Klaus v. Village of Tijeras et al
Filing
194
MEMORANDUM OPINION AND ORDER by Magistrate Judge John F. Robbenhaar deferring in part and denying in part 125 Individual Defendants' Motion for Partial Summary Judgment On All Federal Claims. (kc)
Case 1:20-cv-01105-JFR-KK Document 194 Filed 09/16/22 Page 1 of 42
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DIANE KLAUS,
Plaintiff,
vs.
Civ. No. 20-1105 JFR/KK
VILLAGE OF TIJERAS, JAKE
BRUTON, DON JOHNSON, FELIX
GARCIA and MAXINE WILSON,
in their individual and official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER1
THIS MATTER is before the Court on Individual Defendants’ Motion for Partial
Summary Judgment On All Federal Claims (“Motion”), filed November 3, 2021. Doc. 125. On
December 6, 2021, Plaintiff filed a Response. Doc. 151. On January 14, 2022, Defendants filed
a Reply. Doc. 159. The Court, having considered counsel’s arguments, the record, and the
relevant law, DEFERS ruling in part2 and FINDS that Defendants’ Motion is not well taken in
part and DENIED IN PART.
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. Docs. 5, 9, 11.
2
Plaintiff argues that if the Court were to find that the Village Council’s resolution converted Plaintiff’s position from
an hourly to a salaried at-will position, Defendants violated the Contracts Clause of the U.S. Constitution and,
therefore, the resolution is void. Doc. 172 at 2-3, ¶ 2. See Complaint, Count V, which states in pertinent part
[i]f this Court finds that the Defendants’ passage of this resolution effectively changed Plaintiff’s
employment status from a regular full time hourly employee who could only be fired for cause to
that of a salaried employee who could be fired at will, the Defendants’ enactment of this resolution
substantially impaired, and in fact completely destroyed, the Plaintiff’s contractual rights to and
reasonable expectation of continued employment, and her reasonable expectation that she could be
terminated only for cause and only if the Village followed certain procedures in accordance with
the provisions of the Defendant’s Personnel Ordinance.
Doc. 1-1 at 17, ¶ 108. In its Memorandum Opinion and Order entered on May 24, 2022, Doc. 192, the Court granted
Plaintiff’s Motion for Partial Summary Judgment On Existence of Implied Employment Contract (Doc. 126), finding
that it was undisputed that an implied contract existed from the time Plaintiff completed her probationary period until
she was converted to a salaried employee, and that genuine issues of material fact exist as to whether at the time
Case 1:20-cv-01105-JFR-KK Document 194 Filed 09/16/22 Page 2 of 42
I. FACTUAL BACKGROUND
The Village of Tijeras (“Village”) hired Plaintiff as a Deputy Clerk in October of 2011.
Doc. 1-1 at 2, ¶ 10. Plaintiff successfully completed her probationary period in May of 2012. Id.
Plaintiff was classified as a regular, full time hourly employee. Id. at ¶ 11. From the date
Plaintiff was hired until January 3, 2020, Gloria Chavez was the Mayor of the Village (“Mayor
Chavez”) and was Plaintiff’s direct supervisor. Id. at ¶ 12. After January 3, 2020, Defendant
Jake Bruton, a former Village Council member, became the Mayor of the Village. Id. at ¶ 13.
Plaintiff alleges that beginning in 2017, Defendants Bruton, Johnson, Garcia and Wilson
were vocal critics and opponents of Mayor Chavez and Plaintiff and initiated a concerted effort
to terminate Plaintiff’s employment in retaliation for, inter alia, her association and affiliation
with Mayor Chavez, and for Plaintiff’s attempts to enforce Village ordinances and her reporting
to third parties in good faith what she believed were violations of state law by Village
Councilors, malfeasance by Council members, and gross mismanagement, waste of funds and
abuse of authority by Village Councilors. Id. at 4, ¶¶ 24-25. Plaintiff alleges that in April of
2019, Defendant Bruton proposed to change Plaintiff’s Deputy Clerk position to a salaried
position with a significant pay raise, which the Village Council approved on June 24, 2019. Id.
at 10, ¶¶ 68, 70. Plaintiff alleges that in so doing, Defendants claim her change in status resulted
in her being converted from a regular, full time, non-probationary employee, who was entitled to
the rights and protections afforded by the Village’s Personnel Ordinance and who could only be
Plaintiff was converted to a salaried employee the Village entered into an implied contract to terminate Plaintiff only
for cause and after following certain procedures. Doc. 192 at 22-29. The Court, therefore, is deferring ruling at this
time on Plaintiff’s Contracts Clause Violation, including whether the Individual Defendants are entitled to qualified
immunity as to that cause of action.
2
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terminated for cause, into an at-will employee who could be fired at any time, with or without
cause. Id. at 10-11, ¶ 71.
Based on the foregoing, Plaintiff’s Complaint alleges, inter alia, Defendants violated her
Contract Clause rights and violated her First Amendment right of political association. Id. at 1618, ¶¶ 105-119.
II. LEGAL STANDARDS
A.
Summary Judgment
A motion for summary judgment is appropriate when there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986); Jones v. Kodak Med.
Assistance Plan, 169 F.3d 1287, 1291 (10th Cir. 1999); Fed. R. Civ. P. 56(a). “[A] party seeking
summary judgment always bears the initial responsibility of informing the district court of the
basis for its motion and identifying those portions of [the record] ... which it believes
demonstrate the absence of a genuine issue of material fact.” Catrett, 106 S. Ct. at 2552 (internal
quotation marks omitted); see also Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th
Cir. 1998). Once the movant meets this burden, the non-moving party is required to put in the
record facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 106
S. Ct. 2505, 2511 (1986); Fed. R. Civ. P. 56(c). “A fact is ‘material’ if, under the governing law,
it could have an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’
if a rational jury could find in favor of the nonmoving party on the evidence presented.”
Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (internal
citations omitted); Bird v. W. Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016). Only material
3
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factual disputes preclude the entry of summary judgment. Atl. Richfield Co. v. Farm Credit
Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000).
The trial judge is not to weigh the evidence to determine the truth of the matter, but
instead must ask “whether a fair-minded jury could return a verdict for the plaintiff on the
evidence presented.” Anderson, 106 S. Ct. at 2512. “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at
2510. To carry its initial burden, the moving party need not negate the nonmoving party’s
claim. See Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997), cert. denied sub nom.
Smith v. Allen, 522 U.S. 1148 (1998). “‘Instead, the movant only bears the initial burden of
‘showing’—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.’” Id. (quoting Catrett). Once the moving party meets its
burden, the nonmoving party must “go beyond the pleadings and by [its] own affidavits, or by
the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Catrett, 106 S. Ct. at 2552 (quoting Fed. R. Civ.
P. 56(e)). A plaintiff cannot rely upon conclusory allegations or contentions of counsel to defeat
summary judgment but rather must produce some specific factual support of its claim. See
Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988);
Fritzcshe v. Albuquerque Mun. Sch. Dist., 194 F. Supp. 2d 1194, 1206 (D.N.M. 2002). “Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. v. Zenith Radio Corp., 106 S. Ct.
1348, 1356 (1986) (citation omitted). Upon a motion for summary judgment, a court “must view
the facts in the light most favorable to the nonmovant and allow the nonmovant the benefit of all
4
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reasonable inferences to be drawn from the evidence.” Kaus v. Standard Ins. Co., 985 F. Supp.
1277, 1281 (D. Kan. 1997). If there is no genuine issue of material fact in dispute, then a court
must next determine whether the movant is entitled to judgment in its favor as a matter of law.
See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996).
B.
Qualified Immunity
The defense of qualified immunity “protects governmental officials from liability for
civil damages insofar as their conduct does not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’ ” Weise v. Casper, 593
F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).
When a defendant asserts summary judgment based on qualified immunity, the plaintiff must
demonstrate “(1) that the official violated a statutory or constitutional right[ ] and (2) that the
right was “clearly established” at the time of the challenged conduct.” Quinn v. Young, 780 F.3d
998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al–Kidd, 563 U.S. 731, 735 (2011)). “[T]he
record must clearly demonstrate the plaintiff has satisfied his heavy two-part burden; otherwise,
the defendants are entitled to qualified immunity.” Felders ex rel. Smedley v. Malcom, 755 F.3d
870, 877-78 (10th Cir. 2014). The Court may address the two prongs of the test in any order.
Pearson, 555 U.S. at 236.
Determining whether the allegedly violated right was “clearly established” depends on
whether “the contours of the right [were] sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987). “Ordinarily, in order for the law to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of authority from other
courts must have found the law to be as the plaintiff maintains.” Seamons v. Snow, 84 F.3d
5
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1226, 1238 (10th Cir. 1996). While the plaintiff need not locate “a case directly on point,”
nevertheless “existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft, 563 U.S. at 741.
III. MATERIAL FACTS
The record, viewed in the light most favorable to Plaintiff and drawing all reasonable
inferences in her favor, shows the following.
Plaintiff was hired as a Deputy Clerk in October of 2011. Plaintiff was always employed
as Deputy Clerk with one brief exception when she was employed for one month as the Village
bookkeeper. Doc. 151 at 2, ¶ 1. From time to time, pursuant to Section 1(Q) of the Village
Personnel Ordinance, the Mayor designated Plaintiff to assume duties of the Village Clerk when
the Village did not have a Village Clerk in its employ. Doc. 151 at 2, ¶ 1; Doc. 151 at 4-5, ¶¶ 1,
2. The Village did not have a clerk between August 25, 2012 to March 1, 2015, March 20, 2016
to April 17, 2018, and November 19, 2018 to July 28, 2019. Doc. 151 at 5, ¶ 3. Mayor Chavez
designated Plaintiff during those periods to assume the duties of Village Clerk.3 Doc. 151 at 5, ¶
3.
The official job description for Deputy Clerk details forty-nine “Major Tasks and
Responsibilities” which are clerical and/or ministerial in nature.4 Doc. 151 at 5, ¶ 4. It includes
3
Defendants argue that Plaintiff does not validly dispute that she served as either Deputy Clerk or as Acting Clerk
since her hire, and that Plaintiff’s submission of an affidavit that she “was never employed as Village Clerk” does not
create a fact issue and ignores her own testimony that her job duties did not change whether she served as Deputy or
Acting Clerk. Doc. 159 at 1, ¶ 1.
4
Defendants argue that Plaintiff mischaracterizes the job description for Deputy Clerk as purely “ministerial” and
ignores several of its broad duties that reflect a high level of education, training and expertise. Doc. 159 at 3-4.
Defendants assert that the Deputy Clerk required (1) an understanding of State election laws and required certification
through a “Clerk Institute”; (2) knowledge of State and Federal requirements regarding legal postings; (3) expertise
on State and Village procurement requirements; (4) assisting with early election; and (5) expertise to insure proper
“documentation and notifications pertaining to annexations, variances, abutting property owner, and permits
required.” Id.
6
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such things as preparing minutes of meetings, filing and updating files, posting legal notices,
preparing monthly schedules, preparing licenses and permits for the Mayor’s signature,
submitting and processing notary public applications for staff, retrieving documents requested by
auditors, creating and issuing purchase orders, compiling quotes, verifying the accuracy of
invoices, processing personnel documents, preparing correspondence to candidates for hire,
placing newspaper ads, creating water user files, completing per diem requests, and ordering
uniforms for Village employees. Doc. 151 at 5, ¶ 4. It states therein that the Deputy Clerk
“[a]ssists with the administration of the Village of Tijeras Personnel Policy – Communicates
Governing Body actions policies and wishes by memo or personally to other departments and
employees,” and “[s]chedules personnel safety training as required by the NMSIF.”5 6 Doc. 151
at 3, ¶ 3; Doc. 151-2 at 3. The only non-specific “Major Task and Responsibility” set out in the
Deputy Clerk’s job description is that he or she “performs such other duties consistent with the
office of the Mayor, Clerk/Treasurer, and/or the Governing Body.”7 Doc. 125 at 3, ¶ 2; Doc. 151
at 5, ¶ 4.
Plaintiff testified that in addition to the specifically described tasks, she also read
water meters, cleaned toilets, and cleaned the Council room and Village Hall. Doc. 151 at 6, ¶ 5.
The Deputy Clerk is the second highest paid position in Village government. Doc. 125 at 3, ¶ 4.
5
The Deputy Clerk job description also provides that the Deputy Clerk “[a]dministers H/R documents; processes all
employment paperwork and schedules interviews as needed. Orders all investigative reports as required for a new
hire, complete I-9 and New Hire Reports. Provides orientation to new employees. Prepares personnel folders and
places all documents concerning each employee in said folder in a timely manner (i.e., insurance docs. W-4, leave
requests, certificates of training, key and door code paperwork, wage agreements, probation and paperwork and exit
letters; notification of any increase in insurance premiums and salary increases). Tracks and maintains records of
attendance. Keeps confidential personnel files up to date.” Doc. 151-2 at 4.
6
Defendants stated that the Deputy Clerk serves as the Human Resources/Personnel director, and thus keeps and has
access to all confidential employee personnel files. Doc. 125 at 3, ¶ 3. Defendants cite Exhibit B1 which is a copy of
Section 19 from the Village Personnel Ordinance and does not provide any Deputy Clerk job description information.
See Doc. 125-3 at 1.
7
Defendants argue that the “sworn admissions by Plaintiff as to other job duties assigned to the Deputy Clerk are
relevant to the political sensitivity of the position.” Doc. 159 at 2, ¶ 2.
7
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Mayor Chavez testified that Plaintiff’s duties as Deputy Clerk or Acting Clerk included:
(a) managing village staff; (b) overseeing the day-to-day operations of the Village; (c) making
sure Village ordinances were enforced; (d) overseeing the billing for the Village’s water utility;
and (e) interacting with the public on behalf of the Village.8 Doc. 125 at 3, ¶ 1.
To that end, Plaintiff maintained personnel files for between 9 and 10 Village
employees.9 Doc. 151 at 6, ¶ 7. As Deputy Clerk, Plaintiff supervised five (5) employees.
Doc. 151 at 6, ¶ 7. When assuming the duties of Acting Clerk, Plaintiff supervised an additional
five (5) employees. Doc. 151 at 6, ¶ 7. Plaintiff managed Village staff by ensuring there was
coverage for absent employees, identifying concerns about employee performance, and
recommending disciplinary actions to the Mayor. Doc. 151 at 7, ¶ 10. Plaintiff did not have the
same level of power and authority as the Mayor, and did not control or have direct authority over
Village staff. Doc. 151 at 8, ¶ 13. Plaintiff’s authority to discipline employees was limited to
her presenting documentation about an employee’s performance to the Mayor. Doc. 151 at 6, ¶
7. Plaintiff had no authority to decide whether an employee would be disciplined, and did not
have authority to make unilateral decisions about personnel matters. Doc. 151 at 6, ¶ 7. The
Mayor had that authority and responsibility. Doc. 151 at 6, ¶ 7; Doc. 151 at 7, ¶ 10. Plaintiff, as
well as other employees, would bring issues to the Mayor for her decision. Doc. 151 at 8, ¶ 14.
8
Plaintiff disputes this summary as incomplete and hence misleading. Doc. 151 at 3 ¶ 1.
9
Defendants argue that Plaintiff does not dispute that the Deputy Clerk has access to all confidential employee
personnel files. Doc. 159 at 3, ¶ 3. Defendants argue that whether the Deputy Clerk held an official title of Personnel
Director is not material, based on the case law cited in their Motion, for purposes of determining the position’s political
sensitivity. Id. Defendants argue that the job description requires the Deputy Clerk to “administer H/R documents”
and confers on the Deputy Clerk all responsibilities associated with an H/R Director. Id. Defendants assert that “as
a matter of common knowledge, the fact that a mayor, as “management,” ultimately makes the hiring and firing
decisions is consistent with every H/R department, both public and private.” Id.
8
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Plaintiff’s duties and responsibilities relating to payroll were limited to making sure it
was completed, gathering timecards from employees, calculating the number of hours each
employee had worked in a given pay period, entering that information on a spreadsheet and
giving the spreadsheet to the Finance Director. Doc. 151 at 7, ¶ 9. Plaintiff had no authority or
responsibility to determine the amount of payroll tax deductions or program the payroll system,
and did not make changes to that system apart from changes reflecting pay raises given to
employees, and sometimes preparing reports when the Finance Directors was unable to do so.
Doc. 151 at 7, ¶ 9.
Plaintiff’s duties relating to overseeing the day-to-day operations of the Village were
limited to making sure all complaints were addressed by staff, water meters were installed,
providing copies of documents upon request, and ensuring the Village’s engineering consultant
got the information it needed. Doc. 151 at 7, ¶ 11. Handling the day-to-day functions of the
Village’s office is different than making policy decisions on behalf of the Village. Doc. 151 at
7-8, ¶ 11. Plaintiff did not have the authority to make decisions about what the Village’s policies
were or should be. Doc. 151 at 8, ¶ 15. Plaintiff was not the institutional boss at the Village, nor
was she the decision maker. Doc. 151 at 8, ¶ 15. The Mayor and Village Council, and not
Plaintiff, made and implemented Village policies. Doc. 151 at 8, ¶ 11.
Plaintiff’s duties with respect to budgets were limited to making up the template for
budgets containing the budgeted amounts from the previous fiscal year and the year-to-date
expenditures in each budget category. Doc. 151 at 6, ¶ 6. Plaintiff did not have any other input
into the Village’s budget, and except for one grant, Plaintiff did not decide or recommend the
numbers or amounts of money that would be placed into each budget category, nor did she draft
9
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proposed budgets. Doc. 151 at 6, ¶ 6. The Mayor and Village Council controlled the budget.
Doc. 151 at 6, ¶ 6.
Plaintiff’s authority and responsibility for making sure Village ordinances were enforced
were limited to reading the ordinances, and when a violation was brought to her attention,
bringing the matter to the Mayor’s attention who would make the decision about what action
would be taken. Doc. 151 at 8, ¶ 12.
Plaintiff, as well as several other Village employees, were at various times responsible
for the water utility billing system. Doc. 151 at 10, ¶ 19. Plaintiff’s duties and responsibilities
with respect to the water billing system were limited to overseeing the employees who entered
information into the Village’s computerized billing system. Doc. 151 at 10, ¶ 9.
There was a counter inside the entrance to Village of Tijeras Village Hall. Doc. 151 at 9,
¶ 17. Members of the public who entered the Village Hall would go to the counter and ask
questions and conduct business. Doc. 151 at 9, ¶ 17. Plaintiff staffed that counter very
infrequently. Doc. 151 at 9, ¶ 17. Instead, it was staffed by other employees who entertained
and answered questions from, and provided assistance to, members of the public. Doc. 151 at 9,
¶ 17. Only when staff could not answer the question would the Plaintiff get involved in
responding to questions and requests for assistance. Doc. 151 at 9, ¶ 17. Plaintiff would usually
tell staff who could not answer a question what the answer was and the staff would then provide
that answer to members of the public. Doc. 151 at 9, ¶ 17. Only when the question or request
was difficult would Plaintiff speak to members of the public. Doc. 151 at 9, ¶ 17.
Plaintiff was not the spokesperson for Village government.10 Doc. 151 at 9, ¶ 16.
Plaintiff was authorized to speak on behalf of the Village on only two occasions during her term
10
Defendants dispute this and argue that Mayor Chavez’s affidavit attached to their Motion as Exhibit A included the
statement that Plaintiff’s duties as Deputy Clerk or Acting Clerk included “interacting with the public on behalf of the
10
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of employment. Doc. 151 at 9, ¶ 16. She spoke on behalf of the Village at two grant
administrator meetings. Doc. 151 at 9, ¶ 16. At the first meeting she spoke about what the
Village wanted to accomplish with the grant funds it had been awarded. Doc. 151 at 9, ¶ 16. At
the second meeting, Plaintiff gave a presentation about how the Village had applied for a grant.
Doc. 151 at 9, ¶ 16.
While Plaintiff could voice her input on what should be placed on Council meeting
agendas, the decision of what would and would not be placed on such agendas, and the authority
to make such decisions, was the Mayor’s and Plaintiff did not have the authority to overrule the
Mayor’s decision. Doc. 151 at 7, ¶ 8.
At the Village Council meeting held on July 17, 2019, as part of the approval of its
annual budget, the Village converted two positions from hourly to salaried – Deputy Clerk and
Financial Director, both with commensurate increases in pay.11 Doc. 125 at 2, ¶ 2. The Village
Personnel Ordinance, at Section 19, provides that salaried employees are at-will employees who
can be fired with or without cause.12 13 Doc. 125 at 3, ¶ 3. When Defendants changed Plaintiff’s
status to a salaried employee, Plaintiff did not receive a promotion. Doc. 151 at 8, ¶ 13.
Plaintiff’s job duties as Deputy Clerk remained the same and she was not given any additional
Village.” Doc. 159 at 2-3, ¶ 1. Defendants argue that this sworn testimony supports Defendants’ assertion that in her
position as Deputy Clerk she served as a “spokesperson for the Village government.” Id. Defendants argue that
Plaintiff improperly attempts to characterize this assertion as unsupported by admissible evidence. Id. Defendants
argue that it conflicts with Plaintiff’s affirmative statement that “when the question or request was difficult . . . Plaintiff
would speak to members of the public.” Id.
11
12
Plaintiff disputes that she was converted to an at-will employee. Doc. 151 at 2, ¶ 2.
See fn. 2, supra.
13
Defendants argue that “Plaintiff cannot validly dispute that salaried employees are terminable at will by “torturing
the meaning of The Village Personnel Ordinance, at Section 19,” and that to argue some salaried employees are
somehow not terminable at will, as Plaintiff attempts, conflicts with the plain language of the ordinance.” Doc. 159
at 2.
11
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duties, authorities or responsibilities. Doc. 151 at 8, ¶ 13. Six days after Defendants changed
Plaintiff’s status, the Village of Tijeras hired Raul Candelaria as Village Clerk and Plaintiff did
not perform the duties of Village Clerk after that date. Doc. 151 at 8, ¶ 13.
Plaintiff’s role in the issuance of the PERA reimbursements checks and in seeking
Council approval was limited to (1) finding Resolution 191 while scanning documents;
(2) asking the Village’s contract accountant to read it; (3) taking it to Mayor Chavez to read it;
(4) speaking with the Village attorney and a PERA representative at the direction of Mayor
Chavez; and (5) reporting to Mayor Chavez the substance of those conversations. Doc. 151 at 910, ¶ 18. Mayor Chavez made the unilateral decision to issue the PERA reimbursement checks
and made the decision not to take that matter to the Village Council for its approval. Doc. 151 at
10, ¶ 18. The Office of the State Auditor’s report expressly stated that Mayor Chavez made the
executive decision to issue those checks and not seek Council approval. Id.
IV. ARGUMENTS
A.
Defendants’ Motion
The Individual Defendants argue that individual municipal actors have qualified
immunity from suits brought pursuant to 42 U.S.C. § 1983 unless a plaintiff demonstrates that
the official violated a statutory or constitutional right and that the right was clearly established at
the time of the challenged conduct. Doc. 125 at 3. In this case, the Individual Defendants argue
that no Tenth Circuit or U.S. Supreme Court authority supports the notion that a public body’s
termination of a deputy clerk in circumstances similar to that of Plaintiff violated her First
Amendment right to political association. Doc. 125 at 7-11. Additionally, the Individual
Defendants argue that Plaintiff was in a politically sensitive position such that (1) Plaintiff could
be terminated for her political association without violating the First Amendment, and (2) the
12
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case law for determining which positions are politically sensitive and which are not is not clearly
established such that the Individual Defendants are entitled to qualified immunity. Id.
Defendants rely on and cite Aiken v. Rio Arriba Bd. of Cty. Comm’rs, 134 F.Supp.2d
1216, 1222-23 (D.N.M. 2000), for factors to be considered for finding an employee is a
policymaking employee. Id. In Aiken, plaintiff, a county employee, claimed he was fired in
violation of the First Amendment due in part to his political affiliation and associations. 134
F.Supp.2d at 1219. Defendants argued they had an absolute right to terminate plaintiff’s
employment on the basis of his political affiliation. Id. In determining that plaintiff was in a
policymaking position, District Judge Bruce Black explained that
[f]irst, the County has created a presumption that the position of Special Projects
Director is a policymaking position, by making the position exempt rather than
classified . . . Second, Plaintiff occupied one of the highest positions in the County
government hierarchy, as evidenced by the fact he was the eighth-highest paid
employee. Third, although Plaintiff’s exact role as a spokesperson for the County
is disputed, it is not disputed that he appeared at meetings and spoke as a
representative of the County. The fact that he may have been merely parroting the
County Commissioner’s positions does not matter; in fact, that would be expected
of a policymaking employee, who is required to demonstrate loyalty to the
governing body’s policies and politics. Fourth, Plaintiff’s job description is vague
and open ended. Finally, it is also undisputed that Plaintiff reported to the County
Commissioners and was expected to keep them directly informed of the various
projects he was supposed to be working on. All of the foregoing have been found
significant factors in favor of finding that an employee is a policymaking employee.
Id. at 1222-23 (citations omitted).
Defendants argue that the many factors cited in Aiken reflect that determining whether a
position is policymaking is sui generis. Doc. 125 at 7-11. As a result, Defendants contend that
public officials do not have a clear standard by which to determine if a given position meets the
criteria of sufficient political sensitivity or confidentiality. Id. Defendants contend that at a
minimum, the foregoing law on this issue is not well-settled as to which positions are political
and which are not. Defendants also cite a New Mexico Supreme Court case that reached a
13
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similar conclusion - Garcia-Montoya v. State Treasurer’s Off., 2001-NMSC-003, 130 N.M. 25,
16 P.3d 1084. In that case, the Court concluded there were genuine issues of fact precluding
summary judgment on the merits of the First Amendment claim against the public entity, but
nevertheless held that the individual defendants enjoyed qualified immunity for lack of clearly
established case law regarding the political sensitivity of the position. Id. at ¶¶ 24, 28.
The Individual Defendants assert that applying the factors relied upon by both Tenth
Circuit and persuasive New Mexico case law to the material facts before the Court establish that
Plaintiff’s position as Deputy Clerk was politically sensitive. Doc. 125 at 10-11. They assert
that Plaintiff’s duties as Deputy Clerk included (a) managing village staff; (b) overseeing the
day-to-day operations of the Village; (c) making sure Village ordinances were enforced;
(d) overseeing the billing for the Village’s water utility; and (e) interacting with the public on
behalf of the Village. Id. These duties, Defendants contend, reflect that Plaintiff served as a
“spokesperson” for the Village government. Id. Defendants assert that the official job
description of the Deputy Clerk details four pages of specific duties and further broadly states
that he or she “performs such other duties consistent with the office of the Mayor,
Clerk/Treasurer, and/or the Governing Body.” Id. Defendants contend this renders Plaintiff’s
job description as “vague and open-ended.” Id. Defendants contend that the Deputy Clerk’s
involvement with most facets of Village government, as detailed in the job description,
demonstrates that the Deputy Clerk influences and helps shape official policy. Id. Defendants
contend that the Deputy Clerk serves as the Human Resources/Personnel director, and thus keeps
and has access to all confidential employee personnel files, a significant factor in favor of
political sensitivity. Id. Defendants contend that the Deputy Clerk is the second highest paid
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position in Village government, and receives a salary, not hourly pay. Id. Finally, as per the
Personnel Ordinance, the position is at-will, reflecting its politically sensitive nature. Id.
The Individual Defendants vehemently deny that they terminated Plaintiff because of her
political association with Mayor Chavez. Doc. 125 at 10-11. Rather, they argue they terminated
Plaintiff for the reasons stated in the Village Council’s Findings and Conclusions issued after an
evidentiary hearing and deliberation. Id. However, assuming for purposes of analyzing qualified
immunity in this Motion that the Individual Defendants terminated Plaintiff for her political
association with Mayor Chavez, Defendants argue that the Deputy Clerk position reflects such
political sensitivity and responsibility that Plaintiff’s termination would be permissible on
political grounds alone. Id. At a minimum, for purposes of qualified immunity analysis, the
Individual Defendants contend that the law as applied to these facts does not establish that
Plaintiff had any clearly established right as she asserts. Id.
Based on the foregoing material facts, Defendants ask the Court to dismiss this claim as
against the Individual Defendants on grounds of qualified immunity. Defendants assert that as a
matter of law, Plaintiff cannot establish that her alleged right was clearly established by Tenth
Circuit or U.S. Supreme Court case law. Rather, the best Plaintiff can argue is that the relevant
law “is blurred around the edges” for Plaintiff’s complex position as Deputy Clerk. Doc. 125 at
11.
B.
Plaintiff’s Response
Plaintiff argues that where the facts of prior cases are materially similar to those at issue,
or where the Individual Defendants’ conduct amounts to an obvious violation of an individual’s
constitutional rights, qualified immunity will not attach. Doc. 151 at 12 (citing Taylor v. Riojas,
1412 S.Ct. 52, 53-54 (2020). Plaintiff argues that qualified immunity does not attach even when
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there are factual distinctions between precedents relied on and the facts of the case before the
Court “so long as the prior decisions gave reasonable warning that the conduct then at issue
violated constitutional rights.” Id. (citing Hope v. Pelzer, 536 U.S. 730, 740 (2002) (quoting
U.S. v. Lanier, 520 U.S. 259, 269 (1997)). Plaintiff argues that prior cases gave the Individual
Defendants in this case reasonable warning that their conduct violated Plaintiff’s constitutional
rights under the First Amendment. Doc. 151 at 12. Plaintiff cites Walton v. New Mexico State
Land Office, 49 F.Supp.3d 920 (D.N.M. 2014), in which District Judge James Browning
collected and discussed cases that Plaintiff asserts demonstrate that at the time the Individual
Defendants terminated Plaintiff, the law was clearly established that a public employer may not
terminate a public employee because of that employee’s affiliation with a past administration.
Doc. 151 at 16-17.
Plaintiff contends that her position as Deputy Clerk was not a politically sensitive
position and did not provide the Individual Defendants a basis to terminate her for political
association. Doc. 151 at 18-24. Plaintiff further contends that, at a minimum, disputed issues of
material fact exist with respect to whether the Deputy Clerk position was in fact a politically
sensitive position thereby precluding a grant of summary judgment. In support, Plaintiff
addresses the Aiken factors in turn as follows.
Plaintiff argues that throughout nearly the entirety of her employment with the Village,
she was a classified employee who could only be dismissed for cause. Id. Plaintiff argues that
the Individual Defendants converted her position to that of a salaried, at-will employee eight
months prior to her termination as part of their prolonged effort to terminate her employment.
Id. Plaintiff argues that when her position was converted, Plaintiff’s job duties, responsibilities
and title remained the same and she had no increase in her authority. Id. Plaintiff, therefore,
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argues that Defendants’ reliance on her exempt status as a presumption of a policymaking
position should be rejected. Id.
Next, Plaintiff argues that the Individual Defendants overstate Plaintiff’s duties related to
management, budget, enforcement of ordinances, and their assertion that the job description of
Deputy Clerk was vague and open ended. Id. As for management, Plaintiff argues that the
Individual Defendants’ characterization of her as “Human Resources/Personnel Director” is not
supported by the evidence. Id. Plaintiff’s responsibilities for managing Village staff was limited
to ensuring there was coverage for absent employees, identifying concerns about employee
performance, and recommending disciplinary action to the Mayor. Id. Plaintiff argues she did
not have the power or authority to take disciplinary action against any of the employees she
supervised, or decide whom to hire or fire, and that only the Mayor had that authority. Id.
Plaintiff argues her duties with respect to personnel were limited to maintaining personnel files,
processing personnel documents, preparing correspondence to candidates for hire, ordering
uniforms for Village employees, assisting with the administration of the personnel policies, and
scheduling safety training. Id. Plaintiff argues her access to “confidential” information was
limited to maintaining personnel files and supervising staff. Id. These duties, Plaintiff asserts,
were administrative or clerical in nature and did not involve policymaking. Id.
Plaintiff argues that her oversight of the Village’s day-to-day operations entailed making
sure all complaints were addressed, water meters were installed, providing copies of documents
upon request, and ensuring the Village’s engineering consultant got the information they needed.
Id. Plaintiff argues that her responsibility for “overseeing the billing for the Village’s water
utility” was sporadic and limited to overseeing the employees who entered information into the
Village’s computerized billing system. Id. Plaintiff argues her responsibilities over the Village’s
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budget was entirely clerical in nature and she had no meaningful involvement in budgetary
matters. Id. Plaintiff similarly argues that her responsibilities for the Village’s payroll was
limited to clerical and administrative tasks. Id.
Plaintiff argues that her enforcement of the Village ordinances was limited to reading the
ordinances and, when potential violations were brought to her attention, bringing that
information to the Mayor who made the decision about what action would be taken.
Plaintiff argues that she did not have the authority to determine what would and would
not be placed on Council meeting agendas and that only the Mayor had that authority. Id.
Plaintiff argues that the Individual Defendants’ assertion that she acted as a spokesperson for the
Village is not supported by the facts set out in their Motion. Id.
Lastly, Plaintiff argues that Plaintiff’s job description contains forty-nine separately
enumerated, specifically described job duties, forty-eight of which are clerical, ministerial or
administrative in nature. Id. Plaintiff argues that the only “open ended” provision in Plaintiff’s
job description is the final statement that the Deputy Clerk is responsible for performing “other
duties consistent with the office of Mayor, Clerk/Treasurer and/or Governing.” Id. Plaintiff
asserts that the duties assigned to her under this catch-all description were menial in nature, i.e.,
she read water meters, cleaned toilets, and cleaned the Council Room and Village Hall. Id.
Plaintiff contends these facts show the position of Deputy Clerk largely entailed the
performance of clerical and administrative functions and was not a policymaking or confidential
position. Id. Plaintiff further contends that these facts create at a minimum disputed issues of
material fact whether Plaintiff’s political affiliation was a requirement for the effective
performance of her job as Deputy Clerk. Id.
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C.
Defendants’ Reply
Defendants argue that Plaintiff mischaracterizes the job description for Deputy Clerk as
purely “ministerial” and ignores several of its broad duties that reflect a high level of education,
training and expertise. Doc. 159 at 3-4. Defendants assert that the Deputy Clerk required (1) an
understanding of State election laws and required certification through a “Clerk Institute”;
(2) knowledge of State and Federal requirements regarding legal postings; (3) expertise on State
and Village procurement requirements; (4) assisting with early election; (5) expertise to insure
proper “documentation and notifications pertaining to annexations, variances, abutting property
owner, and permits required”; (6) extensive personnel and supervisory responsibilities; (7) ability
to perform open-ended job duties; and (8) speaking on behalf of the Village, at least on
“difficult” public issues. Doc. 159 at 3-4, 8. Defendants further argue that the Deputy Clerk is
the second highest paid position in the Village and was an exempt position. Doc. 159 at 8.
Defendants concede that the job description includes many lesser, ministerial functions, but that
Plaintiff’s Response ignores these broader duties that require significant expertise. Doc. 159 at
3-4.
Defendants argue that for purposes of political sensitivity job descriptions matter, and
that if political sensitivity of Plaintiff’s position is clear from the job description or the Village
ordinance, Plaintiff’s focus on her other duties is immaterial to the Motion. Doc. 159 at 4.
Defendants argue that Plaintiff’s proposed material facts of her actual duties and variations of her
job titles while employed by Mayor Chavez are also immaterial and an attempt to show a factual
dispute as to the duties and responsibilities of the position by attesting to what she personally did
as Deputy Clerk. Id. at 4-5. Defendants argue that Plaintiff’s actual duties and responsibilities
under the previous mayor, to the extent they differed from the written job description, do not
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inform the Court as to why this administration considers the Deputy Clerk’s position politically
sensitive. Id. Defendants contend the actual job description provides an objective basis for what
the position currently entails. Id.
Defendants assert that the case law collected and discussed by District Judge Browning in
Walton, albeit well-informed for the general proposition that a public entity cannot terminate an
employee for a political association, fails to address the extensive duties and role of the Deputy
Clerk the Individual Defendants rely upon here and does not inform the Court on the sui generis,
multifactorial nature of whether a position is politically sensitive that leads to qualified
immunity. Doc. 159 at 7.
In sum, Defendants contend that the undisputed facts demonstrate that Plaintiff occupied
a politically sensitive position, which undermine any claims for political association violations.
Doc. 159 at 8-9. For this reason, Defendants ask this Court to dismiss the First Amendment
claim against the Individual Defendants on grounds of qualified immunity.
V. ANALYSIS
A.
Political Patronage
In Elrod v. Burns, 427 U.S. 347, 367 (1976), the Supreme Court held that the government
has a valid interest in ensuring the loyalty of its employees. The least restrictive means of
ensuring that loyalty is to limit patronage dismissals to policymakers. Id. The Supreme Court
admitted that there is “[n]o clear line [which] can be drawn between policymaking and
nonpolicymaking positions.” Id. The Supreme Court, however, noted that the courts should
examine the nature of the employee's responsibilities, not the number of responsibilities, in
determining if a position is a policymaking one. Id. The Supreme Court indicated that a
policymaker is more likely to have “responsibilities that are not well defined or are of a broad
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scope . . . .” Id. at 368. Moreover, the courts should consider “whether the employee acts as an
adviser or formulates plans for the implementation of broad goals.” Id. Finally, the Supreme
Court stated that the government has the burden of proof to show that an employee's right to
political association should be overridden to obtain employee loyalty. Id. Any doubts should be
resolved in the employee's favor. Id.
The Supreme Court in Branti v. Finkel, 445 U.S. 507, 518 (1980), refined Elrod by
holding that a government employer can terminate an employee for his or her political
affiliations if “the hiring authority can demonstrate that party affiliation is an appropriate
requirement for the effective performance of the public office involved.” The Supreme Court
effectively held that a policymaking or confidential working relationship between an employee
and the government is relevant, but not dispositive, in determining whether political affiliation is
an appropriate requirement for the effective performance of a job. See Dickeson v. Quarberg,
844 F.2d 1435, 1440-41 (10th Cir. 1988) (discussing Elrod and Branti ). The Tenth Circuit held
in Dickeson, 844 F.2d at 1442, that the court must analyze the inherent powers of the position at
issue as well as the actual duties performed by employees in that position to decide if a job
requires political allegiance.
To defend against a First Amendment claim on this ground, a public employer has the
burden of proving that political loyalty is an “appropriate requirement for the effective
performance of the public office involved.” Poindexter v. Board of Cty. Comm’rs, 548 F.3d 916,
919 (10th Cir. 2008) (citing Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000)).
The question is not whether any particular political superior actually takes political loyalty into
account, but whether the nature of the position would appropriately permit him to do so. Id. The
Tenth Circuit has held that this determination is a question of fact. Id. (citing Snyder v. City of
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Moab, 354 F.3d 1179 (10th Cir. 2003)). Thus, if a factual dispute regarding the employee’s job
duties exists, summary judgment is inappropriate. Poindexter, 548 F.3d at 920. If the job
description and duties performed are undisputed, then the district court may resolve the issue as a
matter of law. Id.
The inquiry under Elrod-Branti is necessarily fact specific. Even though the test of
appropriateness for effective performance identified in Branti is somewhat vague and difficult to
apply, the Tenth Circuit and this district have addressed a number of factors that are useful in
determining whether a particular position is subject to political patronage: the extent to which
duties are clearly defined and nondiscretionary as opposed to vague and broad; relative pay; the
need for technical expertise in carrying out the duties of the position; the extent of power to
control others; the authority to speak with the public, other entities, or elected officials on behalf
of policymakers; the relative influence on important programs; the preparation of budgets, and
the ability to hire and fire other employees. See Poindexter, 548 F.3d at 920 (finding political
loyalty could be taken into account where county road foreman’s duties included supervising
district employees, supervising inmates working within the district, addressing all safety issues
and running safety training, delegating and supervising project assignments, terminating
employees for cause, working as County Commissioner as necessary, spending County money to
purchase materials and supplies, and acting as ambassador to the community on behalf of the
Commissioner); Snyder, 354 F.3d at 1186 (finding city treasurer position was involved in
policymaking where she had significant authority to determine how the City deals with
municipal utility bills, including making adjustments to bills and referrals to other departments;
had authority to set City’s monetary policy by determining cash requirements and how to invest
funds; had authority to set the City’s employment policy, including whom to hire for treasurer’s
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office; and had significant discretion in making policy decisions); Barker, 215 F.3d at 1137-38
(explaining that the confidential character of a position can make political affiliation an
appropriate job requirement and that the confidential nature of city manager’s administrative
assistant position required political allegiance); Jantzen, 188 F.3d at 1256 (discussing whether
employees “were such important communicators or were privy to confidential information to
such an extent that political loyalty would be an appropriate job requirement”); Dickeson, 844
F.2d at 1441 (explaining that any analysis must necessarily begin with the inherent powers of the
office at issue and finding that party affiliation was not an appropriate requirement for the
effective performance of a head jailer and administrative assistant ); Aiken, 134 F.Supp.2d at
1221-22 (identifying factors to consider); Ortiz v. San Miguel County, 955 F.Supp. 1338, 1344
(D.N.M. 1996) (finding persuasive an inquiry of whether the position held by the individual
authorizes, either directly or indirectly, meaningful input into government decision-making on
issues where there is room for principled disagreement on goals or their implementation);
Salazar v. Rio Arriba County, State of NM, 81 F.3d 173, 1996 WL 134913, at *2-3 (10th Cir.
1996) (unpublished) (finding that it can be inferred that classified positions are exempt from
political patronage dismissal).
Plaintiff was in the position of and terminated as the Deputy Clerk for the Village of
Tijeras. The job description for Deputy Clerk reads as follows:
JOB TITLE:
Deputy Clerk
TYPE OF POSITION:
Non-Exempt[14]
REPORTS TO:
Mayor/Village Clerk
14
The parties dispute whether converting Plaintiff’s position to a salaried position in July 2019 rendered her “at-will”
and exempt from the provisions of the Village’s Personnel Ordinance.
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EDUCATION/EXPERIENCE:
High School diploma or equivalent (GED).
One (1) to two (2) years’ experience in city/business administration.
One (1) to two (2) years’ experience of secretarial skills.
Combination of above job experience adding up to two years.
OTHER REQUIREMENTS:
Must type a minimum of 40 WPM with accuracy.
Must be familiar with State Election Law and Statutes pertaining to the Village
Clerk’s functions.
Must be willing to attend Clerk Institute and become certified within a reasonable
period of time. (Certification takes at least three years.) Schedule must be
coordinated between Clerk and Deputy Clerk so that the office is always covered
and both aren’t attending simultaneously.)
Must be skilled in verbal and written communications.
Must be computer literate.
Must have the ability and desire to deal with the public, as well as state and local
government officials.
Must have the ability to be bonded.
Must be willing to become a Notary.
Must possess a valid New Mexico Driver’s license.
Must have a good driving record.
Must have the ability to multi-task, have good organizational skills and prioritize
work.
MAJOR TASKS AND RESPONSIBILITIES:
Must become familiar with the process of a Mayor/Council governing body
meeting. What is an agenda, rules of procedure (using “Robert’s Rules” as the
standard), when is an item an ACTION item, when to place the item under the
discussion or information heading, administering an oath. The language of local
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government; such as, quorum, Mayor Pro Tem, tort claim. Must attend all meetings
of the Governing Body and Village Boards and Commissions, if Clerk unavailable.
Assists in preparation of all minutes, ordinances and resolutions approved by the
Governing Body and the minutes and resolutions of all Village Boards and
Commissions. Or prepare same, if Clerk unavailable.
Files with the County Clerk any notices of liens created by Ordinance or under
authority of law, if Clerk unavailable.
Records all proceedings, ordinances, and resolutions of the Governing Body and
the Village’s Boards of Commissions, if Clerk unavailable.
Prepares Official Records of Proceedings upon approval, submits to Mayor for
signature and verifies placement in the ROP books (P & Z and Council).
Places legal postings and confirms same as required by State Statute and the Village
of Tijeras Open Meetings Act Resolutions. (*note: every January, a new “Open
Meetings Act” Resolution, (replacing the former year’s resolution) is brought
before the Council for approval and is placed in all Councilor’s, Commissioner’s,
Fire Chief’s, P & Z Chairman’s and Mayor’s Meeting books.) (Previous year’s
resolution removed.).
Also prepares the “Monthly Meeting Schedule” and ensures its posting in six public
places ten days prior to the first meeting of each month.
Upon request, furnishes copies of public records of the Municipality and charges a
reasonable fee for the cost of furnishing copies.
Prepares approved licenses and permits for signature by Mayor and Clerk and then
issues to requestor. Administers notice of license and inspection renewals the
middle to end of May, documents records of payment and inspection, and provides
the Fire Chief with an inspection agenda. Then keeps above doc[uments] with
completed inspection and any other notices sent to licensee in each licensee file, as
well as, an additional copy of the completed inspection in separate “INSPECTIONS
2011” (applicable year) file.
Notifies the Fire Chief of any additional inspections required throughout the year.
Assists with the administration of the Village of Tijeras Personnel Policy –
Communicates Governing Body actions policies and wishes by memo or personally
to other departments and employees.
Updates the NTTC file and issues NTTC’s (non-taxable transaction certificate) as
needed by accessing online. (See favorites by accessing the internet).
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Obtains & maintains a Notary Public and notarizes documents, as needed.
Prepares, submits and processes Notary Public applications for Village staff.
Schedules personnel safety training as required by the NMSIF. Gathers all data for
preparation and submission of training log by deadline of May 31st. Gathers all
information for preparation and submission of Safety Counseling audit due June
30th. Gathers all data for preparation and submission of NMSIF annual premium
payment due July 31st.
Researches and retrieves specific documents requested by auditors contracted by
the Village, usually in August or September, for a report to the New Mexico State
Auditor.
Assists Clerk as “acting procurement person” for all Village locations, except the
Visitor’s Center. Creates and issues purchase orders, compiles necessary quotes,
and ensures that minutes containing Council approval accompany the purchase
order per Village’s procurement resolution no. 254.
Weekly: Verifies accuracy and disbursement of invoice payments (Water, VOT,
Senior Center, Visitor Center, Fire Dept. of EMS) and issues all PV’s for the
Village, Fire Department and Senior Center (purchase vouchers). Will contact
vendors when necessary for explanation of charges or payment submission
information if invoice reflects a past due amount.
Changes the format heading of VOT, P & Z, and FD letterhead and forms when
there is a change in personnel. Ensures all forms are up to date with the new
information. Orders VOT, P & Z and FD letterhead stationary, business cards, and
return address envelopes.
Administers H/R documents; processes all employment paperwork and schedules
interviews as needed. Orders all investigative reports as required for a new hire,
completes I-9 and New Hire Reports. Provides orientation to new employees.
Prepares personnel folders and places all documents concerning each employee in
said folder in a timely manner (i.e., insurance docs. W-4, leave requests, certificates
of training, key and door code paperwork, wage agreements, probation and
paperwork and exist letters; notification of any increase in insurance premiums and
salary increases). Tracks and maintains records of attendance. Keeps confidential
personnel files up to date.
Prepares letters of acknowledgement regarding interviews and applications
received for job applicants. Keeps files of previous interviews, applications, and
previous employee records.
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Ensures that the Village is in compliance with all Federal, State and OSHA
requirements for mandatory posting of all State labor laws and State and Federal
notices.
Places newspaper ads for employment and legal advertisements in the time frame
required by State Statute and prepares the monthly schedule of meetings (to be
posted 10 days prior to the first meeting held in the following month).
Oversees the processing of an updated inventory list for the VOT, MVD, Senior
Center and Fire Department.
Keeps vendor and organization files up to date for VOT, FD and EMS.
Keeps the log of key issuance and door code data to outside mail boxes and to staff
up to date.
Arranges for required inspections of fire extinguisher, fire riser room and alarms.
Provides the NMSIF with updated information regarding any needed coverage of
additional property.
Creates water user files consisting of meter installation fee payment, s/n of meter
installed, and any other documentation required.
Keeps VOT resident information list consisting of address, mailing address,
telephone number up to date. Ensures that secretary has all information regarding
resident or renter for purposes of mailings and emergency notifications.
Submits to the Mayor several catalogs from which to choose a designated
Christmas card and greeting/salutation from the Village of Tijeras and then places
the Christmas Card order. Reviews mailing list for any obvious deletions and/or
additions and that the Mayor is provided with the list for approval before any cards
are mailed. Coordinates the Christmas party held in early December for Village
staff, FD, EMS, Council and Commissioners. Oversees placement of Christmas
decorations and XMAS Party table set up. Organizes the disbursal of the food signup sheet for the party. Purchase of supplies and clean-up.
Assists in coordinating the “Lighting of the Christmas Tree” and reception with
refreshments and music at the Luis Garcia Park.
Researches and submits information regarding VOT monthly planners, compact
diaries and pens for the annual VOT order and dispersal.
Updates water and sewer user files. Keeps documentation of pending new water
hook up agreements, declaration of water rights documents, etc.
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Arranges for lodging accommodations for Fire Department and EMS staff as
required.
Completes per diem request for Fire Department, EMS staff and other per diem
requirements as needed.
Maintains file of Fleet vehicle gasoline cards issued for VOT, FD and EMS, and
any updates in order to process fleet invoices for gasoline purchases.
Oversees the custodians and their cleaning/maintenance schedules.
Is responsible for completing the MVD deposit paperwork on a daily basis when
bookkeeper is not available.
Is responsible daily, for verifying MVD closing cash and check amounts and assists
in verifying and/or verifies deposit amounts when Bookkeeper is not available.
Responsible for creation of new and upkeep of: P & Z Resident and Business
Zoning files. Enters information in the Zoning application log. Provides applicant
with proper documents and explains requirements and date required for submission
for an appearance before the Zoning Commission. Same as above for business
registration.
Ensures that resident and/or business Zoning files include updated information
regarding Council and Zoning related appearances and determinations.
Is responsible for keeping a schedule regarding rental of the Chambers, Visitor
Center, Church and Park, completing documents and receiving payment and
disbursing refunds. Submits information to Secretary for her coordination of the
actual physical requirement for each rental (i.e., personnel availability, items
needed, time in and out).
Assists in coordinating the Bernalillo County early election requirements: polling
location located in the Village Council Chambers (i.e., coordinating lock changes,
arranging for use of the Visitor’s Center as the meeting location during the
occupation by the BERNCO Early Election personnel.
Orders any uniforms and/or shirts with the Village Logo required by staff and/or
Council/Commissioners and Mayor.
Assists with documentation and notifications pertaining to annexations, variances,
abutting property owner, and permits required. Also ensures that required
notifications are made by certified return receipt mail.
Retains Council, P & Z, Special Workshop, Budget, Closed and Emergency
meeting prep files based on the record retention schedule published by the State
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Records Center and Archives. Destruction of public records shall only be done at
the direction of the governing body of the municipality. These records should be
reviewed and considered for “Historical Value” and retained in a “historical
documents” file upon finding they meet such criteria. The Clerk shall then request
permission to destroy those records that have served their purpose and are no longer
necessary.
Performs research for historic documents and events taking place prior to current
Clerk/Council/Mayor.
Performs such other duties consistent with the office of the Mayor, Clerk/Treasurer
and/or the Governing Body.
PROBATIONARY PERIOD:
Six (6) months.
Doc. 151-2 at 1-6. In addition to the Deputy’s Clerk’s written job description, Mayor Chavez
testified that Plaintiff’s duties as Acting Clerk and Deputy Clerk included (a) managing Village
staff; (b) overseeing the day-to-day operating of the Village; (c) making sure Village ordinances
were enforced; (d) overseeing the billing for the Village’s water utility; and (e) interacting with
the public on behalf of the Village. Doc. 125 at 3, ¶ 1.
The parties do not dispute the job descriptions as set forth above. Instead, their dispute
turns on whether the Deputy Clerk position, as described above, constitutes a politically
sensitive, policymaking position. Plaintiff argues the Deputy Clerk position is primarily
“ministerial.” The Individual Defendants disagree. They argue the job descriptions squarely
involve the Deputy Clerk with most facets of Village government such that the position is one of
influence and who shapes policy; that the job descriptions effectively designate the Deputy Clerk
as the Human Resources/Personnel Director with extensive personnel and supervisory
responsibilities; that the job descriptions task the Deputy Clerk with performing broad duties
related to election laws, procurements, and property-related notifications and documentation, all
of which require a “high level of education, training and experience”; and that the job
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descriptions reflect the Deputy Clerk acts as “spokesperson” for the Village. The Individual
Defendants further argue that the final catchall task from the written job description of
performing “such other duties” renders Plaintiff’s job discretionary, vague and broad. Last, the
Individual Defendants argue that the Deputy Clerk is an exempt position and note that it is the
second highest paid position in Village government. The Court addresses the Individual
Defendants’ arguments in turn.
To begin, the Court finds that none of the tasks as described above, though arguably quite
varied, reflect that the Deputy Clerk has the authority to formulate Village plans, nor do they
support that the Deputy Clerk meaningfully participates in government decision-making on
issues where there is room for principled disagreement on goals and their implementation. See
Elrod, 427 U.S. at 368; Ortiz, 955 F.Supp. at 1345-46. To the contrary, the tasks from the
written job description reflect many discrete responsibilities with limited and well-defined
objectives. See Elrod, 427 U.S. at 368.
Moreover, even where the Deputy Clerk’s job as actually performed leaves the written
page, the tasks remained well-defined. For example, Mayor Chavez and Plaintiff testified that as
Deputy Clerk Plaintiff managed up to five employees. However, her “management” was limited
to keeping track of attendance, ensuring coverage for absent employees, gathering timecards and
adding up employee hours at the end of pay periods, identifying concerns about employee
performance, and recommending disciplinary action to the Mayor. Plaintiff did not have the
authority to take disciplinary action, nor she did have the authority to hire or fire employees.
Further, there is no evidence that Plaintiff was involved in any policy or decision-making with
respect to personnel matters. See Martinez v. Rio Arriba County, No. 04-CV-612, 2006 WL
8443779, at *2 (D.N.M. Aug. 9, 2006) (finding that political allegiance was an appropriate job
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requirement where human resource director’s inherent powers and actual duties included, inter
alia, planning, coordinating and directing personnel functions, including personnel policies and
procedures, personnel records and contracts, classification and compensation studies; ensuring
compliance with all personnel policies and procedures and with state and federal law that related
to hiring; assisting with recruitment and selection process; assisting departments and/or
screening committees on proper interviewing and screening procedures; recommending revisions
to the personnel handbooks for County Commission approval; being responsible for personnel
grievances, including legal consultation and writing related reports and correspondence;
responsible for all complaints filed with the courts or state or federal agencies; advising the
county manager and other directors on personnel matters; and reviewing with county legal
counsel and the county manager all personnel and human resource matters); see also Assaf v.
Fields, 178 F.3d 170, 179 (3rd Cir. 1999) (finding that managerial or supervisory authority, by
itself, does not suffice to bring a position within the exception allowing termination of a public
employee because of political affiliation). As such, the Court does not see Plaintiff’s human
resource tasks as imbued with the extensive responsibility and discretionary authority the
Individual Defendants assert.15 See Elrod, 427 U.S. at 368-69 (finding chief deputy who
15
The Individual Defendants contend that the Deputy Clerk’s maintaining of confidential personnel files renders her
position politically sensitive. The Individual Defendants’ contention is misplaced. It is the confidential character of
the position to which the courts look, i.e., whether the position involves working or advising on confidential and
politically sensitive matters. See Barker v. City of Del City, 215 F.3d 1134, 1136-38 (10th Cir. 2000) (citing cases
where confidential character of position makes political affiliation an appropriate job requirement); see also Garza v.
Escobar, 972 F.3d 721, 729 (5th Cir. 2020) (A government employee may be “confidential” “if he or she stands in a
confidential relationship to the policymaking process, e.g., as an advisor to a policymaker, or if he or she has access
to confidential documents or other materials that embody policymaking deliberations and determinations, e.g., as a
private secretary to a policymaker.”); Carlson v. Gorecki, 374 F.3d 461, 466 (7th Cir. 2004) (“Access to confidential
information alone, however, does not mean that the job is confidential for purposes of applying the confidential
employee exception to the ban on patronage dismissals.”); Jantzen v. Hawkins, 188 F.3d 1247, 1256 (10th Cir. 1999)
(discussing whether employees “were such important communicators or were privy to confidential information to
such an extent that political loyalty would be an appropriate job requirement”).
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supervised all departments of sheriff’s office was a nonpolicymaking individual); see also
Poindexter, 548 F.3d at 920 (finding political loyalty could be taken into account where county
road foreman’s duties included, inter alia, supervising district employees, supervising inmates
working within the district, and terminating employees for cause) Snyder, 354 F.3d at 1186
(finding city treasurer position involved policymaking where she had, inter alia, authority to set
the City’s employment policy, including whom to hire for treasurer’s office); Dickeson, 844 F.2d
at 1443-44 (finding head jailer who housed and fed prisoners, prepared work schedules for other
jailers, and planned, ordered and prepared food was nonpolicymaker); Ortiz, 955 F. Supp. at
1345-46 (finding county maintenance supervisor who supervised four employees, prepared work
schedules, ordered supplies, inspected building and conducted repairs, and prepared maintenance
department budget was not properly subject to political patronage dismissal).
Similarly, the Individual Defendants have failed to show how Plaintiff’s actual
responsibilities with respect to the budget, which involved her making a template that contained
the budgeted amounts from the previous fiscal year and inserting the year-to-date expenditures in
each budget category, required that she allot resources or make budgetary decisions, as opposed
to carrying out a limited and well-defined task. Ortiz, 955 F. Supp. at 1345 (finding that county
maintenance supervisor who took figures from prior year and added ten percent in drafting
department’s budget was not required to make judgments about the allotment of scarce
resources).
Next, the Individual Defendants argue that the Deputy Clerk’s duties are broad and
politically sensitive because they require a “high level of education, training and experience.”
This is not supported by the evidence. The job description explicitly describes the education and
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experience required for the position of Deputy Clerk, i.e., a high school diploma or GED and one
to two years of city/business administration or secretarial experience. Dc. 151-2 at 1. Further,
the tasks the Individual Defendants cite to support their argument are taken out of context and
mischaracterized. For instance, the job description states that the Deputy Clerk “[m]ust be
familiar with the State Election Laws and Statutes pertaining to the Village Clerk’s functions.”
Id. (emphasis added). The Individual Defendants assert this demonstrates the Deputy Clerk must
have a broad understanding of election laws, but a plain reading shows that the required scope of
understanding is limited. And the only other reference in the job description related to elections
is that the Deputy Clerk will assist in coordinating the Bernalillo County early election
requirements by arranging for use of the polling location located in the Village Council
Chambers. Id. at 5. The Individual Defendants state that the Deputy Clerk must have
knowledge of State and Federal requirements regarding legal postings, but in doing so overstates
the Deputy Clerk’s tasks which in large part are focused on the physical posting of certain
notifications.16 The Deputy Clerk’s procurement responsibilities are defined as assisting the
Clerk as “acting procurement person” for all Village locations and involves creating and issuing
purchase orders, compiling necessary quotes, and ensuring that the minutes containing Council
approval accompany the purchase orders. Id. at 3. On its face, therefore, the Deputy Clerk,
when assisting the Clerk as “acting procurement person,” prepares the paperwork to reflect
procurement decisions already made by the Village Council. As such, there is no broad
decision-making or technical expertise inherent in this task. Additionally, the Individual
16
The job description requires that the Deputy Clerk “[p]laces legal postings and confirms same as required by State
Statute and the Village of Tijeras Open Meetings Act Resolution” and “ensures that the Village is in compliance with
all Federal, State and OSHA requirements for mandatory posting of all State labor laws and State and Federal notices.”
Doc. 151-2 at 2, 4. There is nothing in the job description indicating these tasks require knowledge of the law or even
an understanding of the substance of the postings themselves.
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Defendants have failed to offer any evidence how the Deputy Clerk’s assisting with
documentation and notifications pertaining to “annexations, variances, abutting property owner
and permits” is broad or open ended in the context of policy or decision-making or requires
greater education and experience than stated in the job description.
The Individual Defendants next argue that the Deputy Clerk position is politically
sensitive because the Deputy Clerk acts as a spokesperson for the Village by interacting with and
answering questions from Village residents. This argument is overstated. The Individual
Defendants have presented no evidence that the Deputy Clerk speaks on behalf of the Village at
Village Council meetings, civic events or social functions or serves as the Village’s ambassador
to the community. See Barker, 215 F.3d at 1136; Poindexter, 548 F.3d at 920; Aiken, 134
F.Supp.2d at 1222. They have presented no evidence that the Deputy Clerk reports to or is
required to maintain independent relationships with the Village Council members or other
elected officials for the sake of conducting or promoting Village business. See Barker, 215 F.2d
at 1136; Martinez, 2006 WL 8443779, *2. The Individual Defendants have presented no
evidence that the Deputy Clerk represents the Village on boards, commissions and community
organizations. See id. In sum, the Court is not persuaded that the Deputy Clerk’s customer
service role with Village residents who come to the Village Hall with questions rises to the level
of spokesperson or someone who promotes Village policies as reflected in the relevant case law.
Last, the Individual Defendants argue that the Deputy Clerk position is politically
sensitive because it is exempt from the Village Personnel Ordinance and is the second highest
paid position in Village government. It is undisputed from the job description that the Deputy
Clerk position was non-exempt at the time Plaintiff was hired in 2011 and through July 2019.17
17
The Village of Tijeras Personnel Ordinance identifies the following positions as exempt: Village Clerk, Village
Treasurer, Part-time employees, and all temporary and seasonal employees. Doc. 83-2 at 32.
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See Salazar, 1996 WL 134913, at *2-3 (finding that it can be inferred that classified positions are
exempt from political patronage dismissal). It is disputed, however, whether Plaintiff became an
exempt employee when the position was converted to a salaried position in July 2019. It is
undisputed that the Deputy Clerk is the second highest paid position in Village government as of
July 2019.
Based on the standard of review applicable at summary judgment, the Court must draw
every reasonable inference in favor of the nonmovant. Further, the burden of proving that
political affiliation is an appropriate requirement for the effective performance of the position at
issue is on the public employer and “[i]n close cases, doubt should be resolved in favor of the
public employee subject to the dismissal.” Dickeson, 844 F.2d at 1442. There being no dispute
in this case as to the nature of the Deputy Clerk’s duties, the Court finds that the Individual
Defendants have failed to carry their burden of proving that “party affiliation is an appropriate
requirement for the effective performance” of Deputy Clerk. Branti, 445 U.S. at 518. To the
contrary, the Court finds as a matter of law that the record here demonstrates that the Deputy
Clerk was not a policymaker or such an important communicator and privy to confidential
information to such an extent that political loyalty would be an appropriate job requirement. See
Barker, 215 F.3d at 1138; Jantzen, 188 F.3d at 1256; see also Ortiz, 955 F. Supp. at 1346
(finding county maintenance supervisor was not properly subject to political patronage dismissal
even though parties disputed non-exempt and exempt status of plaintiff’s position); Zold v.
Township of Mantua, 935 F.2d 633, 639 (3rd Cir. 1991) (explaining that there is no basis to
35
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assume that an employee hired at-will who can be fired for any or no reason can be fired for a
constitutionally prohibited reason).18
Moreover, case law from other circuits have reached the same conclusion. See Lawson v.
Union County Clerk of Court, 828 F.3d 239, 249 (4th Cir. 2016) (holding that it could not
conclude that deputy clerk of court position required party affiliation where duties included
administrative and ministerial tasks, such as keeping records and managing court accounts,
overseeing intake, receiving filing fees, collecting and disbursing funds, and tracking and
reporting court data ); Caudill v. Hollan, 431 F.3d 900 (6th Cir. 2005) (finding patronage
dismissal of county deputy clerks with routine duties violates the U.S. Constitution); Zold, 935
F.2d 633 (finding defendants had failed to carry their substantial burden of demonstrating that
political affiliation is an appropriate requirement for the effective performance of the deputy
township clerk).
B.
Qualified Immunity
At the time the Individual Defendants voted to terminate Plaintiff’s position, the right to
not be terminated based on political affiliation with a prior administration was clearly established
in both Supreme Court and Tenth Circuit case law. See Walton, 49 F. Supp.3d at 987 (collecting
cases). The Individual Defendants argue, however, that Walton fails to address the extensive
duties and role of the Deputy Clerk position and does not inform the Court on the sui generis,
multifactorial nature of whether that position is politically sensitive such that it leads to qualified
immunity.
18
Questions of fact remain whether Defendants terminated Plaintiff for her political association. See the Court’s
Memorandum Opinion and Order filed concurrently herewith finding moot in part and denying in part Defendants’
Motion for Partial Summary Judgment Against WPA and First Amendment Claims (Doc. 144).
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The Court rejects the notion that there must be a separate patronage dismissal decision by
the Supreme Court or the Tenth Circuit involving a particular position before qualified immunity
can be denied in such a case. The Sixth Circuit, in McCloud v. Testa, 97 F.3d 1536, 1556 (6th
Cir. 1996), explains:
The lack of specific precedent holding that a particular position is outside the Branti
exception is a necessary condition to arguing that the First Amendment right to be
free from patronage dismissal is unclear as to a particular position, but the lack of
such precedent is not a sufficient condition for concluding that the law is unclear
on the subject and so qualified immunity must be granted to a defendant. As the
Supreme Court has cautioned when considering its difficult qualified immunity
jurisprudence, “This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful . . .
.” Anderson, 483 U.S. at 640. . . . It simply cannot be true that there must be a
specific patronage dismissal case in the Supreme Court or Sixth Circuit before
qualified immunity can be denied to any otherwise eligible defendant in such a case.
If this were true, qualified immunity would be converted into a nearly absolute
barrier to recovering damages against an individual governmental actor in
patronage cases because the reported case law classifies new positions very slowly.
Id.
With this in mind, the Court finds that cases from the Supreme Court and the Tenth
Circuit, and the clearly-established weight of authority from other courts, have made sufficiently
clear that a reasonable official in 2020 would understand and be aware that terminating Plaintiff
from her position as Deputy Clerk, based on her described duties and as actually performed, was
a violation of her First Amendment right to political association. To begin, the Court has cited
above well-established circuit cases specific to the position at issue here where courts have held
that patronage dismissal of deputy court clerks, deputy county clerks, and a deputy township
clerk violates the U.S. Constitution. See Seamons, 84 F.3d at 1238. Additionally, Supreme
Court and Tenth Circuit case law, and its application in cases in this district, have also held that
patronage dismissal of similar types of positions violated the U.S. Constitution. See Elrod, 427
U.S. at 373 (finding that chief deputy of process division was not a policymaker); Jantzen, 188
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F.3d at 1256 (finding deputy sheriffs were not policymakers); Dickeson, 844 F.2d at 1443
(finding head jailer and special deputy were not policymakers); and Ortiz, 955 F.Supp. at 1346
(finding county maintenance supervisor was not a policymaker)
Next, Supreme Court and Tenth Circuit case law, and its application in cases in this
district, have clearly defined the inquiry for making a reasoned determination of whether party
affiliation is an appropriate requirement for the effective performance of the public office
involved. See Elrod, 427 U.S. at 368 (explaining that employees with responsibilities that are
not well defined or are of broad scope more likely functions in a policymaking position and that
consideration should also be given to whether the employee acts as an advisor or formulates
plans for implementation of broad goals); Poindexter, 548 F.3d at 920 (“[i]n determining
whether a position appropriately requires political allegiance, we focus on the inherent powers of
the position and the actual duties performed”); Snyder, 354 F.3d at 1185 (determining whether
political allegiance is a proper job requirement calls for an analysis of the nature of the
employee’s duties and responsibilities; the nature of the responsibilities is critical; an analysis of
the whole picture is necessary); Barker, 215 F.3d at 1137-38 (explaining 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 which requires analyzing
“the nature of the employee’s duties and responsibilities”); Jantzen, 188 F.3d at 1253 (explaining
that to determine whether political loyalty is an appropriate requirement, we must analyze “the
nature of the employee’s duties and responsibilities” and to be more precise, we must focus on
the actual duties performed); Dickeson, 844 F.2d at 1441 (explaining that any analysis must
necessarily begin with the inherent powers of the office at issue); Aiken, 134 F.Supp.2d at 1222-
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23 (explaining that factors for determining whether a position involves policymaking include
whether employee is exempt from civil service protection, is authorized to speak in the name of
the policymakers, influences government programs, has contact with elected officials, is
responsive to partisan political leaders, whether the individual has broad and vague
responsibilities, and relative pay); Ortiz, 955 F.Supp.at 1344 (finding persuasive an inquiry of
whether the position held by the individual authorizes, either directly or indirectly, meaningful
input into government decision-making on issues where there is room for principled
disagreement on goals or their implementation); Salazar, 1996 WL 134913, at *2-3 (finding that
it can be inferred that classified positions are exempt from political patronage dismissal).
Additionally, Supreme Court and Tenth Circuit case law, and its application in cases in
this district, have provided clearly-established guideposts for analyzing the various Deputy Clerk
tasks relied on here by the Individual Defendants to determine whether they reflect
policymaking. For instance, in Elrod, the plurality referred to the importance of political
affiliation with respect to advisors, and that several courts have listed involvement in personnel
and budgetary matters as important factors in determining the applicability of the Branti-Elrod
exception to political patronage. Here, however, as previously discussed, there is no evidence
that Plaintiff served in a confidential advisory position.19 It is also clear that Plaintiff’s level of
involvement in personnel and budgetary matters was well-defined and limited, that she did not
have extensive supervisory or discretionary authority over employees, and that she did not make
judgments regarding allotments of budgetary resources. Further, it is clear from the case law that
managerial or supervisory authority, by itself and in the absence of discretionary authority, does
19
See fn. 15, supra.
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not suffice to bring a position within the exception allowing termination of a public employee
because of political affiliation. See Dickeson, 844 F.2d at 1441; Ortiz, 955 F. Supp. at 1345-46.
The same holds true with respect to determining when a position is confidential in nature,
is open ended and vague, or reflects the activities of a spokesperson. See Barker, 215 F.3d at
1136-38 (explaining that the confidential character of a position turns on whether the position
involves working on confidential and politically sensitive matters); Jantzen, 188 F.3d at 1256
(explaining that determining confidential nature of position asks whether employees “were such
important communicators or were privy to confidential information to such an extent that
political loyalty would be an appropriate job requirement”); Elrod, 427 U.S. at 368 (explaining
that “[e]mployee supervisors, for example, may have many responsibilities, but those
responsibilities may have only limited and well-defined objectives”); Aiken, 134 F.Supp.2d at
1222 (finding plaintiff’s job description was vague and open ended because it was “not as
succinct as it could be”); Barker, 215 F.3d at 1136 (acts as spokesperson when acting on city
manager’s behalf at city council meetings and city, civic, and social functions); Aiken, 134
F.Supp.2d at 1222 (acts as spokesperson where engages in lobbying activities and communicates
county commissioner positions); Martinez, 2006 WL 8443779, *1-2 (acts as spokesperson when
representing county on boards, commissions and community organizations).
In sum, the Court finds that the Individual Defendants were on notice that Plaintiff’s
supervisory responsibilities of keeping attendance, maintaining timecards, arranging for
coverage, and notifying the Mayor of employee performance and/or personnel ordinance
violations did not render her a policymaker; that her access to confidential personnel files did not
make her position confidential for purposes of applying the confidential employee exception to
the ban on patronage dismissals; that the presence of a perfunctory catchall phrase “perform such
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other duties” in the Deputy Clerk job description on the heels of forty-eight well-defined and
limited tasks did not transform the Deputy Clerk job description into one that is vague and
open-ended; and that Plaintiff’s duties of answering questions from residents who walk in to the
Village Hall did not rise to the level of being a spokesperson for the Village.
Finally, while Plaintiff’s exempt or non-exempt status and her salary are arguably factors
to consider, they are not vital to the clearly-established and central inquiry to which the
Individual Defendants were on notice for determining whether political association is an
appropriate requirement for the effective performance of the public office involved, i.e., the
nature of the employee’s duties and responsibilities.
Accordingly, because a reasonable official, based on Supreme Court, Tenth Circuit, and
the clearly-established weight of authority from other courts, would know that Deputy Clerk with
the job description and duties as described herein is not a policymaking position and that party
affiliation is not an appropriate requirement for the effective performance of the job, the Court
finds that the contours of the right not to be terminated on the basis of political patronage were
“sufficiently clear that a reasonable official would understand that what he [or she] is doing
violates that right” at the time the Individual Defendants terminated Plaintiff. Anderson, 483
U.S. at 640. For this reason, the Court finds that the Individual Defendants are not entitled to
qualified immunity.
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VI. CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion for Partial Summary
Judgment On All Federal Claims, Doc. 125, is DEFERRED IN PART AND DENIED IN
PART.
__________________________________________
JOHN F. ROBBENHAAR
United States Magistrate Judge
Presiding by Consent
42
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