
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1701                                MAGALY ROLDAN-PLUMEY,                                Plaintiff - Appellant,                                          v.                               HIRAM E. CEREZO-SUAREZ,                          PERSONALLY AND AS COMMISSIONER FOR                              MUNICIPAL AFFAIRS, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                _____________________               Carlos A.  del Valle-Cruz,  with whom Juan  Rafael Gonz lez-               _________________________             ______________________          Mu oz  and Gonz lez  Mu oz &  Qui onez Tridas  were on  brief for          _____      __________________________________          appellant.               Sylvia    Roger-Stefani,   Assistant    Solicitor   General,               _______________________          Department  of Justice,  with  whom  Carlos Lugo-Fiol,  Solicitor                                               ________________          General and Edda Serrano-Blasini, Deputy Solicitor General,  were                      ____________________          on brief for appellees.                                 ____________________                                     June 4, 1997                                 ____________________                    TORRUELLA,  Chief Judge.   On  May 4,  1994, Plaintiff-                    TORRUELLA,  Chief Judge.                                ___________          Appellant  Magaly Rold n-Plumey  ("Rold n") brought  this Section          1983  suit  against   Defendants-Appellees  Hiram   Cerezo-Su rez          ("Cerezo"),  Commissioner of Municipal  Affairs for  Puerto Rico,          and Sandra Valent n ("Valent n"),  Director of the Legal Division          of the  Office of the Commissioner of Municipal Affairs ("OCMA"),          in their individual  and official capacities.   The suit  alleged          that appellees, in violation  of Rold n's First Amendment rights,          dismissed  her  from  her  position  of  Hearing  Examiner  (also          referred  to  as  Examining  Officer) because  of  her  political          beliefs.    The  district  court granted  appellees'  motion  for          summary  judgment on  the  ground that  party  affiliation is  an          appropriate  requirement  for the  effective  performance of  the          position of  Hearing Examiner  and, consequently, that  appellees          were  entitled to dismiss Rold n  on those grounds.   See Opinion                                                                ___          and Order, March 5, 1996, at 10.  Having ruled on the merits, the          district  court did  not address,  inter alia,  whether appellees                                             __________          were entitled to qualified immunity.                    In  contrast to  the  lower  court,  we find  that  the          inherent   duties  of   Rold n's  position  do   not  demonstrate          policymaking attributes sufficient to subject Rold n to discharge          based  on her  political  beliefs and,  accordingly, reverse  the          entry of summary judgment.   Moreover, having found cause  to set          aside the  judgment on the merits, we address appellees' argument          that they are entitled to qualified immunity and find it wanting.                                         -2-                                      BACKGROUND                                      BACKGROUND                    On  March  1, 1992,  Rold n  accepted  the position  of          Hearing Examiner with the Office of the Commissioner of Municipal          Affairs.  The OCMA is the main regulatory agency of Puerto Rico's          municipalities and is charged with uncovering, investigating, and          reporting   to  municipal   mayors  any  irregularities   in  the          municipalities'  management.   P.R.  Laws  Ann. tit.  21,    4909          (1995).  The office is further obligated to provide various forms          of "technical  and professional assistance to  the municipalities          relating  to  their organization,  administration,  functions and          operation."    Id.      4902.    The   Commissioner  developed  a                         ___          confidential and trust employee plan under which employees in the          OCMA were classified  in accordance with  the Puerto Rico  Public          Service Personnel Act, P.R. Laws Ann. tit. 3,   1301 et seq.  The                                                               _______          plan, developed  by Cerezo's predecessor as  Commissioner, Ismael          Pag n-Colberg, designated the position  of "examining officer" as          a trust position.  According to this document, the OCMA positions          designated as  trust or  confidence positions were  only "[t]hose          positions whose holders intervene or collaborate substantially in          the formulation of public policy, which directly advise or render          direct  services  to  the  Commissioner  of  the  Office  of  the          Commissioner  of Municipal Affairs."   Def. Exh. IV  to Motion to          Summary Judgment.                    The  classification,   or  job  description,   for  the          position of "Examining Officer"  sets forth the position's duties          as follows:                                         -3-                    DUTIES OF POSITION                    Professional and technical work that requires                    great  knowledge  of the  principles  and the                    practice  of  law and  the ability  to direct                    research    procedures    leading    to    an                    adjudicative determination.                    1.   Holds  administrative hearings  required                         by the Autonomous Municipalities Act and                         any other necessary  one[s] to carry out                         the duties assigned to the Commissioner.                         Regulates  the   procedures  during  the                         [performance] of the same.                    2.   Takes  oaths  and  declarations,  issues                         summons for the appearance  of witnesses                         and the filing of reports, documents and                         other evidence necessary to solve cases.                    3.   Evaluates   evidence    and   comes   to                         conclusions of facts and law.                    4.   Carries  out  legal   studies  for   the                         solution of cases.                    5.   Issues reports with his  conclusions and                         recommendations to the Commissioner.                    6.   Carries   out  other   assigned  related                         duties.          Def. Exh. V to Motion for Summary Judgment.                    On November  4,  1992, Pedro  Rossell  ("Rossell "),  a          member  of  the  New   Progressive  Party  ("NPP"),  was  elected          governor.  In March  1993, Rossell  appointed Cerezo Commissioner          of  Municipal Affairs.  In April  1993, Cerezo appointed Valent n          to head the Legal  Division of the OCMA.  On  May 6, 1994, Rold n          received a dismissal letter effective that same date.                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                    We  review  the  grant  of summary  judgment  de  novo,                                                                  ________          viewing  the facts, and drawing all reasonable inferences, in the                                         -4-          light  most  favorable  to   the  non-movant,  here  Rold n,  and          affirming summary judgment only "if  no genuine issue of material          fact exists."   O'Connor v.  Steeves, 994 F.2d  905, 906-07  (1st                          ________     _______          Cir. 1993).                                      DISCUSSION                                      DISCUSSION          I.        Political Discharge Claim          I.        Political Discharge Claim                    We  turn  first to  the grounds  on which  the district          court granted summary judgment to Cerezo and Valent n.  More than          twenty  years ago,  a plurality  of the  Supreme Court  held that          governmental employers  may not discharge an  employee because of          her political affiliation without showing a governmental interest          sufficiently  vital to  outweigh  the employee's  First Amendment          right to association.   Elrod v. Burns, 427 U.S. 347, 355-56, 362                                  _____    _____          (1976).   The plurality  found that the  government's interest in          effective  implementation of  its  policies can  be achieved  "by          limiting patronage dismissals to policymaking positions."  Id. at                                                                     ___          372.  Justice Stewart's concurrence gave the Court a majority for          the proposition that  nonpolicymaking, nonconfidential  employees          should not be discharged on the basis of their political beliefs.          Id. at 374-75 (Stewart, J., concurring in the judgment).          ___                    The Court next attempted to define the contours  of the          prohibition on political  discharge in Branti v. Finkel, 445 U.S.                                                 ______    ______          507 (1980).   Instead  of applying Elrod's  policymaking inquiry,                                             _____          the Branti Court relied upon a finding that political affiliation              ______          is not  an appropriate requirement for  the effective performance          of the position  of assistant  public defender.   Id. at  518-19.                                                            ___                                         -5-          The  Branti Court  again,  however,  imposed  the burden  on  the               ______          governmental body  seeking dismissal:   "[U]nless  the government          can demonstrate 'an  overriding interest'  'of vital  importance'          requiring that a person's private beliefs conform to those of the          hiring  authority,  his  beliefs  cannot be  the  sole  basis for          depriving  him of  continued public  employment."  Id.  at 515-16                                                             ___          (citations omitted).  Of fundamental importance  is the idea that          "conditioning continued public employment on an employee's having          obtained support  from a particular political  party violates the          First  Amendment   because  of  'the  coercion   of  belief  that          necessarily flows from the knowledge that one must have a sponsor          in the dominant  party in order to retain one's  job.'"  Rutan v.                                                                   _____          Republican Party  of Illinois,  497 U.S.  62, 70 (1990)  (quoting          _____________________________          Branti, 445 U.S. at 516).          ______                    More  recently,   in  Rutan  v.  Republican   Party  of                                          _____      ______________________          Illinois,  the  Court  extended  the reach  of  the  Elrod-Branti          ________                                             _____ ______          doctrine  to  politically  motivated  promotions,  transfers, and          recalls.  Rutan, 497 U.S. at  70.  The Court reaffirmed the heavy                    _____          burden on government employers to show that the use of "patronage          practices are  narrowly  tailored  to  further  vital  government          interests."  Id. at 74.  The Court reiterated that                       ___                    [a]   government's   interest   in   securing                    effective   employees   can    be   met    by                    discharging, demoting,  or transferring staff                    members   whose   work  is   deficient.     A                    government's  interest in  securing employees                    who  will loyally implement  its policies can                    be   adequately   served   by   choosing   or                    dismissing  certain  high-level employees  on                    the basis of their political views.                                         -6-          Id.      Unless  a   position   is  one   that   requires  policy          ___          implementation,  or  is  confidential  in nature  (a  claim  that          appellees here  do  not make  and  to which  we need  not  allude          hereafter),  a  government  employer  must  rely  on  traditional          discharge criteria.                    Based on  this case law,  this circuit has  developed a          two-part test  for discerning  when discharge based  on political          affiliation is permissible.   First, we inquire into  whether the          discharging agency's functions entail "'decision making on issues          where  there is room for political disagreement on goals or their          implementation.'"   O'Connor,  994 F.2d  at 910  (quoting Jim nez                              ________                              _______          Fuentes  v. Torres  Gaztambide,  807 F.2d  236, 241-42  (1st Cir.          _______     __________________          1986)).    If so,  we  next  determine  "whether  the  particular          responsibilities   of  the   plaintiff's  position,   within  the          department or agency, resemble  those of a policymaker, privy  to          confidential information,  a communicator,  or some  other office          holder  whose  function is  such  that  party  affiliation is  an          equally  appropriate  requirement  for  continued  tenure."   Id.                                                                        ___          (internal quotation marks omitted); see also Jim nez Fuentes, 807                                              ________ _______________          F.2d at  241-42.  In reviewing this  second prong, we have looked          to "relative pay, technical  competence, power to control others,          authority  to   speak  in   the  name  of   policymakers,  public          perception,  influence   on   programs,  contact   with   elected          officials, and responsiveness to partisan  politics and political          leaders."  O'Connor, 994 F.2d at 910.                     ________                    A.   Agency functions                    A.   Agency functions                                         -7-                    In  her opposition  to  appellees'  motion for  summary          judgment, Rold n conceded that OCMA  is an agency whose functions          require  "'decision making  on  issues where  there  is room  for          political disagreement  on goals or their  implementation.'"  Id.                                                                        ___          For the purposes of this appeal, therefore, we consider the first          prong satisfied.                    B.   Whether the position involves policymaking                    B.   Whether the position involves policymaking                    Under  the second  prong, the  question is  whether the          responsibilities of the position  of Hearing Examiner resemble "a          policymaker, a privy to confidential information, a communicator,          or some other  office holder  whose function is  such that  party          affiliation  is an  equally  appropriate requirement."    Jim nez                                                                    _______          Fuentes, 807  F.2d at 242.   We have held  time and again  that a          _______          court,  in  making this  determination, is  to  look only  to the          duties inherent to the position and is not to consider the actual          functions  of either past or present officeholders.  See id.; see                                                               ___ ___  ___          also O'Connor, 994 F.2d  at 911 ("[T]he analysis must  focus upon          ____ ________          the  'powers  inherent  in a  given  office,  as  opposed to  the          functions performed by a  particular occupant of that office.'");          Cordero  v. Jes s-M ndez, 867 F.2d  1, 9 (1st  Cir. 1989); Romero          _______     ____________                                   ______          Feliciano v. Torres Gaztambide, 836 F.2d 1, 3 (1st Cir. 1987); De          _________    _________________                                 __          Abadia  v. Izquierdo Mora, 792  F.2d 1187, 1192  (1st Cir. 1986).          ______     ______________          We consider the  job description  to be the  best, and  sometimes          dispositive,  source  for  determining  the  position's  inherent          functions.  See Ortiz Pi ero v. Rivera Arroyo, 84 F.3d 7, 13 (1st                      ___ ____________    _____________          Cir. 1996)  (stating that  "written, signed job  descriptions may                                         -8-          provide  highly probative  evidence  as  to the  responsibilities          inherent in a particular  government position, and may even prove          dispositive"); Romero Feliciano, 836  F.2d at 3 (recognizing that                         ________________          "we  have considered the OP-16  dispositive in .  . . Puerto Rico          political   discrimination  cases");   M ndez  Palou   v.  Rohena                                                 _____________       ______          Betancourt,  813  F.2d  1255,  1260 (1st  Cir.  1987)  ("Whenever          __________          possible, we will  rely upon  this document  because it  contains          precisely  the  information  we need  concerning  the  position's          inherent powers . . . .").                    The  Hearing  Examiner  job  description  details  five          specific responsibilities and designates a further responsibility          to "carr[y] out other  assigned related duties."  The  five well-          defined responsibilities make clear  that the position of Hearing          Examiner leaves  little room for free-ranging actions independent          of their limited scope.  The narrow duties require application of          technical  and  professional  skills   in  evaluating  facts  and          researching  law.  They are not  broad and open-ended, and do not          leave   room    for   discretionary   policymaking    or   policy          implementation.  Nor  are they "hazily  defined."  See Alfaro  de                                                             ___ __________          Quevedo v. De  Jes s Schuck, 556  F.2d 591, 593 (1st  Cir. 1977).          _______    ________________          The  narrowly circumscribed  duties permit  the  officeholder the          opportunity to  identify and  investigate irregularities,  but do          not convey  power or discretion to take any action as a result of          these findings.  Indeed, in their brief, appellees recognize that          "plaintiff's position as described  in her job description seemed                                         -9-          to involve technical and  professional skills."  Appellees' Brief          at 20.                    In addition, the limited nature of the position differs          substantially  from most  of those  positions for  which  we have          previously  found  political  affiliation  to  be  an appropriate          requirement.   For instance,  in  Agosto-de-Feliciano v.  Aponte-                                            ___________________     _______          Roque,  889 F.2d  1209, 1213  (1st Cir.  1989), we  reviewed four          _____          positions  to   determine   the  appropriateness   of   political          affiliation.   The job description  of the first  position listed          twenty-six  responsibilities   including  supervising  employees,          representing  the  regional  director  at  public  meetings,  and          overseeing the  respective office  when the director  was absent.          Id.   The second position  under review required the officeholder          ___          to  act as a liaison  between the Department  of Public Education          and private  schools, to  coordinate a  teaching  program in  the          project school, and  to direct a  regionwide committee on  school          organization.   Id.  The third position consisted of twenty-three                          ___          responsibilities,  requiring the  officeholder  to survey  needs,          develop  work  plans,  evaluate  curricula  and  training, manage          vocational education, and  supervise student organizations.   Id.                                                                        ___          The  position  also  included   a  supervisory  component.    Id.                                                                        ___          Finally,  the  job description  for  the  fourth position  listed          twenty-one    broadly    stated    duties,    including    budget          administration, oversight of  programs relating to school  needs,          transportation,   and   student  services,   and   evaluation  of          personnel.   Id. at  1214-15.  These  high-level positions,  with                       ___                                         -10-          their  numerous,  loosely defined  responsibilities,  allowed the          officeholders considerable power and discretion in the management          of  Puerto  Rico's  Department   of  Education.    They  included          oversight,  evaluation,  and  revision  of programs  as  well  as          supervision of personnel.  Some  allowed the officeholder to  act          in  place  of  department  heads.    The  circumscribed  list  of          responsibilities of  the position of Hearing  Examiner grants the          officeholder no such broadly defined powers.                    In O'Connor v.  Steeves, we found that  the position of                       ________     _______          superintendent,  which gave  the officeholder  responsibility for          the  administration of  all  departments of  city government  and          required  policymaking,  acting  as  a  city  representative, and          supervising personnel, all  duties absent here, was one for which          political   affiliation   was   an   appropriate   consideration.          O'Connor, 994 F.2d at 911.          ________                    In the seminal  political discrimination case,  Jim nez                                                                    _______          Fuentes  v. Torres Gaztambide, 807  F.2d 236 (1st  Cir. 1986) (en          _______     _________________          banc),  this court reviewed the claims of plaintiffs who had been          discharged  from their  positions  as Regional  Directors of  the          Puerto Rico Urban  Development and Housing  Corporation ("CRUV"),          attached  to the  Department  of Housing  of the  Commonwealth of          Puerto Rico.   Id. at 237-38.   Approximately 3,000 of the  3,600                         ___          CRUV  employees served under the disputed positions.  Id. at 243.                                                                ___          The  job  descriptions  consisted  of  twenty  duties,  including          directing, planning, and  supervising the operational  activities          of the entire region, developing and implementing new programs or                                         -11-          discerning  ways   to  improve  existing  programs,   serving  as          spokesperson  for  the  Executive and  Associate  Directors,  and          controlling  the  region's budget,  all  duties  of a  high-level          policymaker.   Id. at 244;  see also Raffucci  Alvarado v. Zayas,                         ___          ________ __________________    _____          816  F.2d 818, 821-22 (1st Cir. 1987) (finding position of Social          Services Regional Director  sufficiently entailed policymaking to          render political affiliation relevant).                    The position  at issue here is  readily distinguishable          from those at issue in Jim nez Fuentes and O'Connor, and  is more                                 _______________     ________          akin to the position  of Internal Auditor, which we  addressed in          Cordero v.  Jes s-M ndez,  867  F.2d  1 (1st  Cir.  1989).    The          _______     ____________          position of Internal Auditor did not require the  officeholder to          engage in  policymaking decisions, but instead  required that the          auditor investigate  the financial records of  a municipality and          make  a report to  the Mayor  and Comptroller.   Id. at  18.  The                                                           ___          internal  auditor had no authority to correct the mistakes he was          charged to investigate.  Id.                                   ___                    As in  Cordero, the position at issue here is that of a                           _______          mere  "technocrat."  Id.; see also De Choudens v. Government Dev.                               ___  ________ ___________    _______________          Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir. 1986).  A Hearing          ___________________          Examiner is charged only  with investigating and holding hearings          into   possible  irregularities   in  municipal   functions,  and          reporting  them to the  Commissioner, in whom  authority rests to          take action.  Considering  these five enumerated duties, we  find          that they require  technical and professional  skills and do  not          provide  discretion  to  formulate  or  implement  policy.    See                                                                        ___                                         -12-          generally De Choudens, 801 F.2d at 9-10.  Accordingly,  political          _________ ___________          affiliation is not an appropriate requirement for the position.                    Moreover,  a review  of the  indicia we  have typically          considered material to this determination further suggests that a          Hearing Examiner is not  a policymaker.  With regard  to relative          pay, the salary for Hearing Examiner is the fifth  highest of the          13  levels on the OCMA pay scale, not including the Commissioner.          The documents submitted  on summary judgment do not  indicate the          number of employees filling each level of the scale.  Thus, while          the position  is ranked  fifth,  a significant  number of  actual          employees  may be paid more than the Hearing Examiner.  Moreover,          the  trust  classification  is  fifth-tier,  among  eleven  trust          positions in  the OCMA.   Although  the position  is of a  quasi-          adjudicative  nature, it  does not  require that  an officeholder          possess  a  law  degree.   The  position  carries  no supervisory          responsibilities.     The  duties  neither  require   any  public          appearances nor  grant authority  to speak on  the Commissioner's          behalf.   Contact with  elected officials  appears to  take place          only in  the context of a hearing, and in no other context does a          Hearing   Examiner  act   as   a  public   spokesperson  for   or          representative of her agency.                    Appellees   attempt  to   maneuver   around   the   job          description's  inherent duties by  pointing to item  number 61 on          the  job  description, claiming  that  the  possibility of  being                                        ____________________          1   Item number 6  states that the  office holder "[c]arries  out          other assigned duties."                                         -13-          assigned  related tasks  transforms  the position  into one  with          broad  powers.    The  summary  judgment  record  indicates  that          appellees  presented  two  exhibits,   in  addition  to  the  job          description, to  support this  contention.   The first of  these,          Exhibit VI, appears to be a listing of correspondence received by          the  Office  of  Legal  Affairs  containing  inquiries  regarding          various  municipal concerns.   These  inquiries were  assigned to          Rold n for resolution.  The  last date on which any of  the tasks          on this list were assigned to  Rold n is September 24, 1992.  The          other exhibit, Exhibit VII,  suggests that, as of July  28, 1992,          Rold n was assigned by Cerezo's predecessor to monitor the status          of amendments to the Autonomous Municipalities Act.  We note that          appellees did  not argue  to the  district court,  as they do  on          appeal,  that the duties  set forth in  Exhibits VI  and VII were          assigned as "other [] related duties" pursuant to item six of the          job  description, and thus fall  within the scope  of the court's          analysis  of  "inherent  duties."     Nevertheless,  because  the          district court took into  consideration the documents in Exhibits          VI and VII, we address appellees' contention here.                    In reviewing the nature of the tasks assigned to Rold n          by Cerezo's  predecessor,  it  is  apparent that  they  were  not          related to  the inherent  duties of  Hearing Examiner.   Instead,          these exhibits are of the very type we have consistently held are          not  to be  considered in  the process  of determining  whether a          position  entails  policymaking.   We look  only to  the inherent          duties  of  the position  under review  and  do not  consider the                                         -14-          actual  tasks performed by a  present or past  officeholder.  See                                                                        ___          O'Connor, 994 F.2d at 911; Jim nez Fuentes, 807 F.2d at 242.  The          ________                   _______________          inherent   duties  of   a   Hearing  Examiner   relate  only   to          investigating and administering hearings regarding irregularities          and  do  not  encompass  providing legal  advice,  or  analyzing,          developing, or  advising the  Commissioner on proposed  or actual          legislation.   We  certainly cannot  allow a  catch-all provision          such as that found in  Item 6 to convert all assigned  tasks into                                                   ___          inherent  duties.   We  conclude that  the  duties set  forth  in          Exhibits VI and  VII, which  were assigned to  Rold n during  her          tenure  as a  Hearing  Examiner, are  not  tasks related  to  her          position and thus cannot be properly characterized as assigned in          accordance  with item number 6.  They are actual duties performed          by a past officeholder, and not inherent duties.                    We  recognize that,  in past  cases, we have  granted a          modicum of deference to the Puerto Rico legislature's designation          of  a particular  position as  "trust"  or "confidential."   See,                                                                       ___          e.g.,   Figueroa-Rodr guez v.  L pez-Rivera, 878 F.2d  1478, 1481          ____    __________________     ____________          (1st Cir. 1989); Juarbe-Angueira  v. Arias, 831 F.2d 11,  14 (1st                           _______________     _____          Cir. 1987); Raffucci Alvarado, 816  F.2d at 822; Jim nez Fuentes,                      _________________                    _______________          807 F.2d at 246.  We accorded deference because                    (a)  Puerto Rico's  own civil  service system                    permits  a fairly  small number  of positions                    (no more than 25 per agency) to be classified                    as confidential (i.e., potentially subject to                                     ____                    politically-based discharge),  P.R. Laws Ann.                    tit. 3,    1351 (1978 & Supp.  1987); (b) the                    personnel law bases  the classification of  a                    confidential position on criteria  similar to                    those   enumerated   in  Elrod   and  Branti,                                             _____        ______                    (whether  the  job  involves "formulation  of                                         -15-                    public  policy," P.R.  Laws  Ann.  tit. 3,                       1350,  or  "direct  service  to  the  head or                    subhead of  the agency  which require  a high                    degree  of  personal  trust," P.R.  Personnel                    Bylaws:     Areas  Essential  to   the  Merit                    Principle,      5.2  (1976));   and  (c)  the                    legislators   and  administrators   are  more                    familiar  with the  issues and  subjects that                    potentially may  affix a particular  job at a                    particular time with a "political charge."          Figueroa-Rodr guez, 878  F.2d at 1481.   Nevertheless, we decline          __________________          to  grant deference to the  designation of Hearing  Examiner as a          "confidential" position  here, when the plan  that designated the          position   as  confidential  took  into  consideration  the  five          specific  duties discussed  above and  merely suggested  that the          Hearing Examiner "has broad  and considerable freedom to exercise          initiative  and his own judgment in the performance of his work."          See Def. Exh. IV to Motion for Summary Judgment.  We have already          ___          considered  the job duties of  the position above  and found them          insufficient to indicate that the position entails  policymaking.          Having  "freedom  to  exercise .  .  .  [one's]  judgment in  the          performance  of  [one's] work"  does  not go  beyond  our earlier          consideration  of the  position and  does not  support appellees'          contention  that   the  position   involves  the  use   of  broad          discretion.  In addition,  that the same plan labels  drivers and          at  least  two tiers  of  secretaries  as  trust or  confidential          employees suggests that these categories are overly broad.                    Based on the summary judgment record, we hold that  the          position  of  Hearing  Examiner  is   not  one  for  which  party          affiliation is an appropriate requirement.          II.       Qualified Immunity          II.       Qualified Immunity                                         -16-                    In their request for  summary judgment below, appellees          contended,  as they  do  on appeal,  that  they are  entitled  to          summary  judgment  on  the  basis  of  qualified  immunity.   The          doctrine  of  qualified  immunity  protects  defendants in  their          individual  capacities   from   liability  for   money   damages.          "Qualified  immunity  shields  government   officials  performing          discretionary functions  from civil  liability for money  damages          when  their  conduct  does   not  violate  'clearly  established'          statutory  authority   or  constitutional   rights  of   which  a          reasonable person would have known."  Nereida-Gonz lez v. Tirado-                                                ________________    _______          Delgado, 990  F.2d 701, 704 (1st  Cir. 1993).  In  the context of          _______          political discrimination charges,  "a defendant enjoys 'qualified          immunity'  as long as the  job in question 'potentially concerned          matters  of partisan political  interest and involved  at least a          modicum  of policymaking  responsibility, access  to confidential          information,  or  official communication.'"   Figueroa-Rodr guez,                                                        __________________          878 F.2d at 1480  (quoting M ndez-Palou v. Rohena-Betancourt, 813                                     ____________    _________________          F.2d 1255, 1259 (1st Cir. 1987)).                    In  earlier  political discrimination  cases,  we found          defendants entitled to qualified immunity because their allegedly          unconstitutional actions  took place prior to  the development of          clearly established  law  in  this area.    See,  e.g.,  Nereida-                                                      ___   ____   ________          Gonz lez, 990 F.2d at 704 (granting defendants qualified immunity          ________          because  prior to  1989,  a period  that encompassed  defendants'          allegedly  unconstitutional demotions and  transfers, it  was not          clear  whether Elrod and Branti applied); Valiente v. Rivera, 966                         _____     ______           ________    ______                                         -17-          F.2d 21, 23 (1st  Cir. 1992) (same); N  ez-Soto v.  Alvarado, 918                                               __________     ________          F.2d  1029 (1st  Cir.  1990)  (state  of  the  law  in  political          discrimination  cases  was  not  clearly  established  in  1985);          Figueroa-Rodr guez,  863 F.2d at  1040 (recognizing that although          __________________          Elrod and Branti clearly prohibited discharge of non-policymaking          _____     ______          state  employees for  partisan reasons,  this circuit had  yet to          delineate the scope of  positions for which political affiliation          was  appropriate); De Abadia, 792 F.2d at 1190 (noting that Elrod                             _________                                _____          and Branti marked a dramatic departure from prior law and further              ______          observing  that an  "official cannot be  expected to  predict the          future  course of constitutional  law" (internal  quotation marks          omitted)).  This case is different.  Appellees  discharged Rold n          on May  6, 1994.   The  contours of  the law regarding  discharge          based  on party affiliation grew  much clearer in  the late 1980s          and early 1990s.  By 1993,  this circuit had decided two waves of          political discrimination cases.  At the time appellees discharged          Rold n, this circuit's law regarding discharge based on political          discrimination was indeed clearly established.                    To be sure,  the law  may still be  blurred around  the          edges.    But this  is  not a  borderline  case.   In determining          entitlement to  the qualified  immunity defense in  the political          discrimination  context, we look only to the inherent duties of a          position and  ask whether the defendant  could reasonably believe          the  position in  question was  one that  "'potentially concerned          matters of partisan  political interest and  involved at least  a          modicum  of policymaking  responsibility, access  to confidential                                         -18-          information,  or  official communication.'"   Figueroa-Rodr guez,                                                        __________________          878 F.2d at 1480.  We have already found that the inherent duties          of   the   position   were   limited   to   discrete,   technical          responsibilities that  did  not involve  policymaking  or  policy          implementation.     We  do  not  believe   that  appellees  could          reasonably believe that the five specified duties of the position          in any way provided Rold n with discretion to devise or implement          policy.  Assigning  her with  a duty related  to those  functions                                               _______          would not expand her discretion in the position.                    As discussed above,  the additional  tasks assigned  to          Rold n,  on  which  appellees  rely, were  not  inherent  to  the          position  nor can they be bootstrapped  into the position through          the device  of item  number 6.   That  the defendants might  have          considered  the additional duties  assigned to Rold n  as part of          the duties inherent in  the position of Hearing Examiner  appears          unreasonable based on the  record at the summary  judgment stage.          We  note that  should  defendants muster  convincing evidence  at          trial to show  that the  function of a  typical Hearing  Examiner                                                  _______          includes following the status  of legislation and providing legal          assistance directly  to the municipalities and  that the position          has  traditionally been  perceived as  encompassing  these tasks,          they may or may not be entitled to qualified immunity.   They are          not, however, entitled to  summary judgment on qualified immunity          grounds.                    Appellees suggest that  one of the  cases on which  the          district  court relied, Alfaro de Quevedo v. De Jes s Schuck, 556                                  _________________    _______________                                         -19-          F.2d 591 (1st Cir.  1977), is analogous  to the instant case  and          warrants the opposite conclusion.  The district court also relied          on  another case that  may seem to involve  a position similar to          that  of a Hearing Examiner.  See Gonz lez-Gonz lez v. Zayas, 878                                        ___ _________________    _____          F.2d  1478  (1st  Cir.   1989)  (en  banc).    Those   cases  are          distinguishable on two grounds.                    First, the  positions at issue in  those cases involved          considerable  discretion  to  make  and implement  policy.    The          position  at  issue in  Alfaro de  Quevedo,  the Director  of the                                  __________________          Office   of   Criminal  Justice,   required,   inter   alia,  the                                                         ____________          officeholder to advise  "the Secretary of Justice  on all pending          legislation affecting  crimes and  law enforcement," id.  at 593,                                                               ___          draw up proposed legislation, prepare an annual budget, supervise          the  staff of  the  Office of  Criminal  Justice, and  prepare  a          Proposed  Code of  Criminal Justice  for Puerto Rico.   Id.   The                                                                  ___          position "gave [the officeholder] a broad discretion to carry out          hazily  defined purposes and to render advice to the Secretary in          an area  that is far  from noncontroversial."   Id. at 593.   The                                                          ___          position at  issue in Gonz lez-Gonz lez was that  of the Director                                _________________          of the Board  of Appeals  of Puerto Rico's  Department of  Social          Services.  See Gonz lez-Gonz lez, 878 F.2d at 1482.  The position                     ___ _________________          duties  were, among others, to  supervise 31 employees who worked          for  the  Board,  to  establish procedures  to  hold  hearings on          appeals, to analyze and  make final decisions on all  appeals, to          prepare  an annual budget, and  to recommend rule  changes to the          Directors  of  the various  Social Services  programs.   Id.   In                                                                   ___                                         -20-          addition to any adjudicatory  tasks, this position entailed broad          administrative,  policymaking, and  supervisory duties.   Id.  at                                                                    ___          1483.   As our analysis indicates,  the broad discretion inherent          in these duties is not present in the case before us.                    Second,  Gonz lez-Gonz lez was dismissed  from his post          in  1985 and  Alfaro  de Quevedo  resigned  in  1973.   When  the          defendants in those cases ousted the plaintiffs, the state of the          law  with respect to political  firings was poorly  defined.  The          state of the  law at the time  of the discharge in  this case had          developed  markedly since  the  two opinions  relied upon  below.          Because  we must  consider whether  appellees violated  a clearly          established  constitutional right  of  which a  reasonable person          would  have been aware, at the time the adverse employment action          was taken, the outcome of  these two cases is not controlling  on          the issue of qualified immunity.                    We also recognize that in prior  cases, we have granted          qualified immunity partially because a defendant might mistakenly          rely on the position's status  as "confidential" or "trust" under          the Puerto Rico Public Service Personnel Act, P.R. Laws Ann. tit.          3,   1301  et seq.   See, e.g., Figueroa-Rodr guez,  878 F.2d  at                     _______   ___  ____  __________________          1481  ("[I]n the context of qualified immunity, the fact that the          Commonwealth  government had  classified  a particular  job as  a          trust or confidence position, makes it more difficult to say that          a  Puerto Rican official should have known that the law 'clearly'          forbids dismissal.");  Juarbe-Angueira,  831 F.2d  at 14  (same);                                 _______________          Raffucci  Alvarado,  816 F.2d  at 821-22  (same).   Based  on our          __________________                                         -21-          discussion of the manner  in which this and other  OCMA positions          were classified,  we do  not believe  that defendants  could have          reasonably relied  on this designation in  determining that their          discharge of Rold n  for political reasons was consonant with her          constitutional rights.                                      CONCLUSION                                      CONCLUSION                    For the foregoing reasons, we reverse and remand to the                                                  reverse     remand                                                  _______     ______          district court for proceedings consistent with this opinion.                                         -22-
