Florence, Ky. attorney Gail Langendorf has filed a federal lawsuit on behalf of seven Kenton County Deputy Clerks alleging that they were fired by the new County Clerk, Rodney Eldridge because they didn’t support him in his election bid. This practice, if true as alleged, appears to be in violation of the U.S. Constitution as interpreted by the U.S. Supreme Court in Elrod v. Burns, 427 U.S. 347 (1976).  See LawReader comment below, on the law supporting the workers claims.

See the full article at: Seven sue over clerk’s firings BY CINDY SCHROEDER  Ky. com

Kenton County Judge-executive Ralph Drees and the three other fiscal court members also were sued, partly because that body “assisted Eldridge in determining how to allocate funds available to him in his capacity as county clerk, which included salaries for newly hired deputy clerks and raises for deputy clerks who (allegedly) supported Eldridge,” the suits alleged.

Kenton County Attorney Garry Edmondson, denied the women were wrongfully terminated.  He was quoted in a Ky.com article by Cindy Schroeder as saying:

“The fiscal court has nothing to do with the hirings and the firings of the county clerk,” Edmondson said. “He can do as he chooses because he’s a constitutionally elected officer.”

Edmondson said “it’s entirely within the discretion of the county clerk to do as he chooses” when it comes to hiring and firing employees.

“The only thing that the fiscal court can approve is the budget,” Edmondson said. “The line items of who the money goes to is entirely the clerk’s prerogative. (Eldridge) is confident in my conversations with him that the people who were not re-hired were people who were underperforming.”

Two deputy clerks who were identified as Eldridge supporters got 20 percent and 28 percent raises from their new boss.

The suits were filed on behalf of Lois Davis of Lakeside Park; Cynthia Sue Johnson of Ludlow; Donna Jean Wood of Taylor Mill; and Ricole Neal, Ruth Thornsburg, Virginia Wafford and Aline Summe, all of Covington. An eight worker who was also fired did not join in the lawsuit.

They seek back pay and benefits lost “because of defendants’ unlawful acts,” unspecified damages for humiliation, embarrassment, emotional suffering and “the defendants’ improper and illegal acts,” and a jury trial, their suits say. They also are asking the court to prevent the defendants from firing anyone in the future for political reasons, Langendorf said.

  The Sixth Circuit Court of Appeals has previously considered the firing of a Ky. Deputy Clerk for political reasons and they held that a dismissal for failure to support a particular party or candidate is unconstitutional. They cited  the U.S. Supreme Court ruling in
Elrod v. Burns, 427 U.S. 347 (1976): .
  See:  Caudill v. Hollan, No. 04-6017 (Fed. 6th Cir. 12/14/2005) (Fed. 6th Cir., 2005) 431 Fed3d 900   which held:

See:  431 Fed3d 900   which held:“Plaintiffs appeal from the district court’s dismissal of their claims against Defendant Doris Hollan, County Clerk for Boyd County, Kentucky. Plaintiffs allege that because they supported Defendant’s opponent in her election, Defendant failed to reappoint them to positions as deputy county clerks in violation of their First Amendment rights of free speech and free association and in violation of their Fourteenth Amendment rights.

Finding that the district court improperly granted Defendant Hollan qualified immunity with respect to certain Plaintiffs’ claims against Defendant Hollan, we AFFIRM the judgment of the district court in part, and REVERSE it in part.

Since the Supreme Court issued its opinion Elrod v. Burns, 427 U.S. 347 (1976), patronage dismissals (i.e., dismissals for failure to support a particular party or candidate) have been, in general, unconstitutional.  (Page 6)..?

KRS 121.310 says no person shall coerce or direct any employee to vote for any political party or candidate for nomination or election to any office in this state, or threaten to discharge any employee if he votes for any candidate, or discharge any employee on account of his exercise of suffrage… but Kentucky does not have a great deal of case law on this subject.  Violation of KRS 121.310 is a Class D felony offense.

KRS 121.990 Penalties.
(1) Any corporation or any officer, agent, attorney, or employee of a corporation, who knowingly violates any of the provisions of KRS 121.025, shall be fined not more than ten thousand dollars ($10,000), and, in the case of individuals, be guilty of a Class D felony.

(2) Any corporation that knowingly violates any of the provisions of KRS 121.035(1) or KRS 121.310(2) shall be fined not more than ten thousand dollars ($10,000) for each offense, and upon conviction its charter shall be forfeited or its authority to do business revoked.

(3) Any person who knowingly violates any of the provisions of KRS 121.035(2),

121.045, 121.055, 121.150 to 121.230, 121.310(1), or 121.320 shall, for each

offense, be guilty of a Class D felony. 

  If an employee is a “classified employee? of state government than they are protected from being fired for political activity under the merit system.  The issue then remains: is a Deputy Clerk a “classified employee??

The case Com., Office of Jefferson County Clerk v. Gordon, 892 S.W.2d 565 (Ky., 1994) involved a Deputy Clerk who filed a worker’s comp. claim for an injury sustained while campaigning at the direction of the County Clerk.  That decision said that while the County Clerk was under the State Office of Local Government, it was not clear if this worked to make the Deputy Clerk a “classified employee? …and the court did not answer the question. 

CLASSIFIED EMPLOYEES PROTECTED:KRS 18A.140 Prohibition against discrimination and political activities.
(1) No person shall be appointed or promoted to, or demoted or dismissed from, any
position in the
classified service, or in any way favored or discriminated against
with respect to employment in the classified services because of his political or
religious opinions or affiliations or ethnic origin or sex or disability.
KRS 18A.005 Definitions for chapter.

(1) No person shall be appointed or promoted to, or demoted or dismissed from, anyposition in the service, or in any way favored or discriminated againstwith respect to employment in the classified services because of his political orreligious opinions or affiliations or ethnic origin or sex or disability.(6) “Class” means a group of positions sufficiently similar as to duties performed, scope
of discretion and responsibility, minimum requirements of training, experience, or
skill, and such other characteristics that the same title, the same tests of fitness, and
the same schedule of compensation have been or may be applied to each position in
the group;
(7) “Classified employee” means an employee appointed to a position in the classified
service whose appointment and continued employment are subject to the classified
service provisions of this chapter;
(8) “Classified position” means a position in the executive branch of state government
that is not exempt from the classified service under KRS Chapter 16, KRS 18A.115,
KRS Chapter 151B, or any other provision of law;
(9) “Classified service” includes all the employment subject to the terms of this chapter
except for those positions expressly cited in KRS 18A.115; a “classified position” is
a position in the classified service;

   A case involving a Superintendent of a School Board discussed the difficulties faced by any employee even if protected:

 Bell v. Board of Ed. of McCreary County, 450 S.W.2d 229 (Ky., 1970)

“So, if he remains within the confines of propriety, neither neglecting his duties nor using his powers to coerce those who are subject to his official influence, he is free to engage in political activity, whether it concerns school elections or otherwise. But it is an equally harsh fact of life that if he loses, his record of performance in office had better be above reproach, because the winners also are human, and will scrutinize his armor for an Achilles heel.?

    The Kenton County case brought by Gail Langendorf is seeking relief from Federal Court on the basis that the worker’s basic constitutional right to political expression when off duty was violated.  

If the clerks were “classified employees? then the merit system would not protect them for actively campaigning for a candidate. But if they are not “classified employees? then such activity would not be forbidden by the merit system.  So Langendorf’s approach to assert constitutional protection, particularly in light of the Caudill v. Hollan case from the 6th. Circuit seems compelling.

If anyone has a Kentucky citation to a case on this subject please forward it to LawReader.  E-mail to Firstjudge@aol.com .


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