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James B. Astrachan: A closer look at Borzilleri v. Mosby

The choice of servants is of no little importance to a prince. – Machiavelli

Former Baltimore City Assistant State’s Attorney Keri L. Borzilleri recently filed a lawsuit against her former boss, Marilyn J. Mosby. The gist of the suit is that Borzilleri, a longtime prosecutor who had weathered the transition from Patricia C. Jessamy to Gregg L. Bernstein, was fired by Mosby because she supported Bernstein in last year’s election.

Borzilleri claims she was fired four days after Mosby took office as retribution in part for holding campaign event for him at her home. She asserts that the firing violated her constitutional rights because she was free to express a preference for a candidate for public office, even if she worked in that office. Mosby has not explained the reasons for Borzilleri’s termination.

This is not a case of first impression in Maryland. In 2002, following the retirement of then-Caroline County State’s Attorney, Robert Greenleaf was appointed interim state’s attorney. When he stood for election against Jonathan Newell, he lost. Newell took office and fired several members of the office who had supported Greenleaf. They were witness coordinators, whose jobs were described as “clerical work at the experienced level.” The terminated employees sued Newell claiming their constitutional rights had been violated. Newell’s justification for termination was lack of trust.

Worcester County Circuit Judge Theodore Eschenburg (who was specially assigned to the case) granted summary judgment in favor of the government defendants, ruling that plaintiffs’ support of Greenleaf was adequate justification for termination.

The case reached the Maryland Court of Appeals, which discussed at great lengths the two tests used to determine whether a government employer lawfully discharged an employee for exercising political rights. They are the Elrod-Branti and the Pickering tests, both named for cases decided by the U.S. Supreme Court. Elrod applies where the employee was a policymaker and discharged allegedly for political patronage reasons; Pickering applies where the employee is not a policymaker.

Level of employment

In Pickering, the Supreme Court rejected the notion that a non-patronage, non-policymaking, government employee has a duty to support his superiors. Instead, it held government employees retain their right to speech as citizens on matters of public concerns, unless doing so impacts the government’s right to maintain job efficiency.

In Elrod, that court concluded if the employee is in a “policymaking position,” he can be fired over his political affiliation. But this classification placed on a former employee by the government employer is hardly dispositive, and the discharging employer is required to establish that party affiliation or other political support is an appropriate requirement for effective performance of the public office involved and that the employee’s political activities will interfere with performance.

In yet another Supreme Court decision, two assistant public defenders sued their government employer alleging they were about to be fired because of their political affiliation. The court held that party affiliation did not justify the termination because a public defender’s job duties are not determined by political philosophy – they are determined by the needs of his or her clients.

The court would appear, then, to be suggesting that at Borzilleri’s level of employment, her position may not be one of patronage or policymaking, but this remains to be established. Whether the position is a policymaking one is a question of law; determining the duties of that position is a question of fact.

In the case of the fired witness coordinators, the Maryland Court of Appeals held the appropriate test is Pickering, not Elrod-Branti, and reversed the circuit court on the constitutional issue.

Even so, the Court of Appeals declined to hold that an employee’s status as a policymaker gives the government the categorical right to fire the employee based on speech or political conduct, although if the employer can establish that the employee’s views or conduct interferes with his job, he ought to be properly dischargeable. In other words, the employer should have an easier go at firing a policymaker.

Distinction drawn

The upshot of this is, there ought to be a distinction drawn between dismissals based on campaign activity where the speech motivated the employer to fire the employee and those circumstances where patronage motivated the employer.

Even if Borzilleri is found to be a non-policymaker, a court will still need to determine if her activities interfered with her job or otherwise adversely impacted her office and her ability to function with other employees. In doing so, a court will examine the degree the employer’s activity involved a matter of public concern; the time, place, and manner of the activity; whether close working relationships are needed to do her job and the effect of the her political activities on those relationships; whether her activities may be considered hostile, abusive or insubordinate; and whether her activities impaired discipline.

Assuming a discharged employee is not a policymaker, then Pickering is employed and, if its factors favor the employee, she still must establish that her termination was related wholly or mostly due to the protected conduct – in this case, Borzilleri’s campaign activities on behalf of Bernstein.

If she does, the burden shifts to the employer to show the nine-year prosecutor would have been fired regardless of those activities.

Jim Astrachan is a principal at Astrachan Gunst Thomas PC, an adjunct professor of trademark law at the University of Baltimore School of Law and chairman of The Daily Record’s Editorial Advisory Board. The opinions expressed above are his own. He can be reached at jastrachan@agtlawyers.com.

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