No. 20862 -- Donald Akers v. The West Virginia Department of
Neely, Justice, dissenting:
The majority's decision today twists the knife in the
wound that this Court inflicted on the voters and the political
process in Adkins v. Miller, ___ W.Va. ___, 421 S.E.2d 682 (1992).
Today's decision makes it clear that the majority has decided that
the Constitution of the United States requires the State of West
Virginia to employ a civil service system for all of its
employees.See footnote 1 In yesteryear, the average voter -- a person unable
to make political campaign contributions, unable to entertain
lavishly, and unable even to flatter convincingly -- had at least
one weapon in his never ending battle to obtain a responsible,
accountable government: his vote! After the opinion today, this
Court is saying that no matter how dissatisfied the average voters
of West Virginia are with their government, they can no longer
demand change in the oldest democratic form; they can no longer
vote the bastards out! The working class should be out in the
streets because as accountability decreases, the only thing that
matters in elections becomes MONEY and MORE MONEY. Today's
decision drives home to all citizens of West Virginia that only
people with money count in politics.
In Adkins, ___ W.Va. ___, 421 S.E.2d 682 (1992), this
Court tragically took a giant step toward dirigist, permanent
government by declaring that the Legislature does not have the
power to limit the term of a deputy sheriff to the term of the
sheriff who appoints him. Now today's decision denigrates the
perogratives of the Governor and flies in the face of significant
constitutional precedent to the effect that when the governor acts
in accordance with a clear Legislative provision, such an action
"should be 'supported by the strongest of presumptions and the
widest latitude of judicial interpretation, and the burden of
persuasion would rest heavily upon any who might attack it.'"
Adkins, ___ W.Va. at ___, 421 S.E.2d at 696 (1992) (Neely, J.,
dissenting) (quoting Youngstown Sheet & Tube v. Sawyer, 343 U.S.
579, 637 (1952) (Jackson, J., concurring)).
Deference to the legislative determination of
"policymaker" status is fully supported, indeed required, by Elrod
v. Burns, 427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507
(1980), Rutan v. Republican Party of Illinois, 497 U.S. 62, 110
S.Ct. 2729 (1990), and their progeny. Although, in Elrod, the
court allowed patronage dismissals of only "policy-making" or
"confidential" employeesSee footnote 2, by Branti and Rutan, the test was
broadened to "whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for effective
performance of the public office involved." Branti, 445 U.S. at
518; Rutan, 497 U.S. at 71, 110 S.Ct. at 2734. The Elrod-Branti-Rutan test involves "striking a balance between the interests of
the [government employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees." Mount Healthy City School District Board of
Education v. Doyle, 429 U.S. 274, 284 (1977) (quoting Pickering v.
Board of Education, 391 U.S. 563, 568 (1968)); Connick v. Myers,
461 U.S. 138, 142 (1983).See footnote 3
Applying that test to the situation in the case before us
leads to one inescapable conclusion: that the County Maintenance
Superintendent (superintendent) position is one for which "party
affiliation is an appropriate requirement for effective performance
of the public office involved." Traditionally, superintendents
have been changed whenever an administration changes. The
Legislature has never covered the position under civil service
statutes, and in W.Va. Code 29-6-4(d)  the Legislature
explicitly defined the position of superintendent as having
significant policy-making responsibilities and 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 . . . county road supervisors or their successors.
The Legislature has determined that it is important to
the effective administration of the highways that County
Maintenance Superintendents be of the same political party as the
Governor. A review of the job description underscores the
correctness of that determination; to perform the job of County
Maintenance Superintendent, one must exercise significant political
judgment. Although the majority would like to bureaucratize the
vast number of decisions required of a superintendent, it would
take a dozen top professors at the Princeton Institute of Advanced
Studies constantly to feed data into a Cray supercomputer in order
to replicate the task. For example, a superintendent must respond
"to maintenance complaints throughout the county on a 24-hour basis
and [recommend] corrective actions"; a superintendent must
"determine necessary preventative measures seasonally to decrease
the likelihood of road accidents and [dispatch] the snow removal
and ice control crews"; and a superintendent must do all of that
while ensuring "that completed work remains within allocated budget
To see what kind of challenge is faced by a
superintendent, suppose one street in a county is heavily populated
by doctors. The doctors all own expensive cars with great
suspension systems such as a Mercedes Benz or BMW. The ride of
their cars over uneven pavement makes them feel as if they are
floating on air. However, the doctors are always on call and need
to get out in emergencies. Doctors, then, prefer snow and ice
removal to road maintenance. On another county street lives
teachers and other state government employees that cannot afford
anything better than used Ford Escorts. Their cars get destroyed
by potholes and poor road maintenance. However, they have no need
to get anywhere when the weather deteriorates because the schools
close and the government grinds to a halt. These government
employees prefer road maintenance to snow and ice removal. The job
of the County Maintenance Superintendent is inherently political:
to allocate scarce resources in such a way that it benefits his
constituents (the residents of the county). The weighing of the
variable needs of these residents involves a political choice, one
that reflects directly on the governor. Clearly the governor needs
the ability to ensure that the person he appoints to make such
choices is someone who will make the choices the same way that the
governor would make them.
In the face of W.Va. Code 29-6-4(d) and the actual role
of the County Maintenance Superintendent, the majority claims that
such a provision (as applied to County Maintenance Superintendents)
is unconstitutional. However, the majority supplies virtually no
authority for its holding. They obviously did not apply the U.S.
Supreme Court test to determine "whether the hiring authority can
demonstrate that party affiliation is an appropriate requirement
for effective performance of the public office involved." Branti,
445 U.S. at 518; Rutan, 497 U.S. at 71, 110 S.Ct. at 2734. Clearly
that showing has been made. The sole (and wholly inadequate)
basis for the majority's decision to overturn a clear legislative
provision is a case from the Eastern District of Pennsylvania,
Abraham v. Pekarski, 537 F. Supp. 858 (E.D.Pa. 1982), affirmed in
part and appeal dismissed in part 728 F.2d 167 (3d Cir. 1984),
cert. denied 467 U.S. 1242 (1984). However, had anyone from the
majority bothered to read Abraham, he or she would have learned
that the U.S. District Court dismissed the Elrod-Branti claim on
The defendants, without filing any affidavits, moved for summary judgment on [two] theories. The trial court granted their motion with respect to the Elrod-Branti ground, but held that Abraham did have a Pennsylvania law property interest in employment.
Abraham, 728 F.2d at 170. That court's only holding on the applicability of Elrod or Branti was:
The short of it is that Elrod and Branti do not extend to Abraham's case. He has not been penalized for an exercise of freedom of association. Nor has he been penalized for preferring the course of nonassociation. We have not yet reached a point in the development of Elrod and Branti where public employees may override their superiors because they have a different view of what public policy should be.
Abraham, 537 F.Supp. at 866.See footnote 4
Even if we were to adopt the view of the majority that we can derive some guidance from Abraham, that guidance is not very persuasive. First, the action in Abraham was a naked exercise of executive power with no "legislative" determination that the job should be a political appointment. Such an action is in the "zone of twilight" where "any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (Jackson, J., concurring) (quoted in Adkins, ___ W.Va. at ___, 421 S.E.2d at 694 (Neely, J., dissenting)). In the case before us, the legislature determined that certain positions, including County Maintenance Superintendent, require a political affiliation with the governor in order to be performed effectively. The governor's action pursuant to this statute must be presumed valid and the burden of persuasion rests "heavily upon any who might attack it." Youngstown Sheet & Tube, 343 U.S. at 637 (Jackson, J., concurring)
(quoted in Adkins, ___ W.Va. at ___, 421 S.E.2d at 694 (1992)
(Neely, J., dissenting)). Second, Pennsylvania is not West
Virginia. As anyone who has spent any time in West Virginia
politics should know, the two most important political issues in
West Virginia over the past hundred years have been education and
the decision of which roads get built or paved and which roads
remain cow paths. The superintendent is the official who actually
makes these crucial determinations for secondary roads in a county.
In order to have a responsive government that puts roads where the
people want them, the superintendent should not be an entrenched
bureaucrat with his own political fiefdom, but should be an agent
of the elected governor.
The majority's opinion would be comical were it not so tragic. Here the majority is substituting its own guess of whether a superintendent is a "policymaker" for a carefully considered legislative determination that party affiliation is, to quote Branti, "an appropriate requirement for effective performance of the public office involved." Branti, 445 U.S. at 518; Rutan, 497 U.S. at 71, 110 S.Ct. at 2734. By getting hung up on the term "policymaker" without actually looking at what the test is supposed to mean, the majority has created an error of the first order.
Footnote: 1Although it is not in my copy of the Constitution of the United States, the majority's copies apparently contain a heretofore undiscovered Amendment XXVII, "Thou shalt have a civil service system for all employees."
Footnote: 2Elrod, 427 U.S. at 367 (plurality opinion).
Footnote: 3Furthermore, the majority either chooses to ignore or fails to comprehend the entire rationale behind Elrod and its progeny. Elrod, et al. were designed to prevent an executive officer, such as a governor, from using political affiliation as a basis for unfavorable job actions where political affiliation was not at all necessary to the performance of the job. In this case, the legislature clearly defined the role of a County Maintenance Superintendent as one that requires political affiliation. This was not a broad statement that all state employees need be aligned politically with the governor, but a narrow, specifically considered list of jobs for which party affiliation is "essential . . . to the effective performance of and is an appropriate requirement for . . . county road supervisors or their successors." W. Va. Code 29-6-4(d) . The United States Supreme Court invited legislatures clearly to define for which government jobs party affiliation is an appropriate requirement with Elrod, Branti, and Rutan. The West Virginia Legislature accepted that challenge and created W. Va. Code 29-6-4(d) . By getting hung up on the term "policymaker" rather than looking to the actual meaning of the Elrod, Branti and Rutan opinions, this Court has appointed itself as the sole administrator of an allegedly constitutionally-mandated civil service system.
Footnote: 4That court did speculate, in an extreme case of obiter dicta, that the "policy-maker" exception might not apply to Mr. Abraham. However, that issue was not even addressed by the defendants in that case and can hardly be viewed as applicable to the situation before us today.