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State Sen. Vincent Fumo of Philadelphia has lost his bid to dismiss a civil rights suit brought by Robert Mulgrew, a former worker in Fumo’s office who claims his First Amendment rights were violated when the senator fired him in May 2002 for publicly wearing a sticker on his jacket supporting Gov. Edward G. Rendells’ campaign. At the time, Rendell was in the final two weeks of a primary battle with Auditor General Robert Casey, and Fumo was supporting Casey’s campaign. In the suit, Mulgrew claims he had worked for Fumo for more than a decade providing “constituent services” out of one of Fumo’s Philadelphia district offices. Mulgrew’s lawyers, David Rudovsky and Jonathan H. Feinberg of Kairys Rudovsky Epstein & Messing, argue that Fumo’s firing of Mulgrew for expressing his political beliefs was illegal because his job was not a policy-level position and his responsibilities did not include any work relating to Fumo’s “legislative agenda.” In his nine-page decision in Mulgrew v. Fumo, U.S. District Judge J. Curtis Joyner found that if all of Mulgrew’s allegations are true, he had alleged a valid First Amendment claim. Joyner also concluded that Fumo is not entitled to “qualified immunity” because the law on the First Amendment rights of government workers is clearly established. “Because clearly established law finds it unconstitutional to discharge non-policymaking public employees for purely political reasons, [Sen. Fumo] should have known the illegality of his conduct and therefore is not granted qualified immunity,” Joyner wrote. But just two days after Joyner issued his nine-page decision denying a motion to dismiss the case, the senator’s lawyers filed a new motion seeking dismissal on summary judgment. In the new motion, attorneys Richard A. Sprague, Geoffrey R. Johnson, Joseph R. Podraza Jr. and Mark B. Sheppard of Sprague & Sprague argue that Mulgrew’s job description shows that his promotion in 1999 put him in a position in which he spoke for the senator and represented him in public. “Mulgrew’s termination was not as a result of his exercise of his right to free speech, but rather as a result of Mulgrew’s purposeful conduct in embarrassing Sen. Fumo at an event where Mulgrew would have been perceived as a representative of Sen. Fumo,” the defense team wrote. “Accordingly, under the clearly established law existing at the time … Mulgrew had no First Amendment right to continue in his political patronage position and his claim must fail both on the merits and because Sen. Fumo enjoys a qualified immunity,” they wrote. Joyner’s decision, ruling on a motion to dismiss under Rule 12(b)(6), was premised entirely on the facts alleged by Mulgrew. Mulgrew claims his job responsibilities involved “taking telephone calls and meeting with [Fumo's] constituents who had questions about state government issues, such as driver licensing.” He also claims his responsibilities did not include any work relating to Fumo’s “legislative agenda,” such as advocating for or against pending legislation, and that he never made any “public appearances where he held himself out to be a representative of [Fumo].” Mulgrew claims he only infrequently interacted with Fumo and did not speak or meet with him on a regular basis. On May 13, 2002, Mulgrew and Fumo both attended a dinner party sponsored by the City Democratic Committee. Mulgrew claims that Rendell handed him a sticker at the door that read “Rendell Governor,” and that he put it on his jacket lapel. Mulgrew claims that Fumo, who was supporting Rendell’s opponent in the primary, told Mulgrew to remove the sticker because “everyone on his staff was supporting Casey for governor.” When he refused to do so, Fumo fired him, the suit says. In refusing to dismiss the suit, Joyner found that “the law in this area is clear. Political belief and association are fundamental rights protected by the First Amendment.” Citing the U.S. Supreme Court’s 1976 decision in Elrod v. Burns, Joyner found that a government worker has the right to “act according to his beliefs” and “associate with others of his political persuasion.” Under Elrod, Joyner found, firing a public employee “solely on the basis of political patronage violates First and 14th Amendment rights to freely associate with the political party and/or candidate of that employee’s choice.” Joyner found that courts have consistently rejected the argument that political patronage is needed to ensure effective government and the efficiency of public employees. “Although political loyalty among employees is necessary to produce optimal implementation of policies sanctioned by the public official, courts have found this goal adequately served by limiting patronage dismissals to policymaking positions.” Joyner also found that the distinction between a policymaking and non-policymaking position is a clear one. “Even a supervisor is not a policymaker if his responsibilities have limited and well defined objectives that do not involve legislative duties,” Joyner wrote. And under the U.S. Supreme Court’s 1990 decision in Rutan v. Republican Party of Illinois, Joyner found that even an at-will employee cannot be fired on the basis of political patronage if he “does not engage in policymaking or policy-enforcement, represent the public official, or regularly interact with the public official.” As a result, Joyner found that Mulgrew had alleged a valid First Amendment claim because his suit alleges that he was a non-policymaking employee who was fired solely for wearing a political sticker. But in a new motion seeking dismissal of the suit on summary judgment, Fumo’s lawyers urged Joyner to take a new look at the facts, including an affidavit from Fumo and documents that outline Mulgrew’s job description. The brief says Fumo “was acting as the Philadelphia area coordinator” for Casey’s gubernatorial campaign, served on Casey’s finance committee and was a “major fund-raiser.” “Sen. Fumo’s political support of Auditor General Casey was well known,” the brief says. As Fumo describes the incident that led to Mulgrew’s firing, the two were attending “a major Democratic Party event,” when Fumo “observed Mulgrew standing prominently with other political operatives, who were consistent critics of Sen. Fumo and who were politically allied against the senator, particularly as to the gubernatorial primary.” When Mulgrew donned the Rendell sticker, the brief says, Fumo claims that some of the people around Mulgrew “were laughing at Sen. Fumo and making a point of the fact that Mulgrew, one of Sen. Fumo’s employees, was publicly undermining Sen. Fumo’s position.” The brief says Mulgrew “was laughing as well.” According to the brief, Fumo approached Mulgrew and “asked him to remove the button because it was causing him embarrassment. Mr. Mulgrew refused and was told that he could not remain on Sen. Fumo’s staff.” The defense lawyers argue that the event “was attended by many prominent members of the Pennsylvania Legislature,” and that Mulgrew’s conduct “was detrimental to Sen. Fumo, not only because it was embarrassing and humiliating, but, as well, it undermined Sen. Fumo in the eyes of his peers and thus, impaired his ability to effectively carry out his official duties.” As Fumo’s representative and employee, the brief says, “whatever political paraphernalia Mr. Mulgrew may have worn, to the extent that it ran counter to Sen. Fumo’s express views, would have reflected on Sen. Fumo and impugned and undermined him.” Mulgrew’s conduct, the brief says, “led Sen. Fumo to the inescapable conclusion that he could no longer trust Mulgrew to act as his representative and to be authorized to speak for him in writing, by phone or at public meetings.” In one section of the brief, the defense lawyers outlined Mulgrew’s job duties and argued that his promotion in 1999 had elevated his duties to one in which he publicly represented the senator. According to the brief, Mulgrew was hired in 1993 under the job designation of “Clerk I,” with duties that included providing constituent services, messenger services, and maintaining records and files. But in 1999, the brief says, Mulgrew was promoted to Clerk III status, with a substantial increase in pay and far greater job responsibilities, including representing the senator at community meetings and researching new legislation. In the new post, the brief says, Mulgrew “had access to confidential information regarding Sen. Fumo’s legislative initiatives, stances and strategies, as well as access to his political initiatives, stances and strategies.” Mulgrew was also “one of a limited number of persons … authorized to represent [Fumo] in dealings with the public,” the brief says. As a result of those increased job duties, the defense lawyers argue that Mulgrew cannot bring a First Amendment claim. “In light of that status, Mulgrew cannot credibly claim that he was free to publicly embarrass, humiliate and undermine Sen. Fumo and Mulgrew’s claim must be dismissed,” the brief says. “However, even if Mulgrew’s claim is not dismissed on the merits, Sen. Fumo is entitled to qualified immunity because his actions did not violate any clearly established law, and because Sen. Fumo believed that his action comported with the legal principles in effect at the time,” the brief says.

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