Governor’s Aide Cannot Sue for Title VII Violation

Friday, November 9, 2007

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Governor’s Aide Cannot Sue for Title VII Violation—Court

By KENNETH OFGANG, Staff Writer

A federal statute allowing some state and local government employees to sue for employment discrimination does not apply to members of a governor’s staff who are responsible for formulating and communicating policy, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Congress did not have sufficient cause to strip states of their prior immunity from suits by persons in such politically sensitive positions, Senior Judge John T. Noonan explained for the court, so the Government Employee Rights Act of 1991 violates the Eleventh Amendment to the extent it purports to do so.

The ruling, by a divided panel, overturns an order by the Equal Employment Opportunity Commission remanding the claims of two former Alaska employees to an administrative law judge. The commission made the order after determining it did not have jurisdiction to decide the constitutional issues in the case, which has its genesis in Alaska’s turbulent politics of the 1990s.

It was in 1990 that a former governor, Walter Hickel—who had resigned as the state’s chief executive more than 20 years earlier to become secretary of the Interior in Richard Nixon’s cabinet—was returned to the governorship. Hickel was elected on the Alaska Independence Party after many Republicans rejected the party’s nominee.

Hickel accepted the AIP nomination despite his disagreement with the party’s advocacy of secession, and also agreed to take Jack Coghill, who had won the Republican primary for lieutenant governor but dropped off the ticket to run with Hickel on the AIP ticket, as his running mate.

In deference to Coghill, Hickel named several of the lieutenant governor’s allies to his staff, including Margaret Ward and Lydia Jones. Ward was named director of the governor’s Anchorage office and Jones a special staff assistant under Ward. Job descriptions for the two positions, both of which were exempt from the state’s civil service laws, explicitly stated that the employees’ duties included assisting constituents and advancing the governor’s policy agenda.

Relations between the governor and lieutenant governor soured, however, as Hickel eventually moved back to the Republican Party while Coghill made plans to run for the top job. (Coghill got 13 percent of the vote as the AIP candidate in 1994, as Democrat Tony Knowles won by a narrow margin.)

Suspecting that Ward and Jones were surreptitiously working for Coghill’s campaign, the governor’s chief of staff warned them against any such involvement. After the two held a press conference to criticize Hickel, they were placed on administrative leave and eventually fired.

Ward and Jones later filed complaints with the EEOC. Ward alleged that she was the victim of sex discrimination and retaliation, while Jones, an African American, said she was the victim of race and sex discrimination and had been sexually harassed by another staff member.

An administrative law judge ruled that he lacked jurisdiction to rule on the state’s Eleventh Amendment objection to the proceedings and referred it to the EEOC, but the commission said it lacked such jurisdiction and sent the case back to the ALJ, prompting the state’s appeal to the Ninth Circuit, which concluded that it had jurisdiction under the unusual circumstances.

Noonan, writing for the court, explained that in passing GERA in 1991, Congress acted on the basis of a legislative record showing that discrimination against state and local government employees was a significant problem. But there were no findings with regard to discrimination against employees on governor’s staffs, he said.

Under Title VII, as enacted in 1972, public entities were immune from suits by their officers, by “any person chosen by such officer to be on such officer’s personal staff” and employees “on the policymaking level” or serving the official as “an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.”

The Supreme Court, Noonan explained, has held that the Eleventh Amendment, which literally protects a state only against a “suit in law or equity, commenced or prosecuted...by Citizens of another State” in federal court, provides broader immunity to states, including immunity against actions by federal agencies on behalf of individuals, including citizens of the same state.

In some circumstances, the judge elaborated, that immunity must give way to paramount individual interests identified by Congress pursuant to the Fourteenth Amendment’s Enforcement Clause. “The Fourteenth thus trumps the Eleventh if Congress legislates to enforce the Fourteenth and the legislation is appropriate,” he wrote.

Allowing members of the governor’s staff to sue the state is not appropriate, Noonan concluded.

He wrote:

“No modern governor could run his government without the assistance of the sort provided in Alaska by the Director of the Governor’s Office in Anchorage and by the Special Staff Assistants. Being a governor is not a one-person job. The governor acts by his policymaking assistants. To treat these assistants as subject to federal legislation is tantamount to holding that the highest elected official in a state is bound by GERA. We do not believe that GERA is a proportionate response to a widespread evil identified as the predicate of this legislation.”

Senior Judge J. Clifford Wallace, concurring separately, said that Congress could have attempted a showing of the need to apply GERA to the policymakers it exempted from the 1972 act, but failed to “take the time for hearings to develop an appropriate record” and that “failure to do so here requires the conclusion that the constitutional protections on state sovereign immunity have not been met.”

Judge Richard A. Paez, dissenting, argued that there was a sufficient record before Congress to abrogate Eleventh Amendment immunity as to claims by members of policy staffs.

“[G]iven the deference we owe to Congress when it exercises its [Enforcement Clause] authority, it was entitled in enacting GERA to rely on the extensive evidence from 1972 of widespread race and gender-based discrimination by the States against their employees,” the judge wrote. “Further, because Congress’ 1972 decision to exempt the state employees now covered by GERA appears to have been based not on a lack of evidence of discrimination but on political considerations, and because neither the Supreme Court nor our sister circuits have parsed more finely evidence of state constitutional violations, we must infer that the across the board findings of employment discrimination encompassed these state employees.”

The case is State of Alaska v. Equal Employment Opportunity Commission, 07-70174.