Political Retaliation Must Have an End, Court Says

(CN) - Orange County Sheriff Michael Carona may be liable for repeatedly retaliating against an employee whom he demoted and banished to a dead-end department after that officer had backed the sheriff's opponent in an election, the 9th Circuit ruled.

The sheriff appointed Jeffrey Bardzik as commander of the department's prestigious Reserve Division in 2003, but Bardzik had become dissatisfied with Carona's leadership and backed another candidate in the 2006 election. After Carona won re-election, he buried Bardzik in the Court Operations department, a position that was widely known as a dead-end job used to punish ill-favored officers, according to a ruling published Monday.

Adding insult to injury, Carona then kept Bardzik from raises and promotions, and he opened two internal investigations against Bardzik that ultimately went nowhere, according to the spurned officer's complaint.

Bardzik sued Carona and others in District Court, alleging First Amendment violations. Carona claimed qualified immunity, arguing that he had every right to retaliate against the officer because, as commander of the Reserve Division, he was policymaker and essentially a political appointee.

U.S. District Judge James Selna disagreed and denied Carona's request for immunity, but on appeal the 9th Circuit partially reversed.

The three-judge federal appeals panel in Pasadena found that Bardzik was indeed a policymaker while commander of the Reserve Division. As such, Carona deserved qualified immunity for demoting the officer who had backed the wrong candidate and accused the sheriff of corruption.

"There is no legitimate interest in covering up corruption, and Bardzik was certainly entitled to expose the sheriff's alleged wrongdoing to the public," Judge Robert Beezer wrote for the panel. "However, often in political contests, one side may accuse the other of acting illegally. An elected official need not retain a high-ranking official in a position to undermine the official's credibility and goals when neither the electorate nor an appropriate agency has determined that the official has violated the law."

Once Carona demoted Bardzik, however, the retaliation should have stopped, the panel found, as the officer was clearly no longer a policymaker.

"For the same reasons that Carona is entitled to qualified immunity for his actions retaliating against Bardzik while Bardzik was Reserve Division Commander, he is not entitled to qualified immunity once Bardzik was transferred to Court Operations," Beezer wrote (emphasis in original). "Bardzik was not a policymaker at Court Operations. While at Court Operations, Bardzik supervised three sergeants and a civilian supervisor for inmate movement. He did civil processing, security, weapons screening, and conferred with judges and other divisions in the Department as it pertained to court security."

In a partial dissent, Judge Harry Pregerson came down against the majority's partial reversal of the District Court, arguing that Bardzik was not a policymaker while commander of the Reserve Division.

"The majority argues that Bardzik had the 'power to control others' as Reserve Division Commander," Pregerson wrote. "But in that position, Bardzik supervised only one more fulltime paid employee than he did in Court Operations, a position the majority holds was not policymaking. Thus, considering full-time, paid subordinates, his position as Reserve Division Commander was about the same as his job in Court Operations."

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