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Seven former Palm Beach County, Fla., sheriff’s lieutenants who claim they were demoted because they backed the wrong candidate for sheriff asked the 11th U.S. Circuit Court of Appeals on Tuesday to allow them to pursue their constitutional lawsuit against Sheriff Ed Bieluch and former Undersheriff Kenneth Eggleston. The men are appealing the dismissal of their lawsuit, which was filed last year in U.S. District Court in West Palm Beach. They alleged that their demotions violated their First and 14th amendment rights to free speech and free association. They also alleged that they were demoted without cause and due process. And they invoked a 1994 Florida law that prohibits political retaliation against deputy sheriffs. The Sheriff’s Department countered that their demotion was based not on their exercise of their speech rights but on political patronage considerations, which it contends is permissible under Florida law. Last September, U.S. District Judge Federico Moreno dismissed the complaint with prejudice, thus blocking the officers from amending their complaint. He based his ruling on a 1989 11th Circuit ruling in an Alabama case, which held that sheriffs could practice political patronage. Moreno found that the Palm Beach officers’ allegations amounted to “nothing more than mere manifestations of political affiliation.” The court battle grows out of the hotly contested 2000 Palm Beach County sheriff’s election, which pitted Democrat Bieluch against Republican Robert W. Neumann, who had served as sheriff since 1996. Neumann had promoted the seven men from the rank of sergeant to lieutenant just a few months before the election. During the campaign, the seven lieutenants supported their boss by attending rallies, carrying campaign signs on his behalf and appearing in his TV commercials. Bieluch won the election. After taking office, he demoted the seven plaintiffs to their original rank of sergeant. Bieluch claimed this was done as part of a restructuring and not for any political reason. Additionally, he claimed, the demotions occurred before the officers’ one-year probationary period as lieutenants had expired. The seven plaintiffs are Rolando Silva, Ken Thomas, Thomas Neighbors, Edward Jablonski, James “Karl” Durr, Christopher Calloway and Robin Hawkins. Only Thomas is not alleged to have supported Neuman. All still work for the Sheriff’s Department. Susan Dolin, a partner at Muchnick Wasserman Dolin & Levine in Hollywood who represents the deputies, argued to the 11th Circuit panel in Miami on Tuesday that her clients could only be demoted lawfully for unsatisfactory performance. But in this case, she told the judges, they were demoted because they didn’t support candidate Bieluch. “There is no provision in the career service code to permit that,” she asserted. Dolin noted that “it is well-established that a public employer may not take adverse employment actions against a public employee for the employee’s political affiliation or activities without running afoul of the employee’s First Amendment rights.” But Keith Tischler, a partner at Powers Quaschnick Tischler Evans & Dietzen in Tallahassee who represents the sheriff’s office, argued that Florida law gives sheriffs the authority to organize their departments in the way they see fit to provide appropriate service to the public. Tischler also argued that the plaintiffs, realizing that they didn’t have a strong case based on their political patronage argument, have tried to reposition it as a constitutional free speech case. “The plaintiffs’ claim is clearly one of political affiliation or activity and not one of political speech,” Tischler wrote in his brief. He also argued that Sheriff Bieluch’s activities should be covered by the qualified immunity from lawsuits typically granted to public officials in the course of their official duties. Dolin insisted, however, that the lawsuit involved constitutional free speech rights. “While addressing a public audience clearly is speech, it can hardly be stated that it is the only type of speech worthy of First Amendment protection,” she wrote. “It is axiomatic that speech may be classically overt and vociferous … or more subtle, as in simply and silently wearing a message.” Dolin also argued that when the men were demoted without a hearing, they were denied due process. But Tischler argued that they never requested a hearing.

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