Tuesday, February 14, 2012
Panel Rejects Retaliation Appeal by Former Carona Opponent
By KENNETH OFGANG, Staff Writer
Former Orange County Sheriff Michael Carona has qualified immunity from a suit by a former sheriff’s lieutenant who was demoted after he challenged Carona’s 2006 reelection bid, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel concluded, 2-1, that William Hunt was not a “policymaker” for the Sheriff’s Department, and that he was therefore protected from retaliation for the exercise of his First Amendment rights. But the majority agreed with county lawyers that Carona could not have known, under the state of the law at the time, that Hunt’s role as chief law enforcement officer in the City of San Clemente would not be considered a policymaking position.
A concurring judge said Hunt was a policymaker and was not protected from retaliation.
Hunt finished second to Carona in the June 6, 2006 election, but the incumbent finished with 50.9 percent of the vote to Hunt’s 26.5 percent, avoiding the need for a runoff election.
The day after the primary, the department placed Hunt on administrative leave in order to conduct a personnel investigation into his conduct during the campaign. Following the service of a notice of pending demotion on Oct. 31 and a pre-disciplinary hearing, the department demoted Hunt on Dec. 22 to the rank of “Deputy Sheriff II” and relieved him as police services chief for San Clemente, which contracts with the county for the sheriff’s services.
Hunt alleged in his complaint that the demotion, which reduced his annual salary, benefits and prospective retirement compensation, subjected him to “intolerable and discriminatory working conditions” and changed conditions of employment, as well as professional humiliation and indignity. He sought monetary damages in excess of $72,979.00 per year and reinstatement to his post.
The department in its notice of pending demotion had accused Hunt of violating the department’s policy of fostering public support and citizen cooperation, and of failing to maintain his duty of loyalty as an officer. It claimed Hunt had allowed his ego and disgruntled feelings to overcome his professionalism and loyalty to the department and his superiors, and said his conduct demonstrated a willingness to slander, undermine, and damage the department for the sole purpose of gaining office.
Hunt was criticized for describing the sheriff as a failed leader, labeling him the source of the department’s problems, and calling the department’s leadership “a laughingstock.”
The case went to trial before U.S. District Judge Margaret M. Morrow, who asked the jury to answer 37 interrogatories with respect to the nature of Hunt’s responsibilities. Jurors found, among other things, that Hunt did not have discretion to formulate OCSD policy for San Clemente, did not play a role in formulation of overall department policy, and did not have authority to speak to the media without clearing his remarks with higher-ranking officials.
Jurors also concluded, however, that Hunt substantially influenced department policy affecting San Clemente and had discretion in how to implement policy in San Clemente within the general framework provided by the department.
Morrow ruled that Hunt was a policymaker, and that Carona was entitled to judgment as a matter of law. She also granted judgment on the alternative ground of qualified immunity.
But Judge Kim M. Wardlaw, writing for the Ninth Circuit, said that Hunt did not occupy a position for which political loyalty was a qualification, and emphasized that the “policymaker” rule is a narrow exception to the Supreme Court’s holding that public employees may not be disciplined for exercising their First Amendment rights.
Morrow, the jurist said, misapplied the factors that the Ninth Circuit laid out for determining policymaker status in Fazio v. City and County of San Francisco, 125 F.3d 1328 (9th Cir. 1997).
“The jury’s findings of fact suggest that at least three Fazio factors—vague or broad responsibilities, authority to speak in the name of policymakers, and influence on programs—strongly indicate that Hunt was not a policymaker.”
Hunt was, Wardlaw acknowledged, the primary person with whom San Clemente officials interacted with respect to law enforcement issues. But the jurist said that did not, in and of itself, make him a policymaker, since he “was at all times bound by department policy that was set by his superiors and over which he had little, if any, control or influence.”
His role, she said, was “administrative” rather than “political,” as further indicated by the fact that he and Carona “hardly spoke.”
But the sheriff is still entitled to judgment, Wardlaw said.
“We conclude, like the district court, that Carona could have reasonably but mistakenly believed that Hunt’s demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente,” the judge said.
‘Although Hunt’s position had no department-wide policymaking responsibility, influence, or control, as the jury found, Hunt exercised discretion over the implementation of OCSD policy within San Clemente, influenced OCSD policy as it affected San Clemente, and formulated plans to implement OCSD policy in San Clemente,” Wardlaw elaborated. “While Hunt had to secure authority before speaking with the public, when he did so, it was on behalf of the OCSD.”
Judge James C. Mahan, a district judge for the U.S. District Court for Nevada, sitting by designation, concurred in Wardlaw’s opinion.
Senior Judge Edward Leavy disagreed with Wardlaw’s policymaker analysis.
In his separate opinion, he argued that “Hunt was responsible forformulating plans to implement OCSD policy in San Clemente, had the ability substantially to influence OCSD policy in the City, spoke regularly with city elected officials and citizens on behalf of OCSD, and was perceived by the public as representing OCSD in San Clemente.”
Based on those facts, Leavy said, “Hunt was in a position for which political loyalty was an appropriate requirement and the “policymaker” exception applies.”
Neither Carona nor Hunt is still with the OCSD.
Carona is currently serving a 66- month term at a federal prison in Colorado and is scheduled for release in 2015, according to the Bureau of Prisons. He was charged with multiple counts of corruption in 2008, and acquitted of most of the charges, but found guilty of attempting to persuade then-Assistant Sheriff Donald Haidl to withhold testimony at a grand jury proceeding.
The conviction and sentence were affirmed by the Ninth Circuit, but a certiorari petition is pending in the U.S. Supreme Court.
Hunt retired from the OCSD and became a private investigator. He ran for sheriff a second time in 2010, losing to Carona’s appointed successor, Sandra Hutchens.
The case is Hunt v. County of Orange, 10-55163
Copyright 2012, Metropolitan News Company