traditions of democracy
_________________________________________________________________

and contributing to the maintenance of strong and accountable political
parties. Elrod, 427 U.S. 377-79 (Powell, J., dissenting); Branti, 445 U.S.
522 n.1 (Powell, J., dissenting). These themes are shared with equal
conviction by Justice Scalia who, in a dissenting opinion in Rutan,
concluded that "[s]uch a venerable and accepted tradition [as political
patronage] is not to be laid on the examining table and scrutinized for
its
conformity to some abstract principle of First Amendment adjudication
devised by this Court. To the contrary, such traditions are themselves
the stuff out of which the Court's principles is to be formed." 497 U.S.
95-96 (Scalia, J., dissenting).

Similarly, former Chief Judge Ruggero J. Aldisert has been extremely
critical of the Elrod/Branti decisions, noting that his only reason for
following them was his strong loyalty to stare decisis. Loughney v.
Hickey, 635 F.2d 1063, 1065 (3d Cir. 1980) (Aldisert, J., concurring)
(characterizing his disagreement with Elrod and Branti as "vehement
disagreement"). In Judge Aldisert's view, Elrod and Branti

       reflect the apogee of a process that seeks to "constitutionalize"
the
       entire fabric of American society. This process transmutes the
       United States Constitution from a broad statement of moral values
       into a detailed code of conduct, ignoring Chief Justice Marshall's
       admonition that "we must never forget, that it is a constitution we
       are expounding."

Id. (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819)).
Judge Aldisert is not the only member of this court to hold a critical
view
of the limitations imposed on the practice of political patronage by the
Elrod/Branti line of decisions. See,e.g., Carver v. Foerster, 102 F.3d 96,
105-10 (3d Cir. 1996) (Becker, J., concurring).

We believe, however, that such views--which essentially raise the
"tradition" of political patronage above the fundamental rights provided
in the First Amendment--remain in the minority.

                               25



embodied in the First Amendment.' " 427 U.S. at 357
(quoting Illinois State Employees Union v. Lewis , 473 F.2d
561, 576 (7th Cir. 1972), cert. denied, 410 U.S. 928 (1973)).
"Thus, if patronage contributes at all to the elective
process, that contribution is diminished by the practice's
impairment of the same." Id. at 369. And whatever "the
gain to representative government provided by the practice
of patronage, if any, would be insufficient to justify its
sacrifice of First Amendment rights."10 Id.

That whatever benefits derived from political patronage
are "diminished by the practice's impairment of "
fundamental First Amendment principles is manifested in
the very structure of political patronage analysis mandated
under Elrod, Branti and their progeny. For instance, the
burden, characterized as a substantial one, is placed
squarely upon defendants to prove that political affiliation
is an appropriate requirement for a particular position.
Moreover, courts must apply the intermediate "exacting"
level of scrutiny in such cases.

Accordingly, political patronage is a practice which
primarily benefits those political entities that invoke the
privilege. When those political entities themselves testify
that political affiliation is or should not be an important
consideration, as in this case, such evidence, at the very
least, creates a genuine issue of material fact precluding
summary judgment. Put another way, if the hiring
authority is obligated to demonstrate that political
affiliation is an appropriate requirement for a particular
position, then we cannot see how its own statements
relating directly on the issue can be considered anything
less than probative. The appellees' argument, to the effect
that the testimonies of the two Commissioners should be
ignored and the court should rely solely on the inherent
functions of the position in question, exalts form over
_________________________________________________________________

10. That the Supreme Court's expansive view of First Amendment rights
in the context of political patronage cases remains intact is exemplified
by its decision last year in O'Hare Truck Service, in which the Court
extended the protections of Elrod and Branti to independent contractors.
O'Hare Truck Service thus overruled this court's prior decision in Horn v.
Kean, 796 F.2d 668 (3d Cir. 1986) (en banc).

                                26



substance in the context of this case, rendering the
analysis called for under Elrod, Branti and their progeny
overly formalistic. The significant encroachment upon First
Amendment rights by the practice of political patronage
does not justify such an approach.

III. Conclusion

For the foregoing reasons, the district court's order
granting defendants' motion for summary judgment is
reversed, and this matter will be remanded to the district
court for further proceedings.

A True Copy:
Teste:

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

                                27
