Kenneth H. Fisher
Fisher & Young
Huntington, West Virginia
Counsel for Appellee
Anthony G. Halkias
Frank S. Curia
Assistant Attorney General
Charleston, West Virginia
Counsel for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
NEELY, J., dissents and reserves the right to file a dissenting Opinion.
1. The position of County Maintenance Superintendent does not require its holder to share the same political affiliation or association as the governor to effectively perform the duties attendant to such position.
2. West Virginia Code § 29-6-4(d) (Supp. 1992) is
unconstitutional insofar as it applies to the position of County
The West Virginia Department of Highways ("Department")
appeals from a June 28, 1991, order of the Circuit Court of Wayne
County declaring West Virginia Code § 29-6-4(d) (Supp. 1992)
unconstitutional and ordering that Donald Akers, Appellee, be
reinstated to his former position as Wayne County Maintenance
Superintendent (hereinafter sometimes referred to as "CMS" or
"Superintendent"). After examining the applicable statute and
precedent, we concur with the decision of the trial court that West
Virginia Code § 29-6-4(d) is unconstitutional insofar as it applies
to the position of CMS. Accordingly, this Court affirms the
decision of the circuit court.
Mr. Akers was appointed to the Wayne County Superintendent's
position in June 1985 during the administration of Governor Arch A.
Moore, Jr. The parties have stipulated that Mr. Akers' employment
as the CMS resulted from his political affiliation with the
Republican party.See footnote 1 Mr. Akers testified that as CMS he had the
responsibility of maintaining 860 miles of roads in Wayne County
and that he supervised 50 department employees, 20 to 25 Community
Work Employment Program employees, and work release inmates.
During the hearings below, much of the testimony centered on
the job duties and responsibilities associated with the position of
CMS. The Department offered witnesses to support its contention
that the Superintendent's position is that of a "policymaker" and
accordingly requires the holder to share the same political
affiliation as the governor of the State. Appellee, on the other
hand, offered evidence that he was merely an employee and that his
discretion was limited as he was required to seek the approval of
the District Engineer with regard to a proposed weekly work
During the 1989 legislative session, a bill was passed
amending West Virginia Code § 29-6-4 in part by adding a new
subsection d. That subsection provides that:
The Legislature finds that the holding of
political beliefs and party commitments
consistent or compatible with those of the
governor contributes in an essential way to
the effective performance of and is an
appropriate requirement for occupying certain
offices or positions in state government, such
as the secretaries of departments and the
employees within their offices, the heads of
agencies appointed by the governor and, for
each such head of agency, a private secretary
and one principal assistant or deputy, all
employees of the office of the governor
including all employees assigned to the
executive mansion, as well as any persons
appointed by the governor to fill policy-
making positions and county road supervisors
or their successors, in that such offices or
positions are confidential in character and/or
require their holders to act as advisors to
the governor or his appointees, to formulate
and implement the policies and goals of the
governor or his appointees, or to help the
governor or his appointees communicate with
and explain their policies and views to the
public, the Legislature and the press.
West Virginia Code § 29-6-4(d) (eff. July 1, 1989). In November
1989, the Democratic candidate for governor, Gaston Caperton, won
the election over the incumbent governor, Arch A. Moore, Jr. When
Gaston Caperton took office as governor in January 1989, he
appointed Kenneth M. Dunn as Secretary of the West Virginia
Department of Transportation.
On July 20, 1989, Mr. Dunn issued a letter to the thirty-five
SuperintendentsSee footnote 2 which quoted newly-enacted West Virginia Code §
29-6-4(d) and advised the incumbent Superintendents that they had
the option of transferring to "a position of Area Maintenance
Manager in the local District Office" or remaining in their
respective CMS position until a final determination was made
regarding "the future characteristics and requirements of the
County Maintenance Superintendent position." Mr. Akers responded
to his letter from Mr. Dunn by issuing a reply letter dated July
31, 1989, rejecting the transfer and stating that
[i]n my opinion, the above referenced
Code section [W. Va. Code § 29-6-4(d)]
attempts to define the position of County
Maintenance Superintendent as a policymaking
position, which it is not and has never been
during the periods of time that I have
occupied the position. . . . It is my opinion
that the above referenced Code section
constituting a legislative finding that the
County Maintenance Superintendent should have
the same political affiliation as the Governor
is an unconstitutional infringement by the
Legislature upon the Executive Branch and is
an attempt by the Legislature to get the
Governor to return to politics of the past
where County Maintenance Superintendents were
fired with each change of administration.
By certified letter dated September 11, 1989, Mr. Akers
was transferred effective October 1, 1989, from his position as
Wayne County Maintenance Superintendent to Area Maintenance Manager
position at the District Two Headquarters in Huntington, West
Virginia. Although Appellee had no specific duties assigned to him
in his new position, Mr. Akers continued to receive the same salary
as he had received while holding the position of CMS. A Democrat
was appointed to replace Mr. Akers as the new Wayne County
On September 21, 1989, Mr. Akers filed a grievance pursuant to
West Virginia Code §§ 29-6A-1 to 29-6A-11 (Supp. 1992), alleging
that his transfer from CMS to the position of Area Maintenance
Manager "was taken solely as a result of my political beliefs and
party affiliations." At the fourth and final level of the
grievance procedure, the hearing examiner held that "[t]he West
Virginia Education and State Employees Grievance Board is not
empowered to determine the constitutionality of statutes" and that
"W. Va. Code § 29-6-4(d) unambiguously allowed Secretary Dunn to
remove Grievant from the County Supervisor position because his
party commitments were not consistent with that of Governor
Caperton and therefore Grievant did not establish his transfer was
Mr. Akers appealed the denial of his grievance to the Circuit
Court of Wayne County pursuant to West Virginia Code § 29-6A-7.
The appeal was heard by Judge Dan O'Hanlon of the Cabell County
Circuit Court upon the recusal of Judge Robert G. Chafin of the
Wayne County Circuit Court. In its final order, the Circuit Court
4. Plaintiff/Petitioner's transfer was
done solely because of his membership in the
Republican political party;
. . .
6. The position of County Maintenance Superintendent (or County Road Supervisor, as the position is called in Code Section 29-6-4[d]) is not a policymaking position, is not confidential in character, does not require the employee holding such position to formulate or implement the policies and goals of the Governor or his appointees, does not communicate with or explain the Governor's policies or views to the public, legislature or the press, and the patronage transfer of the individual holding such position does not further a vital governmental interest justifying restraints upon the person who holds such position freedom of speech rights under the First and Fourteenth Amendments to the United States Constitution, nor is political affiliation or association a necessary requirement for the effective performance of the duties of the position of the County Maintenance Superintendent;
7. The legislature enacted West Virginia Code § 29-6-4(d) insofar as the same applies to County Maintenance Superintendents solely as a ruse or ploy to enable the Governor to terminate or transfer County Maintenance Superintendents who were Republican office holdovers in contravention of the rights set forth in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Rutan v. Republican Party of Illinois, 497 U.S. , 110 S.Ct. , 111 L.Ed.2d 52 (1990); . . . .
Following these findings, the circuit court ruled that West Virginia Code § 29-6-4(d) was unconstitutional, ordered that Mr. Akers be reinstated to his position as CMS, and awarded him back pay, if any, attorney's fees, and costs. It is from this final order of the circuit court that the Department now appeals.
Historically, Superintendents have been replaced whenever a
new administration takes office. When former Governor Arch A.
Moore, Jr., took office in 1985, all the incumbent Superintendents
were replaced with individuals whose political affiliation was
Republican. Appellee was one of those Republicans who gained a CMS
position because of political partisanship in 1985.
Superintendents are not afforded the protection of civil service
statutes.See footnote 3 Accordingly, the numerous CMS positions throughout the
State historically have been filled at least partially on the basis
of political patronage.
We recently summarized the United States Supreme Court decisions on political patronage in Neely v. Mangum, 183 W. Va. 393, 396 S.E.2d 160 (1990), by noting that
[t]he constitutionality of dismissing
public employees for partisan reasons was
first addressed in Elrod v. Burns, 427 U.S.
347 (1976), a case in which Republican non-civil service Sheriff's office employees were
discharged when a Democratic sheriff was
elected. The United States Supreme Court
ruled that 'the practice of patronage
dismissals is unconstitutional under the First
and Fourteenth Amendments . . . .' Id. at
373, 96 S. Ct. at 2689. There is one
exception to the Elrod ruling against
patronage dismissals. In the interest of
promoting 'government efficiency and
effectiveness' and implementing policies
sanctioned by the electorate, an elected
official is permitted to discharge those
individuals in policymaking positions. 427
U.S. at 372, 96 S. Ct. at 2689. This
exception was narrowed in Branti v. Finkel,
445 U.S. 507, 100 S. Ct. 1287, 63 L.Ed.2d 574
(1980), where the Supreme Court explained 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,
100 S. Ct. at 1295. A further narrowing of
the policymaker exception may have been made
in Rutan v. Republican Party of Illinois,
 U.S. , 110 S. Ct. 2729, 111 L.Ed.2d
52 (1990) where the Supreme Court appears to
suggest that only 'high-level employees' can
come within the protected purview of the
Elrod/Branti exception while holding that
promotions, transfers, and recalls after
layoffs based on political affiliation or
support 'are an impermissible infringement on
the First Amendment rights of public
employees.' See Rutan,  U.S. at ___, 110
S.Ct. at 2736.
183 W. Va. at 396-97, 396 S.E.2d at 163-64; see also Adkins v.
Miller, ___ W. Va. ___, 421 S.E.2d 682 (1992). (recognizing right
of governmental employees to be free from employment decisions
based solely on political grounds under certain circumstances).
The Elrod and Branti decisions, as well as their progeny,
stand for the proposition that "political affiliation is an
appropriate requirement when there is a rational connection between
shared ideology and job performance. . . ." Savage v. Gorski, 850
F.2d 64, 68 (2nd Cir. 1988). As an aid to determining whether
shared political ideology is a legitimate prerequisite for holding
a particular government position, this Court, like the Fourth
Circuit Court of Appeals in Stott v. Haworth, 916 F.2d 134 (4th
Cir. 1990), adopts the following two-part test created by the First
Circuit Court of Appeals for resolving cases that involve patronage
dismissals:See footnote 4
A threshold inquiry, which derives from
Branti, involves examining whether the
position at issue, no matter how policy-influencing or confidential it may be, relates
to 'partisan political interests . . . [or]
concerns.' 445 U.S. at 519, 100 S.Ct. at
1295. That is, does the position involve
government decisionmaking on issues where
there is room for political disagreement on
goals or their implementation? Otherwise
stated, do party goals or programs affect the
direction, pace, or quality of governance?
If this first inquiry is satisfied, the next step is to examine the particular responsibilities of the position to determine whether it resembles 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. We would note that in conducting this inquiry, courts focus on the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office.
Stott, 916 F.2d at 141-42 (quoting Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986), cert. denied, 481 U.S. 1014 (1987)).
The United States Supreme Court in Rutan held that:
our conclusions in Elrod, supra, and Branti, supra, are equally applicable to the patronage practices at issue here [promotions, transfers, and recalls]. A government's interest in securing effective employees can be met by discharging, demoting or transferring staffmembers 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.
497 U.S. at ___, 110 S. Ct. at 2737. Given the holding in Rutan, there is no question that employment decisions to transfer public employees that are based on party affiliation and support constitute "an impermissible infringement on the First Amendment rights of public employees." 497 U.S. at ___, 110 S. Ct. at 2737. The only exception to this ruling are employment changes effectuated for the purpose of enabling the hiring of "certain high-level employees on the basis of their political views" necessary to "loyally implement . . . [an administration's] policies." Id. Accordingly, unless the CMS is a high-level position which properly requires shared political affiliation or philosophy for effective job performance, Appellee's transfer to the position of Area Maintenance Manager was an unconstitutional infringement on his First Amendment rights of belief and association.
The Department applies the two-part test adopted in Stott for
identifying those positions for which party affiliation is
appropriately a prerequisite and concludes that the position of CMS
necessarily requires similar political ideology with that of the
governor "because the position involves both political interest and
concern." See 916 F.2d at 141-42. To bolster this conclusion, the
Department states that "the maintenance of local and county roads
is an issue on which state government and its governor is judged["]
and that road maintenance "has, and will continue to be, a
political issue in the gubernatorial campaigns." Having satisfied
the first part of the First Circuit inquiry, the Department
proceeds to address the second part of the test which requires an
examination of "the particular responsibilities of the position to
determine whether it resembles 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." Stott, 916 F.2d at 142. The Department
claims that the second aspect of the test is easily met because the
CMS was a communicator, the primary implementer of the governor's
policies at the county level, and a policymaker. See id.
Appellee qualified as a "communicator," according to the
Department, because he was the "front line man and representative
of the Department in Wayne County" and as such was required to
respond to the maintenance complaints of both county employees and
citizens. The Department relies on witness testimony that Mr.
Akers had the responsibility for determining which Wayne County
roads would be maintained to support its position that Appellee was
the primary implementer of the governor's policies at the local
level. Concerning the policymaker element of the test, the
Department conclusorily decides that the CMS position is a
policymaking position by referring back to the Elrod definition of
policymaker as "[a]n employee with responsibilities that are not
well defined or are of a broad scope. . . ." 427 U.S. at 368.
A review of the evidence taken in the administrative hearings
below refutes the Department's position that the CMS has "almost
complete discretion and control over the routine maintenance
operations performed in the county by his organization." The job
description on record with the Department at all times pertinent to
this matter provides that the Superintendent "plans and directs all
routine county maintenance operations in accordance with
established department procedures and policies. . . . Work is
performed under the general direction of an Engineer." The CMS is
required to complete a weekly work schedule outlining his proposal
for the coming week with regard to workers, materials, and specific
jobs to be performed. This proposed work schedule is required to
be submitted to the district engineer's office for review and
possible changes. The final authority on the scheduled use of
equipment and materials rests with the district engineer and not
Notwithstanding the Department's attempts to present the CMS
as a policymaker, we share the lower court's view that the evidence
does not support the Department's position. The all-encompassing
objective of the Superintendent's position is to maintain the
county road system. Based on this Court's review of the record
below, it appears that the duties of the CMS are "limited . . .
[with] well-defined objectives." Elrod, 427 U.S. at 368.
Furthermore, his duties are not of a broad scope, nor does he
"act as an advisor or formulate plans for the implementation of
broad goals." Id. Accordingly, we agree with the circuit court's
conclusion that the position of CMS cannot be viewed as one
involving policymaking. See Abraham v. Pekarski, 537 F. Supp. 858,
862 (E.D. Pa. 1982), judgment aff'd in part and appeal dismissed in
part, 728 F.2d 167 (3rd Cir. 1984), cert. denied, 467 U.S. 1242
(1984) ("[a]lthough he [Director of Roads and Public Property] was
vested with some discretion in the execution of his duties, such as
determining which potholes should be filled, plaintiff's position
did not empower him to make policy decisions"). Finding no factual
or legal error, we uphold the trial court's ruling that the
position of CMS does not require its holder to share the same
political affiliation or association as the governor to effectively
perform the duties attendant to such position.
Finally, we address the constitutionality of West Virginia
Code § 29-6-4(d). Appellee has challenged this statutory provision
as being violative of his First Amendment right of free speech.
When such a challenge is made, the statute is presumptively
invalid. Walker v. Dillard, 363 F. Supp. 921, 926 (W.D. Va. 1973),
rev'd on other grounds, 523 F.2d 3 (4th Cir.), cert. denied, 423
U.S. 906 (1975). Because of this presumption, the Department had
the burden of proving the statute's validity. See Elrod, 427 U.S.
at 362. Recognizing that "the prohibition on encroachment of First
Amendment protections is not an absolute[,]" the Supreme Court in
Elrod ruled that an otherwise invalid statute could be enforced by
demonstrating that a vital government interest is advanced through
implementation of the statute. See id. at 360.
The Department clearly failed to meet the following test
established in Elrod for the permissible encroachment on a public
employee's First Amendment right:
In short, if conditioning the retention of
public employment on the employee's support of
the in-party is to survive constitutional
challenge, it must further some vital
government end by a means that is least
restrictive of freedom of belief and
association in achieving that end, and the
benefit gained must outweigh the loss of
constitutionally protected rights.
427 U.S. at 363. In response to the Elrod test, we note that the record in this case contains no evidence that the Department demonstrated the existence of a vital government interest which was furthered by the Appellee's transfer. Certainly, the loss of the constitutionally protected rights at issue here is not outweighed by the articulation of any benefit the Department might claim to receive by having Superintendents whose political affiliation comports with that of the governor. Accordingly, we hold that West Virginia Code § 29-6-4(d) is unconstitutional insofar as it applies to the position of CMS. We do not rule that West Virginia Code § 29-6-4(d) is unconstitutional in toto because a factual inquiry must be performed with regard to each public employee listed therein to determine whether their respective position requires shared political ideology for effective job performance.
Based on the foregoing opinion, the decision of the Circuit
Court of Wayne County is hereby affirmed.
Footnote: 1At the time Mr. Akers was hired as the Wayne County Superintendent, the position was vacant because the individual who previously held that position had retired for health reasons.
Footnote: 2Each of the incumbent Superintendents was a registered Republican.
Footnote: 3When the Legislature extended civil service protection to county employees in 1983, Superintendents were not included in the list of employees slated to receive such coverage.
Footnote: 4The fact that Appellee was not discharged from government employment does not eliminate the Branti-Elrod analysis. Prior to Rutan, the principles that underlie the unconstitutionality of patronage dismissals were recognized by the Fourth Circuit Court of Appeals in Delong v. United States, 621 F.2d 618 (4th Cir. 1980), to apply similarly to practices "that can be determined to be the substantial equivalent of dismissal." Id. at 624. While the use of the "substantial equivalent of a dismissal" standard to determine the constitutionality of an alleged patronage practice is no longer valid after Rutan, the United States Supreme Court left no question that employment decisions such as promotions, transfers, and recalls after layoffs cannot be based on political affiliation or support. 497 U.S. at _____, 110 S. Ct. at 2737.