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Constitutional Law — public employment — free speech

United States Court of Appeals For the Seventh Circuit

Civil

Constitutional Law — public employment — free speech

A city’s Commissioner of Streets and Alleys is a policymaker, who can be demoted for political reasons.

“We conclude Embry held a policymaking job. As commissioner, Embry planned for and oversaw construction and repair of the city’s public ways. He also supervised his department’s forty employees and managed its budget of four million dollars. These executive duties closely resemble those of other public-works administrators that involved ‘policymaking.’ In Selch, for example, a subdistrict superintendent with the Indiana Department of Highways held a policymaking job when he coordinated all maintenance activities for his subdistrict, oversaw a budget of one million dollars, and managed over sixty employees. 5 F.3d at 1044-45. This high-level responsibility permitted him to thwart the political goals of the party in power, making party allegiance an appropriate job qualification. Id. at 1045-46. Indeed, the ‘primary function of any local government entity is the provision of services such as . . . transportation [and] . . . quasi-utility functions such as water, garbage, and sewage services. Elections often turn on the success or failure of the incumbent to provide these services[.]’ Tomczak, 765 F.2d at 641. Here, Embry exercised similarly broad authority over construction and maintenance of Calumet City’s public thoroughfares. His duties even exceeded those of the public official in Selch. Unlike that government employee, Embry not only implemented policy but met with the mayor and other department heads to develop new policies for improving city services. Ultimately, the commisioner’s broad discretion to formulate and implement city policy places the position firmly in the policymaking category.”

Affirmed.

12-1649 Embry v. City of Calumet City

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Flaum, J.

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