USCA1 Opinion

June 6, 1996
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-2167

WILLIE VICTOR ORTIZ-PI ERO,

Plaintiff, Appellant,

v.

VICTOR RIVERA-ARROYO,
INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,

Defendants, Appellees.

____________________

ERRATA SHEET

The opinion of this Court

issued on May 15, 1996, is

amended

follows:

Cover

page:

Change "[Hon.

Hector M.

Laffitte, U.S. Distr

___________

Judge" to "Hon. Jaime Pieras, Jr., Senior U.S. District Judge"

_____
__________________________

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-2167

WILLIE VICTOR ORTIZ-PI ERO,

Plaintiff, Appellant,

v.

VICTOR RIVERA-ARROYO,
INDIVIDUALLY AND AS MAYOR OF GURABO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Coffin, Senior Circuit Judge,

____________________

and Cyr, Circuit Judge.

_____________

____________________

Carlos A. Del Valle Cruz for appellant.

________________________

Elisa Bobonis Lang, with whom Jos R. Gaztambide and Gaztambid

__________________
__________________
_________
Plaza were on brief for appellees.
_____

____________________

May 15, 1996

____________________

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

Pinero ("Ortiz") appeals from

ing

his

Plaintiff

Willie Victor

Ortiz

a district court judgment dismiss-

political discrimination

claims

against

Gurabo, Puerto Rico, and its incumbent Mayor.

the City

of

We affirm.

I
I

BACKGROUND
BACKGROUND
__________

In

1981,

pursuant to P.R.

Laws Ann.

municipal offices as

including

the City

of

Gurabo

tit. 3,

of

ordinance,

1351, designating

positions of "trust"

the directorship

enacted an

the Office

eleven

or "confidentiality,"

of Federal

Programs

("OFP"), the municipal agency charged with obtaining and adminis-

tering

federal funding for

various public works

projects.

See
___

Municipal Ordinance No. 3, Series 1981-82 (Sept. 14, 1981).

In

August

1991,

then-Mayor

appointed Ortiz, a fellow member

(PDP),

Ortiz

extended

non-"confidence"

Ortiz' appointment

1992, however,

the electorate,

should

resign

Mayor Caraballo

through August

1993.

mayoral candidate was

outgoing Mayor Caraballo notified

forthwith

Caraballo

described the position to

position.

after the PDP

Garcia

of the Popular Democratic Party

as OFP Director, and allegedly

as a

Ramon

because

the OFP

later

In November

rejected by

Ortiz that he

directorship

was

"confidential" position which the new administration was entitled

to fill.

Progressive

Ortiz refused to resign.

Party (NPP) mayor,

Thereafter, the incoming New

defendant-appellee Willie Victor

Rivera Arroyo ("Rivera"), dismissed Ortiz.

In due

course, Ortiz initiated the

present action for

damages and reinstatement under 42 U.S.C.

1983 against the City

of Gurabo and Mayor Rivera, claiming political discrimination and

deprivation

of

his property

without the benefit

interest

in

continued employment

of a pretermination hearing, in violation of

the First and Fourteenth Amendments to the

United States Consti-

tution.

The defendants moved for summary judgment on the ground

that the OFP directorship is a "trust" position for which compat-

ible

political

cation.

See
___

Burns, 427 U.S.

_____

written

affiliation

Branti v. Finkel,
______
______

347 (1976).

445 U.S.

Their

"certification" from the

the responsibilities

ing

constitutes

legitimate qualifi-

507 (1980);

Elrod v.
_____

motion was accompanied

by a

City personnel office defining

of the OFP directorship.1

After determin-

that the evidence compelled a finding that the OFP director-

ship is

trust position,

judgment for defendants on

the district

all claims.

Acevedo, 900 F. Supp. 574 (D.P.R. 1995).

_______

II
II

court granted

summary

Ortiz-Pinero v.
____________

Rivera_______

DISCUSSION
DISCUSSION
__________

A.
A.

Standard of Review
Standard of Review
__________________

We review de novo,
__ ____

to determine whether the pleadings,

____________________

1The certification

lists five responsibilities:

direct,

coordinate

Federal

Programs Office"; (2)

good

and

functioning of

said

corresponding

reports to

Program, the

State Agency

gram";

(4) "[t]o

supervise

all the

"[t]o see

Office";

(3)

the Municipal

take part

delegated upon
in seminars

operations

to the

(1) "[t]o
of

the

compliance and

"[t]o submit

all

the

Services Administration
by the

C.D.G.B. Pro-

and training

that are

offered on the Federal Programs as well as to accompany the Mayor

in all

matters concerning

the Program"; and

other similar duties as assigned."

(5) "[t]o

perform

depositions, answers to interrogatories,

and admissions on file,

together with any affidavits, show that there is no genuine issue

as to any material fact and

judgment

905,

that the moving party is entitled to

as a matter of law.

906-07 (1st

Although all

viewed in

Cir.), cert.
_____

competent evidence

denied, 114
______

and

S. Ct.

634 (1993).

reasonable inferences

are

the light most favorable to Ortiz, he cannot carry the

day on mere "`conclusory

unsupported

See O'Connor v. Steeves, 994 F.2d

___ ________
_______

allegations, improbable inferences, and

speculation.'"

Id. (quoting
___

Medina-Munoz v.
____________

R.J.
____

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).

____________________

B.
B.

First Amendment Claim

First Amendment Claim
_____________________

1.
1.

Applicable Law
Applicable Law
______________

In a political discrimination case, the plaintiff first

must show that party affiliation was a

factor

for the challenged action.

Dist. Bd. of Educ. v.

___________________

Bernal v.
______

See Mount Healthy City Sch.

___ ________________________

Doyle, 429
_____

Agrait, 37 F.3d
______

1, 3

substantial or motivating

U.S. 274, 287

(1st Cir. 1994).2

(1977); Jirau______

The

burden

then shifts to defendants to establish either a nondiscriminatory

______

reason for the dismissal, see Ferrer

___ ______

(1st Cir.

1990), or that

v. Zayas, 914 F.2d 309, 311

_____

plaintiff held a

"political" position

__

for which party affiliation constituted an appropriate qualifica-

tion

for continued employment, see

___

Branti, 445 U.S.

______

at 518; De
__

Choudens v. Government Dev. Bank of P.R., 801 F.2d 5, 8 (1st Cir.

________
____________________________

1986),

cert. denied, 481 U.S.

_____ ______

1013 (1987).

Thus, the Branti/______ _

____________________

2We
competent

assume,
evidence

without
that

deciding, that
political

dismissal.

there

affiliation

is

sufficient

motivated

the

Elrod defense is designed

_____

to ensure that "representative govern-

ment not be undercut by tactics obstructing the implementation of

policies

of

the new

administration, policies

presumably sanc-

tioned by the electorate." Elrod, 427 U.S. at 367.

_____

Whether a

depend

upon

such

government position is

loose-fitting

"policymaking," but on

the
___

position itself.
________ ______

labels

the substance of
_________ __

Branti, 445
______

"political" does not

as

"confidential"

or

the duties inherent

___ ______ ________

in
__

U.S. at

518

(noting:

"a

position may be appropriately considered political even though it

is neither

confidential nor policymaking in

character," and, by

the same token, party affiliation is not a relevant consideration

for

all

policymaking

or

confidential

Feliciano v. Torres Gaztambide, 836

_________
__________________

positions);

F.2d 1, 3

see Romero
___ ______

(1st Cir.

1987)

(abjuring reliance on "rigid labels" in Branti/Elrod analysis).

______ _____

We employ

a two-part

inquiry to

identify "political"

positions under the Branti/Elrod analysis:

______ _____

First,
tions
involve
there

we inquire whether

of the employee's department or agency

"decision
is room for

goals or their
decide

the overall func-

making

on

issues

political disagreement on

implementation."

whether the

policymaker,

or agency,
privy to

tion,

a communicator,

holder

whose function

affiliation
quirement"
indicia

is

an

we

within the

resemble those

of "a

confidential informaor some

is

such

other office
that

equally appropriate

for continued tenure.

material to

Second,

particular responsibili-

ties of the plaintiff's position,

department

where

the second

party
re-

Among the
element are

"`relative

pay, technical

to control

others, authority to speak in the

name

of

policymakers,

influence on programs,
officials,

and

competence, power

public

perception,

contact with

responsiveness

to

elected
partisan

politics and political leaders.'"

O'Connor, 994
________

F.2d at

910

(quoting Jimenez Fuentes v.

________________

Torres
______

Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert.
__________
_____

denied, 481 U.S. 1014 (1987)) (other citations omitted).

______

Although obviously fact-intensive, the

mination whether a government

question of law

jury

93 (1st

Cir.

position is "political" presents a

for the court, rather than an

resolution.

ultimate deter-

issue of fact for

See McGurrin Ehrhard v. Connolly, 867 F.2d 92,

___ ________________
________

1989) (Breyer,

J.)

constitutional and governmental

(noting that

the

"important

interests surrounding the appli-

cation of the [Branti/Elrod] exception" make it more suitable for

______ _____

determination by the court).

the light most

Examining all competent evidence in

favorable to Ortiz, we conduct

ment of the relevant

factors, see In re
___ _____

a de novo assess__ ____

Howard, 996 F.2d

______

1320,

1327 (1st Cir. 1993) (plenary appellate review generally accorded

issues of law), and "make a common sense judgment in light of the

fundamental purpose to be served [by the Branti/Elrod analysis]."

______ _____

Jimenez Fuentes, 807 F.2d at 242.

_______________

2.
2.

The OFP and "Partisan Political Interests"

The OFP and "Partisan Political Interests"
_________________________________________

The OFP

the million

cies,

is charged with

or so dollars

and with doling it

within the municipality.

pal

"department

`decision making

disagreement

F.2d

or

marshaling and

administering

obtained annually from

federal agen-

out for various

Thus, the OFP unmistakably is a munici-

agency [whose

on issues

on goals or

public works projects

overall

where there

is

functions]

room for

their implementation.'"

at 910 (citations omitted).

involve

political

O'Connor, 994
________

Indeed, its inherent responsi-

bilities inevitably

entail the kinds of

discretionary decisions

traditionally associated with municipal politics.3

we

conclude

that

defendants

met the

first-prong

Accordingly,

test

under

Jimenez Fuentes.4
_______________

3.
3.

The Duties Inherent in the OFP Directorship

The Duties Inherent in the OFP Directorship
___________________________________________

Under

the second

prong, we

examine any

evidence the

defendants may have adduced that "the particular responsibilities

__________ ________________

____________________

3See id. (noting that the first prong of the Jimenez Fuentes
___ ___
_______________
test

was readily met

where the

municipal department

plaintiff worked was responsible for

public

works

success or

programs, since

developing and implementing

"[e]lections

failure of the incumbent

director of

commonwealth

with ameliorating housing conditions

families, was a position
ests"); accord
______

turn on

the

at 242 (finding that

housing department,

charged

among low and middle income

"relate[d] to partisan political inter-

Juarbe-Angueira v.
_______________

Cir. 1987) ("Where, how,

often

[administration] to provide

these services"); Jimenez Fuentes, 807 F.2d

_______________
regional

for which

Arias, 831
_____

F.2d 11,

and when the government will

15 (1st

repair or

reconstruct public buildings, . . . when and where money is to be

spent, may

well be a

matter of considerable

political leaders."), cert. denied,

_____ ______
Palou v. Rohena-Betancourt, 813
_____
_________________
(finding Administration

interest to .

. .

485 U.S. 960 (1988); Mendez_______

F.2d 1255, 1260 (1st

for Environmental Quality

Cir. 1987)

Board engaged

in a "politically-sensitive mission" for purposes of Branti/Elrod

______ _____
analysis).

4Ortiz

also contends that

the first

prong of

the Jimenez
_______

Fuentes test should focus upon the City as the pertinent "depart_______
ment or

agency," not on

this shift in
since under

the OFP.

Ortiz does not

focus would alter the

either scenario the

contend that

first-prong inquiry itself,

City or the

OFP would have

to

undertake the politically sensitive mission of allocating federal

funds among

various constituencies within the

municipality.

He

argues, instead, that the shift in focus could affect the inquiry
under prong two,
then be viewed
head of
____
Be

see infra Section II.B.3(b),

___ _____
as a

since Ortiz could

subordinate City official

the first-prong "department or agency"

that as it may, the attempt

rather than

the

(i.e., the OFP).

to distance Ortiz from political

decisionmaking not only distorts the function of the second-prong

inquiry under Jimenez Fuentes, but runs
_______________
in

O'Connor, where we focused

________

counter to our precedent

the inquiry under

prong one upon

the municipal department of public works, rather than the munici__________

_______
pality.
______

See O'Connor, 994 F.2d at 907-08; supra note 3.

___ ________
_____

of the plaintiff's position, within the [OFP], resemble those

`a policymaker,

tor,

or some

privy to confidential information,

other office

party affiliation

continued tenure."

is

holder whose

an equally

a communica-

function is

appropriate

of

such that

requirement'

for

O'Connor, 994 F.2d at 910 (citations omitted)

________

(emphasis added).

a)
a)

Lack of Written Job Description

Lack of Written Job Description
_______________________________

Ortiz first

because

argues that summary judgment

is precluded

the City of Gurabo has no official, written job descrip-

tion (a.k.a. Form OP-16) for its OFP Director, nor indeed for any
___

of its municipal

employees.

He

relies upon

cases in which

have held that courts

should determine the duties inherent

particular

by

position

examining

the

governmental

we

in a

entity's

written, signed job descriptions, rather than the duties actually

performed

by the plaintiff or prior occupants of the position in

question. See, e.g., Mendez-Palou

___ ____ ____________

1255, 1260

(1st Cir. 1987).

the absence

of any written

flicting circumstantial

v. Rohena-Betancourt, 813 F.2d

_________________

Ortiz would have

us conclude that

job description, combined

evidence as

to the duties

with con-

performed by

the OFP director, leaves unresolved issues of material fact which

preclude summary judgment.

See Romero Feliciano, 836 F.2d

___ ________________

at 3

("[W]e have considered the OP-16 dispositive in other Puerto Rico

political

discrimination cases .

misconstrues

our precedents

. . .").

and the

In so

nature of the

doing, Ortiz

issue under

consideration.

Although

written, signed job

descriptions may provide

10

highly probative evidence as

to the responsibilities inherent in

a particular

government position,

and may even

prove "disposi-

tive," see id. at 3,

___ ___

we have never suggested that their

is

Mendez-Palou, 813
____________

dispositive, cf.
___

possible,
________

we will rely

upon this

F.2d at

precludes

a defendant

from

1260 ("Whenever
________

document because

precisely the information we need . . . .")

resorting to

absence
_______

it contains

(emphasis added), or

other evidence,

see,
___

e.g., Romero Feliciano, 836 F.2d at 3 (noting that defendant "may

____ ________________

present additional

16).

evidence at

Nor does the absence

preclude

summary judgment,

trial" besides the

of a written, signed job

so long

as defendants

disputed OP-

description

adduce other

competent evidence as to the responsibilities inherent in the OFP

directorship from

which the

can be determined as a

"political" nature of

the position

matter of law, see McGurrin Ehrhard,

867

___ ________________

F.2d at 93 (ultimately, the Branti/Elrod defense poses a question

______ _____

of

law),

even

dispute.

though some

nonessential

facts

may remain

in

See Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1117

___ _____________
____________

n.5 (1st Cir. 1989).5

b)
b)

The Responsibilities Inherent in the Position

The Responsibilities Inherent in the Position
_____________________________________________

Ortiz

contends

that

the

district

court incorrectly

relied on

the lack

of a

____________________

5The

district court

description as probative
"political" position.

written job

evidence that the OFP directorship is a

__

Ortiz-Pinero, 900
____________

F. Supp. at 580 (citing

Mendez-Palou, 813 F.2d at 1262-63 ("`[A]n employee with responsi____________

bilities

that are

not well defined

likely functions in

a policymaking

427 U.S. at

But since

scription

368)).

for any position, cf.

or are of

broad scope more

position.'") (citing

the City had

Elrod,
_____

adopted no job

supra note 1,

de-

and it obviously

___
could

not reasonably

___

_____

be inferred

on that

basis that

all City

positions are "political," we give no weight to such an inference

in the present context.

11

assessed the

record evidence relating to the

the OFP directorship.

He claims that he administered the OFP in

politically-neutral fashion

mayoral

"policymaking"

duties inherent in

or

and

took no

"political"

meaningful part

decisions

in

concerning

federal

funding

allocations

among

the

various constituencies

within the municipality.

As previously

is

"political"

power

to control

noted, probative indicia that a position

include

"`relative

others,

authority to

policymakers, public perception,

with

and

elected officials, and

political leaders.'"

omitted).

compete

pay,

technical competence,

speak

in the

name

influence on programs,

of

contact

responsiveness to partisan politics

O'Connor, 994
________

F.2d at

910 (citations

Defendants adduced evidence that Ortiz had not had to

with other candidates

for the OFP

directorship.

More-

over, Ortiz concedes that he was no "expert" in the financial and

accounting aspects of the OFP's responsibilities.

the evidence does

selected for

not support

his managerial

a fair inference

Thus, we think

that Ortiz

or technical expertise.

was

Moreover,

Ortiz' prominent PDP affiliation,

(acknowledging

that,

at

see Ortiz Deposition at 179-81

___

various

times, he

activist," electoral commissioner,

was

"political

and campaign finance director

for the PDP and PDP candidates), plainly permits a fair inference

that

he was

selected

"political" service

at 93

for the

OFP

and talents.

directorship based

his

See McGurrin Ehrhard, 867 F.2d

___ ________________

(finding position "political" where

clerical

on

plaintiff, formerly a

employee, was tapped for position as director of secre-

12

tary of state's

tary's

state

advertise

regional office, after

senate

campaign,

having worked on

and where

the job, solicit applications,

Secretary

or . .

Secre-

"did

not

. consider any

[other] applicant").

More importantly, Ortiz was

whose overall

functions clearly

appointed to head the OFP,

____

involved

"`decision making

on

issues where there is room for political disagreement on goals or

their

implementation,'" under

Fuentes test.
_______

Ortiz was

the

See supra Section

___ _____

in complete charge of

first prong

II.B.2.6

of the

By his

the OFP staff,7 as

Jimenez
_______

own account,

well as the

applications for, and the administering of, all federal grant and

loan programs involving the City, amounting to approximately one____________________

6See, e.g., O'Connor, 994 F.2d at 911 ("[W]hatever difficul___ ____ ________
ties

we might face

in applying the second

Fuentes test to subordinate

_______

prong of the Jimenez

_______

positions within the Department, the

Superintendent's 'inherent responsibilities' .

. . plainly '"had

bearing on the partisan goals and policies"' of the Department

as

a whole.") (citations omitted); De Choudens, 801 F.2d at 9-10

___________

(noting that it would

have been much more likely that

the posi-

tion would be considered "political" had plaintiff been president

_________
of

the bank,

rather

Angueira, 831
________

than senior

F.2d at 15

vice-president); cf.
___

(finding it not

Juarbe_______

"clearly established"

that regional directorship of public building authority was other

than

"political" position,

even

though it

involved

only a

"'modicum' of 'policymaking responsibility,'" given that supervisory

position

was

"moderately-high-level

position

within the

agency").

7Ortiz

points out that he

supervised an OFP

staff of only

four persons (accountant, secretary, and two clerks).

noted, however, the

relative staff size, not

________

affords the more illuminating insight.

F.2d at 911

n.3 (noting that,

See,
___

As we have

its absolute size,

e.g., O'Connor, 994

____ ________

on per-capita basis,

plaintiff's

supervision of smaller municipality-level staff may be equivalent

to supervision

of much bigger

McGurrin Ehrhard,
________________
even
where

867 F.2d

though plaintiff

staff in a

at 95 (finding

supervised

larger municipality);

position "political"

four-person regional

office,

satellite branch was but one of two such offices in Massa-

chusetts).

13

third

of its municipal budget.

See Ortiz Deposition, at 29-30.8

___

Ortiz

through

reported

directly

to the

mayor,

rather

intermediaries, meeting with him on an average of six or

seven times a year.

that plaintiff

Cf. Mendez-Palou, 813 F.2d

___ ____________

performed duties with

at 1260 (noting

"only general instructions

and superficial supervision" from the administration).

as the

work

See
___

than

mayor's "eyes"

and "ears," periodically

He served

visiting public

projects and reporting back to the mayor on their progress.

McGurrin Ehrhard, 867 F.2d

________________

acted as

"eyes and

"overtly political

at 95 (noting

ears" for secretary

task[]").9

Such

that employee who

of state engaged

first-person

(thus,

in an

more

subjective) field assessments often influence policy formulation,

and policymaking influence, even though indirect, is an important

____________________

8We reject the contention

that the April 1993 certification

of duties issued by the City personnel department, see supra note

___ _____
1, is without any probative force

because it is unsigned and was

not prepared until after Ortiz left office.

Of course, an OP-16

signed by the employee has added probative value since it constitutes the employee's

contemporaneous "admission" concerning

duties inherent in the position.

unsigned
itself

certificate, by
to

its description

of the

is without

noted that an

unsigned OP-16 may

its authenticity, see

___
asserts

City prospectively
duties

probative

Nor

commits

inherent in

weight.

the OFP

Although we

leave a factual dispute

Romero Feliciano, 836

________________

no challenge either to the

of the certification.
that

But it does not follow that the

which the

directorship,

the

F.2d at 3-4,

have

as to

Ortiz

authenticity or the validity

did we suggest

in Romero Feliciano
_________________

such evidence should be completely discounted in a trial on

the merits.

9See Jimenez Fuentes, 807 F.2d at 246 (noting that

___ _______________
cal" position

holders, like directors, "monitor

the agency's programs and

stration's . . .

the progress of

thus gauge the success of

the Admini-

policies"); cf. Mendez-Palou, 813 F.2d

___ ____________

(finding it relevant that

"politi-

at 1260

plaintiff "represents the President in

activities

. .

[and gives]

top

level counselling

[to] the

President").

14

indicium of "political" positions.10

Ortiz

federal

audits

admittedly

and

received

oversight

and

reviewed

reports, including

copies

the

of

Federal

Transit Administration's Triennial Review of the City's federally

funded transit program, which identified areas where the City was

not in compliance.

See Defendant's
___

5307(i) (2).

politically-sensitive report is precisely the

type

of

This

document whose

freely with any but the

fear

Exh. 6; see also 49 U.S.C.

___ ____

contents are

not

likely to

be shared

mayor's trusted political confidants for

it might become fodder

for the political

opposition.

Cf.
___

Mendez-Palou, 813 F.2d at 1262-63 ("[W]e believe that an official

____________

working in close contact with the head of a government agency

is

also more likely to be privy to a substantial amount of confiden-

tial information. . . .").

Finally,

Municipal Ordinance

pursuant to P.R. Laws Ann. tit. 3,

municipal offices as

including

the

No. 3,

the

1981

1351, designates only eleven

positions of "trust" or

Director of

enacted in

Office

"confidentiality,"

of Federal

Programs.11

____________________

10See McGurrin Ehrhard, 867

___ ________________
tiff did not
[but]

have "final

F.2d at 94 (noting that

authority to hire

or fire

plain-

employees,

she had 'input'"); Jimenez Fuentes, 807 F.2d at 245 ("That

_______________

Regional Directors do not have final decision-making authority is

not determinative . .

. . 'because such positions

torships] are a natural

[i.e., direc-

source of influential recommendations of

changes in policy.'") (citation omitted).

11Section 1351

of the Personnel Act

provides, in pertinent

part:

1.

Each [commonwealth] agency shall present

for

approval

Personnel
the

of

the [Central]

Administration] a

confidential positions

15

Office

[of

plan containing
by which

it de-

Consistent with

Ortiz in

eleven

the ordinance,

writing on

former Mayor

December 24,

Caraballo notified

1992, that

municipal officials who must

he was among

resign to make

the

way for the

incoming NPP administration.

Against

arguments.

a nullity

this

formidable

array,

Ortiz

offers

five

First, he contends that Municipal Ordinance No. 3 is

because the defendants have not shown that it was duly

submitted to

the Central Office of

approval, as supposedly required

________

supra note 11.

_____

Personnel Administration for

by the Personnel Act.

This claim is unavailing.

But see
___ ___

On its

face, the ordinance

submitted

to

("Central

Office") for review.

______

3.

the

Central

Office

reflects that it

of

had been

Personnel Administration

See Municipal Ordinance No. 3,

___

Thus, the burden lay with Ortiz to show that the City did not

comply

with the

statutory requirements,12

and he

proffered no

____________________

sires to operate.

In the case of municipali-

ties, the Municipal Assembly shall follow the

ordinance

or

submitted by

resolution approving
the mayor and shall

the plan
send it to

the Office for the sole purpose of ascertain___ ___ ____ _______ __ __________
ing that
___ ____

the provisions of
___ __________ __

section 1350
_______ ____

of
__

this title have been complied with.

____ _____ ____ ____ ________ ____

P.R. Laws Ann. tit. 3,

the

1351 (emphasis added).

12We recognize that

the burden of proof normally

governmental entity

to establish

quirements

of its

enactment comport

that the
with the

shifts to

substantive re___________

First Amendment.

But we

have found

no authority, nor

reason, for shifting

the burden of

can we

discern any

proof where the

sound

challenging

party alleges only procedural irregularities of nonconstitutional

__________
dimension in an ordinance-enactment

process.

See, e.g., Friends

___ ____ _______

of the City Market v. Old Town Redev. Corp., 714

__________________
_____________________
(Mo. Ct.

App.

1986)

("Ordinances

are presumed

S.W.2d 569, 575

to

have

been

adopted in accordance with the requirements of the law . . . .").

16

evidence that the ordinance was not duly submitted to the Central

Office.

See O'Connor, 994

F.2d at 906-07

(noting that summary

___ ________

judgment

tions,

opponent

improbable

must proffer

inferences,

(citation omitted).

not

In all

more than

and

"'conclusory allega-

unsupported

speculation'")

events, the statutory language

does

purport to make submission to the Central Office a prerequi-

site to the validity of

________

Municipal Ordinance No. 3.

requirement of post-enactment compliance

Office, in
__

relation to
________ __

a municipal
_ _________

Rather, the

"review" by the Central

ordinance, stands
_________

in sharp

contrast to the heightened obligation of Commonwealth agencies to

____________ ________

seek Central

Office approval.
________

(mayor's "plan" to be

purpose of ascertaining

See P.R. Laws Ann. tit. 3,

___

submitted to Central Office "for

that the provisions

this title have been complied with").

1351

the sole

of section 1350

of

See Appendix A for text of

___

1350.

Second, Ortiz correctly notes that state laws identify-

ing

government positions

dispositive of

position

n.9.

the

On the other hand,

municipal ordinances

like

Ordinance No. 3

Branti/Elrod
______ _____

or "confidential"

federal-law question

is "political."

dential"

as "trust"

See
___

whether

Jimenez Fuentes, 807

_______________

we have explained that

are not

particular

F.2d at 243

state laws and

designating positions as "trust" or "confi-

P.R. Laws Ann.

are

formula,

accord Juarbe-Angueira,
______ _______________

tit. 3,

entitled to "some

1351, and

deference" under

see Jimenez Fuentes,

___ ________________

831 F.2d

Municipal

807

at 14, especially

evidence clearly points in the same direction.

F.2d at

the

246;

where other

17

Third, Ortiz attempts to

ing a Branti/Elrod defense by

______ _____

made to

him

by Mayor

estop defendants from assert-

pointing to the putative assurance

Caraballo in

August 1991,

directorship was not

a "trust"

this evidence is not

hefty enough to ward off

however.13

position, see supra

___ _____

that the

OFP

p.2.

Even

summary judgment,

For one

thing, application

of the equitable

estoppel

doctrine against governmental entities, including municipalities,

is

narrowly circumscribed.

See Heckler
___ _______

v. Community Health
_________________

Servs. of Crawford County, 467 U.S. 51, 60-62 (1984).

__________________________

any

attempt to interpose estoppel

as a bar

Moreover,

to the Branti/Elrod
______ _____

defense must fail, since reliance on the Caraballo representation

would not have been

objectively reasonable in the circumstances.

See United States v. Javier Angueira, 951 F.2d 12, 16 (1st

___ _____________
________________

1991) (noting

Cir.

that even if estoppel is available against govern-

mental entity,

"`the party

raising the [estoppel]

defense must

have reasonably relied on some "affirmative misconduct" attribut-

able to the

sovereign.'") (citations omitted); A.E. Alie & Sons

_________________

v. United States Postal Serv., 897

__________________________

F.2d 591, 593 (1st Cir. 1990)

(same).

____________________

13We note, as
far

from clear.

former

a threshold matter, that its admissibility is

See Fed. R. Civ.
___

Mayor Caraballo could

P. 56(e).

bind the

Even assuming that

City by

his representa-

tions, see
___

Fed. R. Evid. 801 (permitting

"admissions" of party______

opponent),
________

it

whether

is extremely

problematic

mayor, defendant Rivera, can be

nature of the

the successor

bound, especially since the very

1983 claim made by Ortiz appears

to preclude any

characterization of former Mayor Caraballo as a party "opponent."

As this

evidence is

otherwise deficient, however,

determine its competence at this time.

18

we need

not

Immediately prior to his

torship,

three

Ortiz, concededly

years as

brought

City

a "political

assemblyman, a
___________

all City ordinances

for

would have

constructive knowledge.

U.S. 516, 531 n.25 (1982) (noting

all persons are charged with knowledge of the provisions of

duly enacted

Beach,
_____

activist," served

position which

within his

See Texaco, Inc. v. Short, 454

___ ____________
_____

that

appointment to the OFP direc-

statutes/ordinances); Deibler
_______

790 F.2d

328, 331

(3d Cir.

v. City of Rehoboth
_________________

1986) (same);

cf. Good
___ ____

Dauphin County Social Servs. for Children and Youth,

______________________________________________________

v.

891 F.2d

1087,

1091

(3d

Cir.

1989)

officials should know laws

Ortiz

admitted to

"trust" position,

(reasonably

competent

government

governing their conduct).

Similarly,

having served

for four

as Regional Director of

years in

the Administracion de

Derecho al Trabajo, making it highly unlikely that

actual

notice of P.R. Laws

that municipalities

Ann. tit. 3,

were required

a previous

he was not on

1351,

to designate

or of the fact

certain "trust"

positions by ordinance.
__ _________

Fourth, without

rationale,

considered a

Ortiz

citing

argues that

the

either authority

OFP

or a

policy

directorship cannot

"political" position since there

be

is no requirement

that the municipal assembly approve the mayor's selection for the

post.

We think this far too

thin a reed to warrant rejection of

the traditional Branti/Elrod criteria.

______ _____

ments

(e.g., to the executive staff of

not subject

lates

Many "political" appoint-

to legislative approval, a

more closely to

the issue of

a governor or mayor) are

requirement which corre-

political accountability in

19

the legislative branch, than to the partisan political attributes

of an executive position.

Finally, Ortiz insists that the OFP directorship duties

actually

performed

administrative and

federal

by him

Mayor

the mayor regarding the

These

spent, and that

is a

merely

alone decided

how

Ortiz merely informed

administrative status of federal funding

claims

are insufficient

well-supported legal determination, see

___

OFP directorship

Caraballo were

technical, that Caraballo

funds were to be

applications.

under

"political"

to overcome

the

supra pp. 9-14, that the

_____

position.

At most,

Ortiz'

contrary characterizations, fully credited, establish the servic-

es actually rendered by Ortiz while he served as the director, as

distinguished

itself.

from the responsibilities inherent in the position

Cf. Mendez-Palou, 813 F.2d at 1258 (actual duties not as

___ ____________

probative as inherent duties).

As the ultimate issue

presented

is one

of law, rather than

93, summary

fact, McGurrin Ehrhard, 867

________________

judgment was warranted on

F.2d at

the political discrimina-

tion claim.

C.
C.

Due Process Claim

Due Process Claim
_________________

Ortiz

support

for the

advances

essentially

due process

claim:

the

same

arguments

that he had

as

a legitimate

expectation of continued employment under commonwealth law, which

gave rise to a "property right" entitling him to a pretermination

hearing.

(1985).

See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

___ _______________________
__________

The pretermination process due

matter of federal law,

a government employee is

see Rivera-Flores v.
___ _____________

20

Puerto Rico Tel.

________________

Co.,
___

64 F.3d 742, 749

question whether

"property

right,"

employment,

law.

(1st Cir. 1995),

a government

or

is controlled

whereas the preliminary

employee possessed

legitimate

by the

expectation

a protectable

of

continued

employment contract

or state

See id.
___ ___

Since

Ortiz' employment

contract

included a

clause

permitting his unilateral, unconditional termination by the mayor

at any time, commonwealth or local law would be the only possible

basis for an

ingly,

actionable claim to continued

Municipal Ordinance

process

claim, since

The

it designates

"confidential" position,

1351.

No.

is

employment.

dispositive of

the OFP

pursuant to P.R.

Accord-

the

directorship as

Laws Ann.

due

tit. 3,

Personnel Act in turn defines "confidential" appoint-

ees as, inter alios, "those who intervene or collaborate substan_____ _____

tially in the formulation

or render

of public policy, who advise

direct services to

the head

directly

of the agency,"

and are

subject to "free selection and removal." Id.

___

1350.

had

right to continued

neither a property right

employment

as OFP

Director,

nor a contract

and defendant-appellee

Thus, Ortiz

Rivera was

under no constitutional obligation to afford him a pretermination

hearing.

III
III

CONCLUSION
CONCLUSION
__________

The claims for damages are barred under the doctrine of

qualified immunity,

was "clearly

because Ortiz failed to

established" that

demonstrate that it

the OFP directorship

21

was not

"political"

position.

See Mendez-Palou,
___ ____________

Furthermore, since we conclude

directorship was

indeed a

813 F.2d

as a matter of

at 1259-60.

law that the

"political" position, the

claims for

damages and reinstatement are foreclosed on the merits.

___ _____________

the due-process claim fails because Ortiz possessed

or reasonable expectation of,

OFP

Finally,

no right to,

continued employment as OFP direc-

tor.

The judgment is affirmed; costs to appellees.

The judgment is affirmed; costs to appellees.
____________________________________________

22

Appendix A
__________

LAWS OF PUERTO RICO ANNOTATED

TITLE THREE. EXECUTIVE
CHAPTER 51. PUBLIC SERVICE PERSONNEL
SUBCHAPTER V. PERSONNEL ADMINISTRATION SYSTEM; STRUCTURE

1350. Confidential employees

Confidential employees
rate substantially in the
advise

directly or

are those who intervene

or collabo-

formulation of the public policy,

render direct

services to

the head

who

of the

agency, such as:

(1)

Officers

secretaries

appointed

by

the

Governor, their

personal

and drivers; as well as their executive and adminis-

trative assistants who answer directly to them.

(2)

Heads

of

agencies,

their

personal

secretaries

and

drivers; as well as their executive and administrative assistants

who answer directly to them.

(3) Assistant heads of agencies and their personal secretaries and drivers.
(4) Regional directors of agencies.
(5) Personal
by popular

secretaries and drivers

election,

as well

as

of officials selected

their assistants

who

answer

directly to them.
(6) Members

of boards

or standing committees

appointed by

the Governor and their respective personal secretaries.

(7) Members and personnel of boards or commissions appointed

by the Governor having a specific period of effectiveness.
(8) Personnel of

the offices of the

Puerto Rico Ex-Govern-

ors.
Confidential
removal.

Likewise

employees

confidential

though of free selection

provision of law or those
fixed by law.

shall

be

shall

may be removed

of

free

selection

and

be those

employees

who

only for good cause

whose appointment is for a

by

term pre--

Every regular employee in a career position who is appointed

to

a confidential position shall be entitled to be reinstated in

a position equal or similar to the last one he held in the career

service.