The Spoils System in Check - Public Employees' Right to Political Affiliation & (and) the Balkanized Policymaking Exception to Sec. 1983 Liability for Wrongful Termination
![handle is hein.journals/cdozo30 and id is 2307 raw text is: THE SPOILS SYSTEM IN CHECK? PUBLIC
EMPLOYEES' RIGHT TO POLITICAL AFFILIATION
& THE BALKANIZED POLICYMAKING EXCEPTION
TO § 1983 LIABILITY FOR WRONGFUL
TERMINATION
Christopher V. Fenlon*
INTRODUCTION
Today, most state and local government employees are protected
from dismissal for their political affiliation; employees found to be
policymakers, however, are excepted from this protection. Thus,
while a newly elected or appointed public official cannot replace every
employee under his control with party loyalists, he may legally replace
policymaking employees with his people.'
Historically, employees not protected by the civil service laws-
exempt employees-were also vulnerable to political discrimination.2
A government job was not viewed as a right but as a privilege; thus,
employees had no property interest in their jobs, and no standing to
challenge their dismissal. Moreover, political patronage-particularly
the use of jobs to compensate political loyalists-has played a
* Articles Editor, Cardozo Law Review; J.D. Candidate, Benjamin N. Cardozo School of
Law (2009); B.A., Saint Michael's College. I thank Professor Arthur Jacobson and my
colleagues Jennifer Sapp and Carrie VanFleet for their assistance in developing this Note. I thank
my wife Judith for her patience and support.
I Private employees, not under contract with their employers, operate under the traditional
at will employment scheme, where the employer may terminate the relationship at any time
without cause, subject to a few exceptions such as discrimination based upon race or gender, or if
the court finds the termination to be against public policy. The majority of public employees,
on the other hand, are protected by state and federal civil service laws which limit the grounds
upon which employees may be terminated-including protections against discrimination based on
political beliefs or associations-and establish procedural protections for employees subject to
dismissal. LEX K. LARSON, 10 EMPLOYMENT DISCRIMINATION § 171.08[3] (2d ed. 2008)
(analyzing potential extension of political discrimination doctrine to private employment through
the public policy exception to employment at will).
2 Exempt employees typically hold management, advisory, or confidential positions in
bureaucratic agencies, but the category can also include deputy sheriffs, a title which includes a
broad range of job responsibilities, from clerical to policy-setting officers. For a review of
litigation involving a mid-level manager, see infra note 16. For a discussion of the position of
deputy sheriff, see infra Part II.A.
2295](ViewImageLocal?handle=hein.journals/cdozo30&div=63&collection=&method=preview&ext=.png&size=3)
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