ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Friday, January 3, 1997 TAG: 9701030108
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
The legal definition of which public jobs are "political" is so "inconsistent and unpredictable" that Roanoke County Clerk of Courts Steve McGraw reasonably assumed he was entitled to dismiss the chief deputy clerk when he took office, a federal appeals court ruled.
The 4th U.S. Circuit Court of Appeals this week reversed a $54,990 judgment against McGraw, ruling that McGraw enjoys immunity from such a lawsuit.
Former chief deputy clerk Marsha Conner won the verdict against McGraw in 1994. She lost her job after McGraw's victory over former clerk Elizabeth Stokes in 1991. Conner, who had held the position for five years, filed a civil suit alleging that McGraw had violated her civil rights by firing her because of her political ties to Stokes.
Chief U.S. District Judge Jackson Kiser ruled in the 1994 case that the chief deputy clerk's position could not be based on politics. People holding jobs considered "political patronage" positions - filled by those who have been loyal to the winning candidate - can be legally terminated when a new boss comes into power.
The three-judge appeals panel ruled that McGraw could have reasonably thought that the position of his second-in-command could be considered political. Public officials are not liable for damages if their conduct doesn't violate rights or laws that a "reasonable person" would have known.
The appeals court said that area of law is unresolved and confusing. Some jobs, such as assistant county attorney and deputy parks commissioner, are considered political, while others, such as deputy sheriff and city clerk, are not.
"When the courts have applied it inconsistently to justify dismissals of some employees and not others, it is simply expecting far too much of an objectively reasonable elected chief clerk to conclude that he is not entitled to fire his chief deputy clerk when he takes office in order to have his own administration carry out the policies of his campaign," the court ruled.
The appeals court's decision, however, did little to clear up the confusion surrounding which jobs should be considered political.
But "it should give others some confidence ... that they have some leeway and can exercise some judgment" over such positions, said McGraw's attorney, Fain Rutherford.
McGraw said the decision helps constitutional officers who ``are elected on the basis of a `need for change' [platform] to do things as they see fit.''
McGraw has maintained that he did not terminate Conner for political reasons. Kiser upheld Conner's argument that he did, but the appeals court ruled he was entitled to do so.
McGraw said he fired Conner because their management styles were incompatible.
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