Sheriff on collision course with Constitution?

Iredell County Sheriff Phil Redmond may have violated the U.S. Constitution when he fired four reserve/part-time officers and dropped the law-enforcement certifications of nine people – including the four who were fired – who openly supported Mark Nicholson, Redmond’s strongest competitor, in the May 4 primary.

The day after the primary results were in, the sheriff’s office began contacting four of Nicholson’s supporters who were reserve/part-time officers to inform them that their “services are no longer needed” by the sheriff. The sheriff then dropped those four individuals’ certifications, which means they cannot practice law enforcement unless or until another agency agrees to hold their certifications. If within one year they do not find someone to hold their certifications, they would have to start over with basic law-enforcement training if they ever decide to enter the law-enforcement profession again.

In addition to firing those four officers and dropping their certifications, the sheriff – within 10 days after the primary – took it upon himself to drop the certifications of five additional inactive officers who openly supported Nicholson. The reason provided: “resignation of officer.” But interestingly, the officers had been resigned from the sheriff’s office for up to a decade. Though they were inactive, Redmond had chosen to hold their certifications - obviously until they chose to openly support someone else for sheriff.

While employment in North Carolina is generally at-will, which means an employer can fire an employee for virtually any reason, public employers such as the Iredell County Sheriff’s Office are obligated to abide by the Constitution. And Redmond’s apparent decision to alter the employment status of nine Nicholson supporters may have run afoul of the First Amendment’s protection of the right of political association. This is the case despite the generally at-will nature of employment in North Carolina, as explained by the Supreme Court.

The Court has held that “the First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate.”

Supreme Court Justices also agreed in 1976 that “the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments” because they “severely restrict political belief and association” (Elrod v. Burns). “Political belief and association constitute the core of those activities protected by the First Amendment …”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
~ First Amendment

One potential exception to the rule is a person who helps set policy – that person can actually be dismissed if s/he supported another candidate or is a member of a different party. The Justices noted “the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”

Therefore, the Court held: “Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end.”

The problem that the Court acknowledged with that, however, is that “no clear line can be drawn between policymaking and nonpolicymaking positions.”

“Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party,” the Court said. At the same time, however, even someone with a number of responsibilities cannot necessarily be considered a policymaking individual. Therefore, “the nature of the responsibilities is critical.”

“An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position,” the Court said. “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 …”

The Court placed the “burden of establishing this justification” onto the shoulders of the public employer. Cases in doubt, it was determined, should be resolved in favor of public employees.

“More fundamentally, however,” the Court determined, “any contribution of patronage dismissals to the democratic process does not suffice to override their severe encroachment on First Amendment freedoms. We hold, therefore, that the practice of patronage dismissals is unconstitutional under the First and Fourteenth Amendments …”

In concurring in the judgment in Elrod v. Burns, Justice Stewart noted: “The single substantive question involved in this case 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 beliefs. I agree with the plurality that he cannot.”

When the Iredell County sheriff and his sworn staff take their oath of office, they affirm by God that they will “not be influenced in any matter on account of personal bias or prejudice” and that they will “support and maintain the Constitution and laws of the United States…” They also swear to “faithfully and impartially discharge and execute the duties of [their] office as a law-enforcement officer” to the best of their skills, abilities and judgment.

Many comments have been made here during the past few months asserting that sheriff’s office employees fear retaliation for practicing the freedoms that are enjoyed by common citizens – freedoms that are granted and protected by the U.S. Constitution. And many people, throughout the campaign season, stated that employees at the sheriff’s office are often reminded that they “work at the pleasure of the sheriff.”

That kind of work environment seems to contradict the very principles that the sheriff has listed on his homepage (www.iredellsheriff.com). Among those principles:

• recognizing the importance of each individual employee,
• maintaining a work environment where employees can grow professionally, and
• upholding the Constitution of the United States of America and the State of North Carolina.

The U.S. Constitution gives citizens the right to speak and associate freely. And the Supreme Court has stated in no uncertain terms that firing public employees because of political association is unconstitutional.

Yet shortly after the Iredell County primary, Redmond fired four part-time/reserve officers and then dropped their certifications, along with the certifications of five other inactive officers, who had demonstrated their support for another sheriff candidate during the campaign season.

If Redmond in fact altered those individuals’ employment and/or certification status simply because they supported a different candidate for sheriff, he very well may have done so in violation of the Constitution.

And, unfortunately, the sheriff’s recent actions seem to lend credibility to the assertions that public employees within the sheriff’s department have real cause to fear retaliation for exercising their constitutional rights and freedoms.