Deputy Lawsuit Will Go Forward
While a deputy and union president, plaintiff James Fuerst criticized Clarke's decision to replace a deputy staff position with a civilian who only answered to Clarke. It was believed that this individual (who would earn a handsome salary of $71,500 a year) would serve as Clarke's "mouthpiece" in his run for mayor and other political activities. Fuerst was then passed over for a promotion to sergeant, even though he scored 2nd out of the 150 deputies who took the sergeant's exam. Clarke told Fuerst that he was passed over because he wasn't "loyal" to Clarke's "vision," a high crime if there ever was one. In the course of this lawsuit, Clarke stated that Fuerst was actually passed over because of his criticism.
Judge Posner analyzes the First Amendment issues involved here. If the position of sergeant is a political, policy making decision, then Clarke can choose to not promote anyone who isn't "loyal" to his "vision." It would be his right to fill policy making positions with people who share his views. Judge Posner states that the position of sergeant is not a policy making position. They are "modest supervisors" and have broader discretion than deputies, but they do not create department policy. The lower court was wrong on that issue.
Posner's ultimate point in this decision is that the situation is "in between." The First Amendment issues involved are fairly fuzzy. Posner mentions a WI shield law in place to protect political activity by law enforcement officers, but not all political activity is protected. These are issues that need to be resolved in trial. There is no way that Clarke should have been granted summary judgment in the lower court. This case is not that clear cut. It has been remanded, so we'll have to wait and see how it turns out.