In the

United States Court of Appeals

For the Seventh Circuit

No. 06-2866

ROBERT POWERS,

Plaintiff-Appellant,

v.

GEORGE E. RICHARDS, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 04-C-3024—Jeanne E. Scott, Judge.

 

ARGUED JANUARY 23, 2008—DECIDED DECEMBER 2, 2008

Before MANION, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge. Robert Powers, a former State

of Illinois employee and a member of the Republican

Party, brought this civil-rights suit under 42 U.S.C. § 1983

claiming that the governor of Illinois and his staff violated his right to freedom of association when they fired

him because of his party affiliation. He also asserted that

the members of the Illinois Civil Service Commission

denied him procedural due process when they fired him

without an adequate pre-deprivation hearing. The district
2 No. 06-2866

court granted summary judgment in favor of all defendants. Because Powers cannot show that his constitutional rights were violated, we affirm.

From August through September 2002 Powers was a

Deputy Director of the Illinois Department of Central Management Services (CMS), the “central procurement and

administrative services agency” for the state. See http://

www.cms.illinois.gov/cms/about_cms/quickfacts.htm

(last visited Oct. 2, 2008). He was assigned to work as a

liaison to the governor’s office. According to the defendants, during the waning months of Governor George

Ryan’s administration, Powers was part of a political

scheme to ensure that certain state employees retained

their jobs after Governor Ryan, a Republican, left office.

These employees had been appointed to four-year terms,

during which they could not be fired except for poor

performance. Once these terms ended, they could be

fired for any reason. See 20 ILCS 415/8b.18, 8b.19. Their

terms were set to expire shortly after Governor Ryan, who

had decided not to seek reelection, left office. Concerned

that the new governor would not reappoint them, in

September 2002, they attempted to find a way to secure

their jobs. First, they resigned their positions, ostensibly

to take different, non-appointed jobs in the state government. A few days later, they returned to their former

positions with new four-year terms. Voila! Their jobs

were secure until 2006, long into the new governor’s term.

Powers’s role in the scheme was vital, but quite simple:

he signed some of the personnel forms required to effectuate the transfers from one job to another. The problem

was that he did not have the authority to permit these
No. 06-2866 3

transfers or to sign the forms. Only CMS’s Director—and

not a deputy—may approve transfers of employees, and

the Director refused to sign the forms. Powers knew that

the Director would not sign the authorizations, and

so Richards signed his name in boxes reserved for the

Director’s signature.

Shortly thereafter, in October 2002, Powers took a job

as the Executive Secretary of the Illinois Civil Service

Commission. The Commission is composed of five Commissioners, and no more than three may be members of

the same political party. The Commission, among other

duties, hears appeals of state employees regarding discharges, suspensions, transfers, allocations, layoffs and

demotions; modifies the Personnel Rules when necessary; and investigates possible violations of the Personnel

Code. According to the official position description, the

Executive Secretary is the chief administrative officer of

the Commission and, in that capacity, among other duties,

drafts “major rules and regulations” and presents them

to the Commission; makes recommendations to the Commissioners about how disputes presented at hearings

should be resolved; enforces the Commission’s decisions;

develops the budget and approves expenditures; coordinates with other agencies on matters relating to the Personnel Code and Rules; recommends amendments to the

Personnel Code; interprets the Personnel Code and

Rules for state officials, employees, and members of the

public; and investigates alleged violations of the Personnel Code and Rules.

In January 2003, Rod Blagojevich, a Democrat, acceded

to the governor’s office. His administration began an
4 No. 06-2866

investigation into the state employees’ scheme to subvert

the appointment system. In April 2003, Governor

Blagojevich’s counsel sent a letter to the Commission

detailing the findings of the investigation and concluding

that Powers and two others who had been working in

Governor Ryan’s office “appear to have played key roles in

concocting and implementing this scheme.” Two days

later, Powers received a copy of this letter, and the Commission met to consider the allegations against him. At

the meeting, the Commission decided to place him on

administrative leave with pay. In May 2003, the General

Counsel for CMS gave the Commission an investigative

report that further described the scheme. The next day, the

Commission decided to suspend Powers with pay. The

Commissioners voted unanimously to authorize thenChairman George Richards to hold a hearing with Powers. The Commissioners further granted Richards

the authority to fire Powers if Powers did not come

forward with exculpatory evidence.

On May 21, 2003, Richards sent Powers written notification that the Commission was considering firing him

because he fraudulently signed personnel forms. The

letter listed the names of potential witnesses, informed

Powers of the hearing date, and told him that he had

the right to respond. Richards enclosed documents supporting the accusations, including copies of the personnel

forms Powers signed purportedly as the Director of CMS.

On May 29, 2003, Richards met with Powers, reiterated

the accusations against him, showed him the evidence,

and invited Powers to respond. Powers admitted that he
No. 06-2866 5

signed his name in the spot reserved for the signature

of the Director of CMS but went on to explain his version

of the events. According to Powers, the Director approved

the transfers but did not want to sign the forms, and so

requested that someone in the Governor’s office sign

them. Powers insisted that prior administrations also

had followed this “process.” Powers, however, did not

dispute that he signed his name as the Director CMS

without official authorization. Thus, Richards recommended that CMS fire him, which it did. Powers then

received a post-deprivation hearing before an Administrative Law Judge (ALJ) where he was represented by

counsel and had the opportunity to conduct discovery,

present evidence, and cross-examine witnesses against

him. In November 2003, the ALJ issued his findings and

concluded that the Commission was warranted in firing

Powers.

In granting summary judgment for the defendants, the

district court determined first that Powers lawfully

could be fired for his political affiliation because party

loyalty is relevant to the job of Executive Secretary of the

Commission, and second that Powers received all of the

process he was due at his pre-termination hearing. We

review this decision de novo, see Argyropoulos v. City of

Alton, 539 F.3d 724, 732 (7th Cir. 2008), and agree with

the district court that Powers cannot succeed on either

of his claims.

Powers first argues that he submitted sufficient evidence demonstrating that Governor Blagojevich and his

staff violated Powers’s right to freedom of association
6 No. 06-2866

under the First Amendment when they urged the Commission to fire him for his affiliation with the Republican

Party. Although there is virtually no evidence supporting a claim that Powers was fired because of his

political affiliation, there is ample evidence in the record

that he was fired because he tried to help other employees

retain their jobs by falsely signing personnel forms as

the Director of CMS. Curiously, however, the defendants

have not pressed this point and instead have conceded,

for the purposes of the summary judgment motion, that

they wanted to get rid of Powers because he is a Republican. But even so, we agree with the district court that

political affiliation is an appropriate requirement for the

position of Executive Secretary and thus Powers could

lawfully be fired solely for partisan reasons.

Like a perpetual ping-pong match, control over governments changes hands from one political party to

another and back again. Generally, a change in administration, with its corresponding shift in policy goals and

priorities, does not affect government employees. The

political affiliation of most employees does not affect

their ability to do their jobs, and a new administration

might violate the First Amendment if it fired these employees merely because they support a different political

party (or if it refused to hire applicants who were not

loyalists of the governing party). See Branti v. Finkel, 455

U.S. 507, 513, 515-16 (1980); Elrod v. Burns, 427 U.S. 347,

372-73 (1976). Some jobs, however, can be performed

satisfactorily only when the employee supports the administration’s ideas about policy and governing. If these

jobs are filled with employees who take a view different
No. 06-2866 7

from the administration, then these employees could

thwart the government’s ability to enact the policies it

had been elected to advance. Thus, where party loyalty is

necessary to effectively perform a job, the First Amendment does not prohibit the administration from firing

an employee based on party affiliation. See Branti, 455

U.S. at 518; Thompson v. Ill. Dep’t of Prof’l Regulation, 300

F.3d 750, 755-56 (7th Cir. 2002).

In assessing whether political loyalty may play a role

in an employment decision, we consider whether the

position requires the employee to exercise political judgment by crafting policy, see Moss v. Martin, 473 F.3d 694,

699 (7th Cir. 2007), that is, whether the position “authorizes, either directly or indirectly, meaningful input into

government decisionmaking on issues where there is

room for principled disagreement on goals or their implementation,” Nekolny v. Painter, 653 F.2d 1164, 1170 (7th

Cir. 1981); see also Kiddy-Brown v. Blagojevich, 408 F.3d 346,

355 (7th Cir. 2005). We further ask whether the position

entails the exercise of a substantial amount of political (as

distinct from professional) discretion. See Allen v. Martin,

460 F.3d 939, 944 (7th Cir. 2006); Riley v. Blagojevich, 425

F.3d 357, 360 (7th Cir. 2005).

Elected officials must rely on official descriptions of

individual positions when deciding which employees

they may and may not replace with like-minded partisans.

Thus, as long as an official description is reliable, we

focus on the inherent duties of the position as listed in

the description. See Riley, 425 F.3d at 361. Powers does not

dispute that the official job description accurately
8 No. 06-2866

explains the responsibilities of the Executive Secretary,

and so our analysis of his job duties begins and ends

there. See Allen, 460 F.3d at 944.

Powers concedes that the Executive Secretary is responsible for policymaking, but he contends that political

loyalty is not a necessary qualification for all policymakers. Although he is correct that the label of

“policymaker” is not a talisman for a job that requires

political loyalty, a reading of the position description

reveals that, for the Executive Secretary, the description

“policymaker” is more than a generic label. Rather, the

Executive Secretary must use political discretion and

has the ability to influence important government decisions about personnel matters. The Executive Secretary

is responsible for drafting and proposing rules changes

and modifications to the Personnel Code, which affects

all state employees, and is charged with advising the

Commission about how it should resolve personnel

disputes. These responsibilities give the Executive Secretary a hand in making decisions on a wide range of personnel issues. The Executive Secretary also has broad

discretion over personnel matters, including the

authority to decide which complaints to prioritize for

investigation, how to enforce the Commission’s decisions,

and how to interpret the Personnel Code. In all of these

decisionmaking and discretionary functions, there is

room for the administration to legitimately disagree

with the Executive Secretary’s positions or exercise of

authority, thus making political loyalty an appropriate

job qualification. See Allen, 460 F.3d at 945; Americanos v.

Carter, 74 F.3d 138, 142 (7th Cir. 1996); Selch v. Letts, 5 F.3d
No. 06-2866 9

1040, 1047 (7th Cir. 1993); Tomczak v. City of Chicago, 765

F.2d 633, 642 (7th Cir. 1985). Moreover, the Executive

Secretary represents the Commission at meetings with

state officials and with other organizations outside of

state government to resolve questions on personnel

matters and to interpret the Personnel Code. Communicating the positions of the Commission and interpreting

state law to those inside and outside of the government

require political sensitivity, and the administration

would want a loyal partisan, who would accurately

reflect its position, in this role. See Allen, 460 F.3d at 945.

We conclude that the Executive Secretary has broad

discretion to make policy, set priorities, interpret the law,

and speak on behalf of the Commission, and that if the

Executive Secretary is a political enemy of the sitting

governor, the Executive Secretary could hamper the

implementation of the governor’s legitimate policies.

Therefore, the administration may require the person

who fills the position to perform those responsibilities

consistently with the administration’s positions and

priorities, and it is entitled to fill the position with an

employee who is a member of the same political party

and who will be loyal to the governor and advance his

or her policies.

According to Powers, the role of the Commission is to

ensure that personnel decisions are based on merit and

are unaffected by political considerations. Powers also

points out that the Commission is independent of the

governor, that the Commission must be composed of no

more than three members of the same political party, and
10 No. 06-2866

that the Executive Secretary’s allegiance lies with the

Commission, not the governor. Thus, he concludes that

the Executive Secretary position is politically “neutral” and

that affiliation with a particular party is not a valid requirement for the position. But this argument misses

the point. Just because the law that the bi-partisan Commission and the Executive Secretary are charged with

implementing aims to ensure that the most qualified

people receive jobs without undue political meddling

does not mean there must be universal agreement on

how to administer it, interpret its provisions, or set priorities for amendments or investigation into wrongdoing.

Although the administration and Powers might share

the ultimate goal of ensuring fair, merit-based government employment, their means to achieve this goal might

differ, making political loyalty an appropriate requirement for the position of Executive Secretary. See

Americanos, 74 F.3d at 641; Selch, 5 F.3d at 1045; Tomczak,

765 F.2d at 142.

Powers also argues that party affiliation is not an appropriate qualification for his former job because he was

hired through a merit-based procedure and, under state

law, can be fired only for cause. But we rejected that very

argument in Flenner v. Sheahan, 107 F.3d 459, 464 (7th

Cir. 1997), finding that the Illinois legislature’s judgment

that a superior must have a good reason for firing an

employee is irrelevant to whether removing the employee for political reasons violates the First Amendment.

Flenner, 107 F.3d at 464. Powers might have a remedy

under Illinois law if he can show that the administration

or the Commissioners infringed his rights under the
No. 06-2866 11

Personnel Code, but his constitutional rights have not

been violated; so he cannot succeed on his federal civilrights claim. See Riley, 425 F.3d at 365.

Powers next argues that he presented sufficient

evidence that the hearing he received before he was

fired was constitutionally deficient. Illinois law provides

that the Executive Secretary can be fired only “for cause,”

so Powers had a property interest in retaining his job

and was entitled to due-process before the state could

deprive him of it. See Ryan v. Ill. Dep’t of Children & Family

Servs., 185 F.3d 751, 761 (7th Cir. 1999); see also

Argyropoulos, 539 F.3d at 741 (noting that tenured public

employees enjoy a “near-categorical guarantee” of process

before they are removed from their positions). Where, as

here, an employee is entitled to a full hearing after he

has been fired, a pre-deprivation hearing satisfies due

process if the employee receives notice of the allegations,

an explanation of the evidence against him, and a chance

to tell his version of the story. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985); Michalowicz v. Vill.

of Bedford Park, 528 F.3d 530, 536-37 (7th Cir. 2008).

Powers does not dispute that he received notice that he

had been accused of improperly signing his name as the

Director of CMS, that the Commission explained the

evidence against him, and that he was given the opportunity to explain his version of events. He argues, however,

that, before the hearing, the Commissioners had already

agreed to fire him and thus his hearing before Commissioner Richards was essentially a sham. A hearing where

the decisionmaker has prejudged the outcome does not
12 No. 06-2866

comport with due process because it effectively denies

the employee the opportunity to respond to the accusations against him. See Ryan, 185 F.3d at 762.

But Powers has put forward nothing except for his own

speculation to support his contention that the Commission decided to fire him before the hearing. Rather,

the undisputed evidence shows that the Commissioners

authorized Commissioner Richards to hold the hearing

with Powers, and, if Powers failed to provide new and

exculpatory evidence, to remove him from his position.

Furthermore, there is no evidence that Richards had

made up his mind to fire Powers before the hearing.

Instead, the record shows that Richards listened to Powers’s explanation that he believed the personnel transfers

were valid and that the Director of CMS had approved

them. But because Powers conceded that he signed forms

to authorize personnel transfers as the Director of CMS

knowing that the Director had refused to sign them,

Richards concluded that Powers had not presented evidence of his innocence. Thus Richards exercised his

authority and fired Powers. Even if prior to the

hearing Richards was inclined to believe Powers should

be fired, there would be no due-process violation as long

as he kept an open mind, see Ryan, 185 F.3d at 762, and

Powers has presented no evidence that nothing would

have persuaded Richards not to fire him, see Head v.

Chicago Sch. Reform Bd. of Trs., 225 F.3d 794, 804 (7th

Cir. 2000) (noting that adjudicators are presumed to act

in good faith absent evidence of actual prejudgment).

Powers also complains that, because only the Commission had the authority to remove him, he was
No. 06-2866 13

entitled to a pre-termination hearing before all of the

Commissioners. But Powers did receive a hearing before

the person with the authority to determine his fate—the

Commissioners had delegated that authority to Commissioner Richards. Furthermore, even if the Commission

had retained the ultimate authority to fire Powers, the

Constitution does not entitle an employee to a pre-termination hearing in front of the ultimate decisionmaker. See

Riccio v. County of Fairfax, Va., 907 F.2d 1459, 1465 (4th

Cir. 1990); Los Angeles Police Protective League v. Gates, 907

F.2d 879, 891 (9th Cir. 1990); Loudermill v. Cleveland Bd. of

Educ., 844 F.2d 304, 312 (6th Cir. 1988).

Powers also argues that his post-deprivation hearing

was constitutionally deficient and that he therefore

should have received more elaborate pre-termination

process, but this argument, too, misses the mark. As

long as a more-searching post-termination procedure

is available, the pre-termination proceedings need only

establish that there are reasonable grounds to support

the removal of the employee. See Loudermill, 470 U.S. at 545-

46; Baird v. Bd. of Educ., 389 F.3d 685, 690-91 (7th Cir. 2004).

Powers cannot dispute that Illinois gave him the right to

a full hearing—where he was represented by counsel and

allowed to conduct discovery, present evidence, and crossexamine witnesses—and that he took full advantage of it.

If his post-termination hearing fell short of due-process

requirements, his remedy was to raise a constitutional

challenge to those proceedings, not to use the alleged

deficiencies as grounds to attack his pre-termination

hearing. Indeed, Powers must have understood this

because he actually raised constitutional challenges to his
14 No. 06-2866

post-termination hearing. The district court, however,

dismissed all of the claims relating to the post-termination hearing. Powers does not argue in his briefs on

appeal that this decision was incorrect. Thus, he has

abandoned any argument that the district court should

have considered his claims regarding his post-termination

hearing. See Ruffin-Thompkins v. Experian Info. Solutions, Inc.

422 F.3d 603, 607 n.1 (7th Cir. 2005); Robin v. Espo Eng’g

Corp., 200 F.3d 1081, 1088 (7th Cir. 2000).

Therefore, the judgment of the district court is AFFIRMED.

12-2-08