1

Parrish, Wetzel and Lucas sued Nikolits under 42 U.S.C. §

1983 alleging that he violated their First Amendment rights to

free speech and association. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4807.

Barbara PARRISH, Dennis Wetzel, and Robert Lucas, PlaintiffsAppellants,

v.

Gary R. NIKOLITS, individually and in his official capacity as

the Property Appraiser of Palm Beach County, Florida, DefendantAppellee.

July 3, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-8322-CIV-KLR), Kenneth L. Ryskamp,

Judge.

Before CARNES and BARKETT, Circuit Judges, and DYER, Senior Circuit

Judge.

BARKETT, Circuit Judge:

Barbara Parrish, Dennis Wetzel and Robert Lucas appeal the

district court's grant of Gary Nikolits's motion for summary

judgment in both his individual and official capacities on their

claim that Nikolits violated their First Amendment rights by firing

them because they supported Nikolits's opponent in a recent

election.1

 Parrish, Wetzel and Lucas were longtime employees of

the Palm Beach County Property Appraiser's Office. Nikolits was

the newly-elected Palm Beach County Property Appraiser.

Insofar as Nikolits was sued in his official capacity, we

vacate the order granting summary judgment and remand because the

district court applied the wrong standard in determining that

Parrish, Wetzel and Lucas held positions in the Appraiser's Office
 2

In Florida, the office of the county property appraiser is

a constitutionally created office. See Fl. Const. Art. VIII, §

1(d). The county property appraiser is charged with "determining

the value of all property within the county, with maintaining

certain records connected therewith, and with determining the tax

that were susceptible to patronage dismissal. Insofar as Nikolits

was sued in his individual capacity, we affirm the grant of summary

judgment because the law was not clearly established that

dismissing Parrish, Wetzel and Lucas for political reasons violated

their First Amendment rights.

I. Facts & Procedural Background

Parrish was Human Resources Director, Wetzel was Information

Technologies Director, and Lucas was Manager of the Property

Analysis Section of the Palm Beach County Property Appraiser's

Office. During the 1992 election for county property appraiser,

all three supported the Democratic candidate against Nikolits, who

was the Republican candidate and ultimate winner of the race for

County Property Appraiser.

After his election, but before taking office, Nikolits

notified Parrish, Wetzel and Lucas, as well as five other

Appraiser's Office employees, that he planned to fire them because

they had not supported him in the elections. Parrish's attorney

sent Nikolits a letter stating that such action would violate

Supreme Court cases prohibiting patronage firings of non-political

public employees. Nonetheless, the day he took office, Nikolits

fired Parrish, Wetzel and Lucas, as well as the five other

employees.

Prior to Nikolits taking office in January, 1993, Rebecca

Walker was Palm Beach County Appraiser2 from 1982 to 1993.
on taxable property after taxes have been levied." Fla.Stat. §

192.001(3) (1977). "Property appraisers may appoint deputies to

act in their behalf in carrying out the duties prescribed by

law." Fla.Stat. § 193.024 (1980). Property appraisals are

carried out pursuant to state statute, see § 193.011 et seq.

Florida Statutes, as well as professional appraisal standards

established by the International Association of Assessing

Officers and the Appraisal Institute. 

Although Parrish, Wetzel and Lucas all had been promoted during

Walker's tenure, none of the three had been hired by Walker.

Parrish and Lucas had worked for the Appraiser's Office in various

capacities since 1976 and 1981, respectively. Wetzel had worked

for either the Appraiser's Office or Palm Beach County since 1970.

All three thus had been employees of the Appraiser's Office or Palm

Beach County through the terms of at least two county appraisers

prior to Nikolits taking office in 1993.

After Nikolits fired them, Parrish, Wetzel and Lucas sued

Nikolits in both his individual and official capacities, alleging

that he had violated their First Amendment rights by firing them

for supporting his political opponent in the campaign for Palm

Beach County Property Appraiser. Nikolits moved for summary

judgment. He first argued that Parrish, Wetzel and Lucas had

offered no evidence that they were fired for political reasons.

Alternatively, Nikolits argued that, because Parrish, Wetzel and

Lucas held policymaking positions, Nikolits did not violate their

First Amendment rights even if he fired them for political reasons.

The district court granted summary judgment in favor of

Nikolits on the latter ground, both in his individual and official

capacities. On the official capacity claim, the district court

determined as a matter of law that Parrish, Wetzel and Lucas were
 3

Justice Brennan wrote an opinion, joined by Justices White

and Marshall. Justice Stewart wrote a separate opinion

concurring only in the judgment that was joined by Justice

Blackmun. 

"policymakers" and that, as such, Nikolits did not violate their

constitutional rights even if he had fired them for political

reasons. On the individual capacity claim, the district court held

that, because the law was not clearly established that persons

holding positions similar to those held by Parrish, Wetzel, and

Lucas were "policymakers," qualified immunity applied and Nikolits

did not violate clearly established law of which a reasonable

person would have known in dismissing them for political reasons.

We affirm the order granting summary judgment in favor of Nikolits

insofar as he was sued in his individual capacity because the law

was not clearly established that dismissing Parrish, Wetzel and

Lucas for political reasons violated their First Amendment rights.

But we vacate and remand the summary judgment insofar as Nikolits

was sued in his official capacity because we find that the district

court applied the wrong standard in making that determination.

II. Analysis

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547

(1976), a newly-elected Democratic sheriff of Cook County,

Illinois, discharged certain non-civil service employees, including

the Chief Deputy of the Process Division, a bailiff/security guard,

and a process server, "because they did not support and were not

members of the Democratic Party and had failed to obtain the

sponsorship of one of its leaders." Id. at 351, 96 S.Ct. at 2678.

Writing for a three-judge plurality of the majority,3 Justice
Brennan reasoned that the practice of patronage dismissals "clearly

infringes First Amendment interests," and that

if conditioning the retention of public employment on the

employee's support of the in-party is to survive

constitutional challenge, it must further some vital

government end by a means that is least restrictive of freedom

of belief and association in achieving that end, and the

benefit gained must outweigh the loss of constitutionally

protected rights.

Id. at 362, 96 S.Ct. at 2685. Justice Brennan considered and

rejected the interest of ensuring effective government and

efficient public employees as an end that justified patronage,

concluding that patronage dismissals were not the least restrictive

means of achieving this end because public employees could be

discharged for insubordination or poor job performance when those

bases in fact exist. Id. at 364-67, 96 S.Ct. at 2685-86. Justice

Brennan also considered and rejected the interest of preserving the

democratic process and partisan politics, concluding that, because

"patronage [also] is an effective impediment to associational and

speech freedoms," "the gain to representative government provided

by the practice of patronage, if any, would be insufficient to

justify its sacrifice of First Amendment rights." Id. at 369-70,

96 S.Ct. at 2688 (emphasis added).

Justice Brennan finally considered the need for political

loyalty of employees to the end that representative government not

be undercut by tactics obstructing the implementation of policies

of the new administration. He reasoned that "[t]he justification

is not without force, but is nevertheless inadequate to validate

patronage wholesale." He went on to state that "[l]imiting

patronage dismissals to policymaking positions is sufficient to
achieve this governmental end." Id. at 367, 96 S.Ct. at 2687.

Justice Brennan thus acknowledged a limited exception for

policymaking positions to the general prohibition against patronage

dismissals. He expounded on the contours of the exception:

No clear line can be drawn between policymaking and

nonpolicymaking positions. While nonpolicymaking individuals

usually have limited responsibility, that is not to say that

one with a number of responsibilities is necessarily in a

policymaking position. The nature of the responsibilities is

critical. Employee supervisors, for example, may have many

responsibilities, but those responsibilities may have only

limited and well-defined objectives. An employee with

responsibilities that are not well defined or are of broad

scope more likely functions in a policymaking position. In

determining whether an employee occupies a policymaking

position, consideration should also be given to whether the

employee acts as an adviser or formulates plans for the

implementation of broad goals.

Id. at 367-68, 96 S.Ct. at 2687. Justice Brennan noted that the

governmental entity carried the burden of demonstrating an interest

sufficient to override an encroachment on the First Amendment

rights of a public employee, and that close cases should be

resolved in favor of the employee.

In a short concurring opinion, Justice Stewart reasoned that

the "single substantive question involved ... is whether a

nonpolicymaking, nonconfidential government employee can be

discharged or threatened with discharge from a job that he is

satisfactorily performing upon the sole ground of his political

belief." 427 U.S. at 375, 96 S.Ct. at 2690 (emphasis added).

Justice Stewart's concurrence thus limited First Amendment

protection to positions that were both nonpolicymaking and

nonconfidential.

Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574

(1980), was the first case in which the Supreme Court announced a
majority opinion on the issue of patronage dismissals. Branti

involved two assistant public defenders who were among six

threatened with dismissal from a staff of nine because they were

Republicans. The Court held that the dismissals would violate the

First Amendment. In so holding, the Court stated that

"[t]he 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."

Id. at 518, 100 S.Ct. at 1295.

Branti recognized that circumstances may exist in which "a

position may be appropriately considered political even though it

is neither confidential nor policymaking in character" but that

"party affiliation is not necessarily relevant to every

policymaking or confidential position." Id. at 518, 100 S.Ct. at

1294. Thus Branti recognized that a "policymaking" test would not

be appropriate for a state university football coach, for example,

even though he "formulates policy" in a sense, but such a test

would be appropriate for a nonpolicymaking gubernatorial assistant

hired to deal with political issues. Id.

With these principles in mind, we must determine whether, in

this case, the district court erred in concluding that Nikolits

legally could dismiss Parrish, Wetzel and Lucas. Although the

district court briefly cited Branti, it is clear from the district

court's order granting summary judgment for Nikolits that it

applied the standard set forth in Elrod, not Branti:

[T]he court finds that summary judgment is proper on the basis

that plaintiffs held policymaking positions. ... Patronage

dismissals of government employees holding policymaking

positions do not violate the First Amendment.... [I]n
 4

The court acknowledged that factual disputes existed as to

whether Parrish, Wetzel and Lucas held confidential positions,

but concluded that there was no factual dispute that Parrish,

Wetzel and Lucas held policymaking positions and that, as a

result, they were subject to patronage dismissal. 

determining whether an employee occupies a policymaking

position, consideration should be given to whether the

employee acts as an adviser or formulates plans for the

implementation of broad goals."

In so proceeding, the district court considered determinative the

fact that Parrish, Wetzel and Lucas were "policymakers."4

 Although the record reflects disputed material facts as to

whether Parrish, Lucas and Wetzel were policymakers, the district

court committed a more basic legal error. After Branti, "[t]he

ultimate inquiry is not whether the label "policymaker' or

"confidential' fits a particular position," rather it is whether

the hiring authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the public

office involved. Indeed, the former Fifth Circuit, shortly after

Branti was decided, interpreted Branti as "dismissing the labels

"confidential' and "policymaker' as irrelevant." See Barrett v.

Thomas, 649 F.2d 1193, 1200 (5th Cir. Unit A 1981).

 It is important to place to the side issues that should not

enter an analysis of determining whether party affiliation is an

appropriate requirement for the effective performance of a

particular position. The interest in ensuring effective government

and efficient government employees should not be a factor in

determining whether an employee is susceptible to patronage

dismissal. This is an interest that is appropriately addressed by

dismissals for insubordination or incompetence. In addition,
political affiliation or loyalty does not equate with confidence an

elected official may have in his or her employees. See Branti, 445

U.S. at 520 n. 14, 100 S.Ct. at 1295-96 n. 14. Similarly, high

salaries are not indicative of a position that requires a

particular party affiliation as government employees' pay should be

a reflection of competence, ability and experience, rather than a

reward for party affiliation.

 In reading Branti this way, we fall into line with those

circuits interpreting Branti as teaching that party affiliation

must be essential to effective performance of a position before an

employee holding that position can be susceptible to patronage

dismissal. See Dickeson v. Quarberg, 844 F.2d 1435, 1443 (10th

Cir.1988); Jones v. Dodson, 727 F.2d 1329 (4th Cir.1984). The

inherent powers and actual job responsibilities of the position

involved, and the relationship of the particular position to the

elected official, also should be part of the analysis. See Terry

v. Cook, 866 F.2d 373, 377-78 (11th Cir.1989); Ray v. Leeds, 837

F.2d 1542, 1544 (11th Cir.1988). We part ways with those circuits

that allow patronage dismissals in policymaking positions that do

not directly implicate partisan political concerns. See Jimenez

Fuentes v. Torres Gaztambide, 807 F.2d 236, 249-50 (1st Cir.1986);

Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.1985).

 In this case, the district court did not address how Nikolits

met his burden of demonstrating that party affiliation is an

appropriate requirement for the effective performance of the

positions at issue here, involving computers, appraisal standards

and personnel matters.
There is no evidence in the record as to whether the

Appraiser's Office, whose mission is to appraise property for tax

purposes based on formulae set by statute and professional

standards, even implicates partisan concerns in the first instance.

We conclude, in light of the current record, that summary judgment

insofar as Nikolits was sued in his official capacity must be

vacated.

 Insofar as Nikolits was sued in his individual capacity, the

district court granted him summary judgment on qualified immunity

grounds. See, e.g., Hill v. Dekalb Regional Youth Detention Ctr.,

40 F.3d 1176, 1184-85 n. 16 (11th Cir.1994) (explaining the

difference between individual capacity claims and official capacity

claims). The plaintiffs appeal that order, as well. Because "[a]

decision on qualified immunity is separate and distinct from the

merits of the case," Lassiter v. Alabama A & M Univ. Bd. of

Trustees, 28 F.3d 1146, 1151 (11th Cir.1994) (en banc), our

previous discussion does not dispose of the qualified immunity

issues in this case.

 The Supreme Court has explained that the policies behind the

qualified immunity defense dictate that it be decided as early as

possible in a case. See, e.g., Behrens v. Pelletier, --- U.S. ----

, ---- - ----, 116 S.Ct. 834, 838-40, 133 L.Ed.2d 773 (1996);

Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042

n. 6, 97 L.Ed.2d 523 (1987) ("[W]e have emphasized that qualified

immunity questions should be resolved at the earliest possible

stage of a litigation."). Accordingly, we turn to the district

court's order granting summary judgment to Nikolits in his
individual capacity on qualified immunity grounds.

 Once a public official or employee defendant raises a

qualified immunity defense, the "plaintiffs bear the burden of

showing that the federal "rights' allegedly violated were "clearly

established.' " Lassiter, 28 F.3d at 1150 n. 3. In seeking to

discharge that burden, the plaintiffs in this case rely upon the

fact that their attorney sent Nikolits a letter warning him that

discharging plaintiffs would violate the law. Even if we were to

assume that that letter actually caused Nikolits to believe that

the action he took was contrary to federal law (and there is no

evidence that it did), we have previously held that the subjective

belief of the defendant is irrelevant to a qualified immunity

inquiry, because the measure is purely one of objective legal

reasonableness. Lassiter, 28 F.3d at 1150.

Plaintiffs also contend that Nikolits is not entitled to

qualified immunity, because the Elrod and Branti decisions clearly

established the constitutional rule of law that Nikolits' actions

violated.

 Under our case law, Nikolits is entitled to qualified

immunity in his individual capacity unless Parrish, Wetzel and

Lucas can demonstrate not only that Nikolits violated Branti in

firing them, but also that it was clearly established at the time

that Nikolits's actions violated Branti. See Williamson v. F.H.

Mills, 65 F.3d 155, 157 (11th Cir.1995) (quoting Lassiter, 28 F.3d

at 1150). The Supreme Court stated in Anderson v. Creighton, 483

U.S. 635, 640, 107 S.Ct. 3034, 3039, 133 L.Ed.2d 773 (1987), that,

for a plaintiff to overcome qualified immunity,
the right the official is alleged to have violated must have

been "clearly established" in a more particularized, and hence

more relevant sense: The contours of the right must be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right. 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, but it is to say that in the light of pre-existing

law the unlawfulness must be apparent.

483 U.S. at 640, 107 S.Ct. at 3039.

 We recently held in Beauregard v. Olson, 84 F.3d 1402, 1405

(11th Cir.1996), that it was not clearly established under Branti

that the dismissal of clerical employees of a county tax

collector's office for political reasons violated their First

Amendment rights. Beauregard controls the qualified immunity

analysis in this case. Moreover, it is not entirely without

significance that the district court, with full briefing and two

years after Nikolits' actions, concluded that those actions did not

violate the law. Finally, we note that plaintiffs' argument that

the law was clearly established by Elrod and Branti is further

undermined by the split of the circuits concerning what those two

decisions mean. See supra our discussion at 2510; see also

Mitchell v. Forsyth, 472 U.S. 511, 533-36, 105 S.Ct. 2806, 2819-20,

86 L.Ed.2d 411 (1985) (holding that official defendant was entitled

to qualified immunity and noting that legal uncertainty about the

meaning of a Supreme Court decision was "reflected in the decisions

of the lower federal courts").

While we have endeavored in this opinion to provide some

specific guidance to the district courts on this subject, in

examining clearly established law for qualified immunity purposes,

we look only to the law as it existed on January 5, 1993, the date
Nikolits terminated the plaintiffs' employment. See, e.g.,

Mitchell, 472 U.S. at 530-36, 105 S.Ct. at 2817-20, 86 L.Ed.2d 411

(1985); Belcher v. City of Foley, Ala., 30 F.3d 1390, 1400 n. 9

(11th Cir.1994). Under these standards, we affirm the district

court's grant of summary judgment to Nikolits insofar as he was

sued in his individual capacity.

For the foregoing reasons, we AFFIRM the summary judgment

entered in favor of Nikolits on the individual capacity claims and

VACATE the summary judgment entered in favor of Nikolits on the

official capacity claims and remand this case to the district court

for further proceedings consistent with this opinion.

AFFIRMED in part, VACATED and REMANDED in part.