Political Discharges: What Is and Is Not Allowable

Public Sector.BlogA recent case in South Carolina helps frame the limits of legality when an employee is discharged for political reasons.

The First Amendment protects public employees for their political speech and the act of running for office. Still, officials or government entities may discharge a worker in a high-level “confidential or policy-making” position. The question is where the lines are drawn.

Consider the case of Melanie Lawson and Union County. Lawson was fired after she ran against her boss when he sought re-election. She recently had her political discrimination case revived by the U.S. Court of Appeals for the Fourth Circuit. Lawson v. Union Cty. Clerk of Court (4th Cir. 2016).

Lawson was a deputy clerk, responsible for administrative duties like collecting receipts and recordkeeping. During her campaign against her boss, William Gault, Lawson said an employee Gault hired might have been connected to accounting irregularities. Gault became concerned that the statements could undermine his authority, and the county argued they would have disrupted the office’s operations. Gault discharged Lawson.

Union County explained that Lawson, who had a supervisory title, was in a confidential or policy-making role, because she was authorized by state law to perform all the functions of the county clerk. The district court agreed.

The Fourth Circuit found the ruling in error because the court focused on the position’s statutory authority and supervisory title without proving that Lawson was a policy-making employee. As the court put it, the “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 [particular job] involved.” There must be evidence that the employee’s “political ideology would affect the manner in which she performed her role.” In other words, there must be real policy-making duties that would cause the employee to conflict with the elected official if they did not agree on policy.

This decision outlines the Fourth Circuit’s standards in deciding when a public-sector employee is excepted from the U.S. Constitution’s protections against political bias. While the lower court found it acceptable to discharge the employee because she had the appearance of being a high-level employee, the Fourth Circuit did not like the manner in which the court undertook its decision and provided more points to consider. This points out the type of analysis that an employer must apply if an elected official wants to discharge an employee who makes clear that they either support an opposing candidate or plan to run as one.