County’s Financial Resource Director May Be Terminated for Political Reasons Without Violating the First Amendment

December 5, 2018

In Bogart v. Vermilion County, et al., No. 18-1719 (Nov. 26, 2018), Nikki Bogart filed suit alleging that her rights under the First Amendment and Equal Protection clauses were violated when she was fired from her position as Financial Resources Director by the new County Board Chairman a few months after he took office. Bogart, a Democrat, had been hired in 2007 by a Democratic Chairman. At the time she was hired, the County had a written job description for the position which included duties such as developing long and short-term financial plans, conducting budget preparation, review, and control, and exercising on-going budget analysis. The position reported directly to the County Board Chairman and the Finance Committee and advised them on certain fiscal issues. Bogart confirmed during her deposition that she performed these job responsibilities.

In 2012, a Republican majority gained control of the County Board and selected a Republican Chairman for the first time since 2006. According to Bogart, several Republican Board members urged the newly selected Republican Chairman, Gary Weinard, to fire Bogart because she was a Democrat; however, Weinard never did so. In December 2014, Weinard resigned, and Michael Marron, a Republican, became the new Chairman. He fired Bogart by the end of January 2015.

Bogart alleged that she was fired for her political affiliation in violation of her First Amendment and Equal Protection rights. The Seventh Circuit Appellate Court disagreed, finding that political loyalty was a bona fide job requirement for the Financial Resource Director position. Relying on the reasoning in the Supreme Court’s decisions in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), the Court explained that the overarching inquiry is whether a public employee’s party affiliation is an appropriate requirement for the effective performance of the public office. Political patronage dismissals help ensure that representative government is not undercut by tactics obstructing the implementation of policies of the new administration which were sanctioned by the electorate. Finding that the job in question – Financial Resources Director – entailed substantial financial policymaking responsibility and was a senior position requiring the trust and confidence of the Chairman and elected Board members (akin to a cabinet position), the Court held that the position was not protected by the First Amendment’s general prohibition against patronage dismissals.

Finally, the Court addressed Bogart’s claim under the Equal Protection Clause. Bogart argued that the defendants violated the clause by treating her differently on the basis of her political affiliation. The Seventh Circuit ruled that this claim mirrored Bogart’s First Amendment claim and the same considerations and standards would be applicable. Thus, this claim was dismissed as well. Michael Condon and Yordana Wysocki represented the County and County Board Chairman in the suit.

Bogart v. Vermilion County, et al.

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