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Indeed, Testa may not be able to do so, without undermining his own argument that the plaintiffs' positions are indefinite enough that he may safely redefine them without running afoul of state law. We recognize that this court stated in Faughender that in determining whether a particular position falls into the Branti exception the focus must be on the inherent functions of the position.

Faughender, F. Faughender was not a qualified immunity case, however, and in the situation where the inherent duties of the plaintiffs' positions are not apparent and the facts are not yet fully developed, it is not possible for us to decide, when reviewing in an interlocutory posture the denial of a motion for summary judgment, whether a defendant should be granted qualified immunity with respect to those positions. It will frequently be possible to find that a governmental defendant who takes an adverse action against a public employee is entitled to qualified immunity because it will be undisputed that the position falls into the category of positions akin to cabinet secretaries, or akin to confidential assistants to cabinet secretaries.

When, however, a governmental employee may be nothing more than a supervisor with a glorified title who is simply performing functions over which he or she has no discretion, or no discretion of political significance, then this court cannot grant qualified immunity to a governmental defendant with respect to adverse employment actions taken against such lower-level public employees in an interlocutory appeal such as this. In these circumstances, resolution of the qualified immunity issue will need to await further proceedings.

In Kennedy v. City of Cleveland, F. Hanton v. Kennedy, U.

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Recently, our ruling in this case was implicitly affirmed by the Supreme Court in Behrens, U. Following up on Kennedy, our court held in Sinclair v. Schriber, F. Beneficial Indus. Loan Corp. We believe that the instant case is distinguishable from Sinclair because the district court here did not deny Testa's motion for summary judgment in such an open-ended fashion.

Even if Sinclair were not distinguishable, however, we would leave open the possibility of a subsequent summary judgment motion on grounds of qualified immunity by Testa. See Behrens, U.


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See also Sinclair, F. The Sinclair court's concern to avoid successive interlocutory appeals of renewed motions for summary judgment on the ground of qualified immunity can be accommodated without creating a blanket rule that prevents the consideration of such motions under all circumstances. United States, U. In this case, with further legal development on the question of the plaintiffs' job responsibilities under state and county law and to a lesser extent further factual clarification, we do not necessarily think that another motion for summary judgment on grounds would be abusive.

Of course, with enough legal and factual development, the issue of qualified immunity tends to merge with the merits of the plaintiffs' claim, possibly obviating the need for the district court to make additional rulings on the issue of qualified immunity in the future. Whether Testa is entitled to qualified immunity with respect to some, all, or none of these positions must await further proceedings.

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Deciding if Testa was properly denied summary judgment on grounds of qualified immunity with respect to the other four positions involved in this case is not as simply resolved, however. Whether Testa is entitled to qualified immunity with respect to staff attorney McCloud depends on what McCloud's job entailed. We cannot answer these questions on the basis of the barren record before us because neither the plaintiffs nor the defendant have cited to us any helpful state or county law. After trial, the facts about the practices, or analysis of the legal duties, of McCloud's position will establish whether his position is more like that in Branti or more like those in Williams or Marlinga.

Or it may turn out that McCloud's position is not subsumed under the principles analyzed in any of these cases, and therefore, given the current state of the law's development in this area, the position should trigger qualified immunity for Testa. With respect to the position of Giammarco, consumer services division administrator and lobbyist, we would probably not hesitate to grant Testa qualified immunity if it were undisputed that Giammarco was the exclusive lobbyist for the County Auditor's office and that she spent most of her time in this capacity.

Her position would thus fall into category three.

However, we cannot say this is the case on the basis of the record in front of us. The position of the chief lobbyist almost certainly falls into the Branti exception, but the vast majority of staff lobbyists may not. Stott v. Martin, F.

Moreover, here, Giammarco was not solely a lobbyist, but also the consumer services division administrator. The district court will need to consider the extent and nature of Giammarco's lobbying activities in ultimately deciding whether Testa was entitled to qualified immunity with respect to her position. The district court should also consider whether it would have been feasible for Testa to have taken the less drastic option of simply terminating Giammarco's duties as County Auditor's office lobbyist, while allowing her to stay on as consumer services division administrator.

For instance, Testa transferred the functions of Cohen's and Hysell's positions to other County Auditor's office employees. It may become evident after fuller factual development that Giammarco's lobbying role could have been easily shifted to another employee in the County Auditor's office, or it might turn out that Giammarco's lobbying and division administrative duties were practically inseparable.

If Giammarco's roles were separable, Testa may have exceeded the scope of the Branti exception by terminating Giammarco completely, rather than seeing if it was feasible to keep her, performing only her constitutionally protected job function. The analysis of Hysell's position as township liaison is similar. On the one hand, Hysell inventoried lock boxes for estate tax purposes-a function clearly not within any of the four categories we set out above comprising the Branti exception.

This function may fall into category three of the Branti exception. Finally, Tilson's position as administrative assistant to the category two Deputy County Auditor unquestionably places her within category three under Faughender. We have already held that the position of a mayor's secretary falls within the Branti exception. Both the plaintiffs and Testa agreed that Everhart's position as Deputy Auditor was a position for which political affiliation was an appropriate requirement, and hence Faughender requires that Testa receive qualified immunity in relation to his termination of Tilson.

Uncertainty about the actual duties of these positions, when their inherent nature is not apparent no parties to this suit have cited any helpful state or county law defining the duties of the positions , precludes us from reversing the district court's determination. Our current disposition of this case does not prevent the district court from granting qualified immunity to Testa with respect to any of these positions. The district court did err, however, in failing to recognize that Tilson's position as a secretary to the category two Deputy County Auditor, which the parties agreed was a position for which political affiliation was an appropriate requirement, fell into category three, because Tilson controlled the lines of communication to the Deputy County Auditor.

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Thus, Testa was entitled to qualified immunity with respect to his termination of Tilson. In ultimately determining whether Testa is entitled to qualified immunity with respect to these positions as the facts become clearer and the relevant law is researched, and in determining whether any of the plaintiffs' positions actually fall into the Branti exception, the district court is to take guidance from the analysis in this opinion, particularly in terms of the four categories established above. It is also the law of the case that Testa's argument that he is entitled to qualified immunity because the plaintiffs were affiliated with a non-ideological faction within the same political party has been rejected.

Testa's notice of appeal indicates that he is appealing in both his official and individual capacities, but qualified immunity applies only to an official's liability in his individual capacity. Kentucky v.

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Graham, U. Therefore, Testa can be appealing the district court's order only insofar as it refused to grant him qualified immunity in his individual capacity. The Franklin County Auditor is the county's chief fiscal officer, its tax assessor, and its disbursement agent for all expenses and costs. The only evidence of the political ideologies of any of the parties to this suit comes from Plaintiff Elsa C.

She indicated that she knew Joseph Testa opposed legalized abortion, but she did not state that she disagreed with Testa on this issue. The plaintiffs attempt to argue that Testa admitted that political affiliation has nothing to do with their job responsibilities. In other words, the apparent contradiction between Testa's arguing that he dismissed the plaintiffs because they occupied policymaking or confidential positions and his agreement that political activity would be irrelevant to performance in those same positions can be reconciled by noting that a person could remain politically inactive or neutral and still do a good job in the positions.

According to Testa, this does not mean, however, that political affiliation with an opponent of Testa's would not be an obstacle to satisfactory performance in such positions.

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Testa argues that he was ignorant of the party affiliation of Devore, Skaates, Cohen, and Morgan, but this fact, even if true, is irrelevant to this case, as the salient political affiliation is an affiliation either personally with McNeal, or more generally with the Tracy faction of the Franklin County Republican Party. Everhart was also fired by Testa, but decided not to contest his dismissal, perhaps because he recognized that his political affiliation would have been held to be an appropriate requirement for the performance of his job as Chief Deputy Auditor.

See Gitlow v. New York, U. Rice had the effect of eliminating the basis for one criticism of Sixth Circuit First Amendment patronage jurisprudence.


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In his dissent from two very recent Supreme Court decisions, Justice Scalia has argued that the application of strict scrutiny in the patronage context has been overturned by one of those cases.