Sheriff not liable for terminating deputies that didn’t donate to reelection. – N.C. Supreme Court.

Lloyd v. Bailey. (Also McClaughlin v. Bailey and Young v. Bailey).

During his campaign for Sheriff of Mecklenburg County, Bailey solicited campaign donations from his deputies. He was reelected and shortly thereafter terminated several deputies who had refused to contribute to the reelection campaign.

The deputies sued, claiming wrongful termination under N.C.G.S. § 153A-99, and of Article I, Sections 14 and 36 of the North Carolina Constitution.

Section 153A-99 protects county employees from specific forms of political coercion. N.C.G.S. § 153A-99 (2013). The statute provides in part that “[n]o employee may be required as a duty or condition of employment, promotion, or tenure of office to contribute funds for political or partisan purposes.” § 153A-99(d).

Bailey argued on summary judgment that the Sheriff is independent from the county government, and therefore the statute does not apply. The trial court granted summary judgment, and the Court of Appeals unanimously approved.

Section 153A-99(b)(1) defines “ ‘County employee’ or ‘employee’ ” as “any person employed by a county or any department or program thereof that is supported, in whole or in part, by county funds.” Id. § 153A-99(b)(1). Plaintiffs argued that the statute applied to them because the Sheriff’s office is financed through the county and performs integral county functions. Bailey countered that the Sheriff has sole hiring and firing authority over the department and that there is a clear demarcation between the county government and the Sheriff.

The Supreme Court agreed with Bailey, writing: “In light of the distinct demarcation between county government and the office of the sheriff, we conclude that a sheriff’s office is not a program or department of a county.”

On the issue of free speech, the plaintiff’s argued that the termination violated Sections 14 and 36 of the North Carolina Constitution. Bailey responded that 1) they would have been terminate anyway, and 2) the position of deputy is unique, and reflective of the Sheriff in a way that other positions are not.

The Court ignored the first argument, assuming instead that the termination was for refusing to donate to Bailey’s campaign. Even so, the Court reasoned, that deputies “are a reflection of their sherriff” and “by standing in the elected sheriff’s shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff’s policies are carried out.” The Court looked to precedent of the U.S. Supreme Court in Elrod v. Burns, which permitted threatening deputies with termination for party affiliation, and Branti v. Finkel, which set out that the test is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Court concluded, then, that Bailey was justified in the termination, and there was no state constitutional violation.

The issue of whether the First Amendment to the U.S. Constitution was violated was never raised in the lower courts, and therefore not preserved for consideration by the state’s highest court. I think given this outcome it likely would have ended the same way.

In one of the three appeals, McClaughlin, the plaintiff was not a police officer. But, there, the Court punted on the constitutional questions because McClaughlin failed to properly conduct tours and falsified paperwork, providing sufficient alternative means for termination.