Full opinion text
ORDER BRITT, Chief Judge. This matter is before the court on motions by defendants, jointly and individually, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Memoranda and other materials have been submitted by all parties, a hearing has been held, and the matter is ripe for disposition. BACKGROUND This case is a consolidation of three actions brought by employees of the State of North Carolina filed on behalf of themselves and a class composed of other state employees who allege that they were subjected to adverse personnel actions, including terminations, demotions, transfers, coerced resignations, and coerced retirements, in violation of their rights under the First and Fourteenth Amendments of the United States Constitution. Following the change from the Hunt administration to the Martin administration large numbers of state employees in exempt positions were subjected to adverse personnel actions. The reasons for these personnel changes are in dispute. Upon Governor Martin’s victory in the November 1984 election, a transition team was formed to facilitate the change of administration. This team helped establish personnel policy, assisted in implementing the new governor’s agenda, reviewed the efficiency of the nine departments, and assisted the new department heads. The exact nature of the personnel policy established during the transition is disputed. The transition team was later replaced by a personnel committee and a special department within the Governor’s office headed by Ms. Wilma Sherrill. The personnel committee and Ms. Sherrill apparently played a very important role in the large number of personnel changes that took place during 1985 and 1986. There is some dispute regarding whether either the committee or Ms. Sherrill's office exercised a “clearance” power over proposed personnel changes. There are some indications that Governor Martin had the final word over personnel committee recommendations, including terminations. See Rann Deposition, p. 62; Carl Deposition, pp. 25-26. However, the exact relationship between the Governor, the personnel committee and Ms. Sherrill, as well as their practices, are disputed. The defendants concede that there were lists of proposed dismissals which were forwarded to the personnel committee by the various departments. See Response to Motion for Class Certification, p. 10. They deny, however, that any employee was fired for purely partisan political reasons other than those for which political affiliation is an appropriate requirement. The political affiliation and activities including campaign contributions of persons in existing positions, as well as those seeking positions, were apparently well documented. See Faircloth Deposition, p. 28; Goodson Deposition, p. 18. The extent to which these documents were used in personnel administration is less than clear. Defendants, in their joint motion, contend that plaintiffs have not been subjected to unlawful adverse personnel actions and that they are entitled to judgment as a matter of law. They also contend that there is insufficient evidence to support plaintiffs’ claim of a conspiracy. The defendants who have been sued in their individual capacities contend that they are protected by the doctrine of qualified immunity. The defendants who have been sued only in their official capacities contend that they should be dismissed as injunctive relief is not available against them. The defendants, in their individual motions, contend, alternatively, that most of the positions which the plaintiffs and class members held were ones for which political affiliation was an appropriate requirement; that some of the occupants of those positions were discharged for engaging in improper political activity while at work; and, that others were discharged for cause. The court has thoroughly reviewed all of the job descriptions, depositions, affidavits and other documents which have been submitted. After doing so, it is apparent that a decision in this case will invoke the principles of law set forth in a considerable number of cases of the Supreme Court of the United States and lower federal courts, most of which are canvassed below. I. SUMMARY OF APPLICABLE LAW ELROD-BRANTI In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a plurality held that the practice of patronage dismissals violates the First and Fourteenth Amendments of the United States Constitution. Justice Brennan noted that “patronage dismissals severely restrict political belief and association ... [and] [t]hough there is a vital need for government efficiency and effectiveness, such dismissals are on balance not the least restrictive means for fostering that end.” 427 U.S. at 372, 96 S.Ct. at 2689. Elrod did, however, recognize that “[t]here is also a need to insure that policies which the electorate has sanctioned are effectively implemented. That interest can be fully satisfied by limiting patronage dismissals to policymaking positions.” Id. Elrod did not provide any further substantive guidance in assessing these types of claims. Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), filled some of the gaps left by Elrod. Branti moved away from Elrod’s “policymaking” label and established the following: “[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518, 100 S.Ct. at 1294. As the court has noted in a previous order, the burden is on the defendants to show that political affiliation was necessary or essential to the effective performance of the positions involved. See Jones v. Dodson, 727 F.2d 1329, 1334 (4th Cir.1984). Application of the Elrod-Branti analysis is a matter of law for the court. In defendants’ joint memorandum in support of summary judgment they rely principally on the law of the First Circuit. Following the fall elections in 1984, the commonwealth government of Puerto Rico underwent a change of administration. Substantial personnel changes took place and much litigation ensued. The leading First Circuit case which sets forth a test for determining the propriety of personnel changes based on political affiliation is Jiminez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986). Jiminez set forth a two-pronged test for determining whether political affiliation is an appropriate requirement for the effective performance of a position: (1) Does the particular position relate to partisan political interests or concerns, that is, “does the position involve government decisionmaking on issues where there is room for political disagreement on goals or their implementation? Otherwise stated, do party goals or programs affect the direction, pace, or quality of governance?” (2) “If the first inquiry is satisfied, the next step is to examine the particular responsibilities of the position to determine whether it resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that political affiliation is an equally appropriate requirement.” 807 F.2d at 241-42. This court does not accept the First Circuit’s test or its application, concludes that it is too broad, not in accordance with the Supreme Court’s command in Branti, and does not aid the decisional process. Rather, the court feels that Branti itself adequately defines the test which must be applied by the court in a position-by-position analysis, taking into consideration both the description of the job, if there is one, and such other evidence as is available on the actual duties performed by the occupant. One of the few uniform points in the decisions is to admit that the determination of whether a position is one for which political affiliation is an appropriate requirement is not an easy one. Elrod, 427 U.S. at 367, 96 S.Ct. at 2686; Branti, 445 U.S. at 518, 100 S.Ct. at 1294; Jimenez Fuentes v. Torres Gaztambide, 807 F.2d at 241 (“[identifying generic categories of positions where partisan selection and rejection are permissible has, as we have seen, proven to be an elusive and intractable task.”). The court begins this task by noting the obvious and important proposition that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Branti, 445 U.S. at 517, 100 S.Ct. at 1294, citing Elrod, 427 U.S. at 366, 96 S.Ct. at 2686 (emphasis added). This proposition requires the court to examine both the nature of the employee’s duties and the government’s interests. In Elrod the court pointed out that: The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. 427 U.S. at 367-68, 96 S.Ct. at 2686-87. While under Branti the court is no longer limited to labels such as “policymaker,” Elrod’s elaboration on the inquiry is still relevant and provides a useful touchstone for the court. See p. 1381, supra. Application of the Branti principles to some of the positions at issue here brings into consideration the decision of the Fourth Circuit in Delong v. United States, 621 F.2d 618 (4th Cir.1980) as it is alleged that there were transfers which amounted to a dismissal. Under Delong application of Branti principles is limited to dismissals or adverse personnel actions that are the substantial equivalent of a dismissal. The question is “whether ... the challenged reassignment and [or] transfer can reasonably be thought to have imposed so unfair a choice between continued employment and the exercise of protected beliefs and associations as to be tantamount to the choice imposed by threatened dismissal.” 621 F.2d at 624. In so holding, the court set forth a rather complicated factual test. Delong demands that “both objective and subjective factors pertaining to the officeholder’s expectations and reliance upon the continuation of particular assignments and geographical locations in his employment” be considered. Id. [I]t would [also] be appropriate to take into account any special circumstances, including subjective expectations and reliance on the officeholder’s part in relation to the particular position held, that were actually or constructively known to the official making or threatening the transfer or reassignment, and that might reasonably be thought to increase the difficulty of the choice imposed upon the employee. Id. Plaintiffs contend that any adverse personnel action is compensable under Branti. In Jones v. Dodson the court expressly reserved the question of whether the principle can be applied to “other alterations in the employment relationship.” 727 F.2d at 1334, n. 5. This court, however, is bound by the Delong ruling and must hold the only alteration in the employment relationship that is compensable is a firing or a transfer which is the “substantial equivalent of a dismissal.” Delong. Summary disposition of Delong claims will be rare as the analysis is not simple and may involve disputed facts. In the final analysis resolution of the issue may involve only a question of law for the court or it may involve issues of fact for the jury. PICKERIN G-GIVH AN-CONNICK Pickering v. Board of Education, etc., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), found that a teacher’s First Amendment rights were violated when he was dismissed for writing a letter to a local newspaper regarding a matter of public concern. In so holding, the court noted that “[t]he problem in any case is to arrive at a balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568, 88 S.Ct. at 1734. In undertaking this balancing test the court examined whether or not a restriction of a particular public employee’s freedom of speech was necessary to maintain “discipline by [the employee’s] immediate superiors,” and whether or not a question was raised as to maintaining “harmony among co-workers.” 391 U.S. at 570, 88 S.Ct. at 1735. The court further examined whether criticism by a public employee impeded the employee’s “proper performance of his daily duties,” or “interfered with the regular operation of the ... [office/agency] generally.” 391 U.S. at 572-73, 88 S.Ct. at 1736-37. Ultimately, the court held that the teacher’s employment relationships with the board were “not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to proper functioning.” 391 U.S. at 570, 88 S.Ct. at 1735. Givhan v. Western Line Consol. School, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), made clear that the First Amendment affords protection to a public employee who communicates matters of public concern privately, rather than publicly, to his or her employer. Givhan also noted that in determining whether a private expression is protected the court may have to consider other factors not stated in Pickering. Specifically, “[w]hen a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message but also by the manner, time, and place in which it is delivered.” 439 U.S. at 415, n. 4, 99 S.Ct. at 696 n. 4. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), did not set forth any definitive standard for assessing statements made by public employees. Instead, the court further developed the Pickering balancing test and established a multi-tiered, somewhat mathematical approach to safeguarding public employees’ speech on matters of public concern. Con-nick reminds us that the threshold inquiry is one of content, that is, is the employee’s expression related to any matter of public concern? Moreover, “[w]hether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” 461 U.S. at 147-48, 103 S.Ct. at 1690-91. This determination is a question of law for the court, 461 U.S. at 148, n. 7, 103 S.Ct. at 1690-91, n. 7. Connick expressly held that “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.” 461 U.S. at 150, 103 S.Ct. at 1691 (emphasis added). Hence, the content of the employee’s expression will be considered twice. First to determine whether it was on a matter of public concern, and then again, to determine the relative degree of public interest, i.e., “a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.” 461 U.S. at 152, 103 S.Ct. at 1692-93. The following questions or components should be considered before arriving at the most appropriate balancing test: (1) whether the employee’s expression impeded his ability to perform his responsibilities; (2) whether close working relationships are essential to fulfilling public responsibilities such that “a wide degree of deference to the employer’s judgment” would be appropriate; (3) the manner, time, and place of expression (if the employee’s expression takes place at work, then an employer’s “fears that the functioning of his office was endangered” may be appropriate); and, (4) whether the context of the expression may be viewed as threatening the authority of the employer to run the office. 461 U.S. at 151-53, 103 S.Ct. at 1692-93. Once these factors have been considered, and the appropriate weights given, they enter the balancing test. Ultimately, resolution requires striking the proper constitutional balance between the opposing interests, and this in turn requires weighing the degree of “public concern” legitimately had in the particular expression of ideas — as measured by the expression’s content and context — against the degree to which the employee’s conduct is justifiably viewed by the public employer as an actual or threatened disruption of the conduct of government operations for which the employer is responsible. Jones v. Dodson, 727 F.2d at 1334; see also Connick, 461 U.S. at 152, 103 S.Ct. at 1692-93. The burden of convincing the court that the balance favors the governmental interest is the employer’s. Jones, 727 F.2d at 1334. Defendants contend that the court must engage in a Pickering analysis for most of the class members. However, a review of the materials presented discloses that most often the analysis will be under Mt. Healthy, as the reason asserted for the discharge implicates a breach of rules of employment. MT. HEALTHY In Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Court addressed the problem of mixed motive discharges and set forth a “but for” test. “Initially ... the burden [is] properly placed upon [the employee] to show that his conduct was constitutionally protected, and that this conduct was a ‘substantial factor’ — or to put it in other words, that it was a ‘motivating factor’ ” in the decision to fire or otherwise impose adverse personnel actions. 429 U.S. at 287, 97 S.Ct. at 576. Once plaintiffs meet this burden, a determination must be made as to whether the defendants “would have reached the same decision ... even in the absence of the protected conduct.” Id. A claim based upon a discharge that is — whether by concession or by proof — a “mixed motive” one of the Mt. Healthy type, will ordinarily be resolved simply by fact finding that sorts out the motives under the Mt. Healthy “but-for” test ... A critical issue in this type case is therefore likely to be the threshold motivational one: for what reason[s] was the employee discharged? If raised by the evidence, this is quintessentially a factual issue. Jones v. Dodson, 727 F.2d at 1335-36 (emphasis added). Applying the principles enunciated in these cases on motions for summary judgment involves the application of Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate where the court is satisfied “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In making this determination the court observes that even though the application of the Elrod-Branti (hereafter Branti) and Pickering-Givhan-Connick (hereafter Pickering) tests are ultimately matters of law for the court, disposition by summary judgment will not always be appropriate. In some instances there simply has not been sufficient information presented to the court for it to make a decision. In others, especially those calling for a De-long analysis, the facts may be in dispute. Where the duties are clearly defined and the parties are essentially in agreement with regard thereto, summary judgment is appropriate and will be entered. Where the court is unable to make a summary determination, ultimate resolution will require the presentation of evidence. Application of the Mt. Healthy test will rarely result in summary determination because, by its very nature, a mixed-motive discharge will require resolution of factual disputes by the jury. II. COMMENT The fact that we have three branches in our system of government is thought of most often in the context of checks and balances; i.e., by dispersing power among the three branches and by providing checks of one branch over another power is balanced. This avoids the concentration of power in the hands of one, or a few and, thus, the perils of totalitarianism which, after all, is the form of government our forefathers were seeking to avoid when the Constitution was written. However, this does not mean that there may not be any centralization of power in one branch or, indeed, in one person. In order for government to serve the people effectively and efficiently, which is its purpose — someone must have sufficient power to direct government. More importantly someone must have power to redirect government when the people so desire. And, of course, in our constitutional scheme it is the executive which provides that direction. The legislative branch of government, composed of representatives of geographical segments of the population, enacts the laws deemed by them to be in the best interest of society. The judicial branch of government, chosen in such manner as the constitution and laws direct, interprets the law and its application to insure that the constitutional standards are met and legislative intent carried out. But it is the executive branch of government that responds to the will of all of the people and proposes laws to the legislature and, once they are enacted, executes them. Power then is concentrated, to the extent permitted by the constitution, in the executive to direct and, when the people desire, redirect government. The governor, as the chief executive, and elected by all the people, is the most powerful official in state government. When a governor is elected it is important that he gain control of the machinery of state government to insure that the programs of his administration — those things which caused him to be elected — are carried out. In order to do that he must place people in key positions throughout state government who are not only committed to his vision for the state but who are also loyal to him. Former Governor James B. Hunt, Jr., a Democrat and Governor Martin’s immediate predecessor, listed by defendants as an expert witness, has testified in this action, by deposition, that there are at least four qualifications those key people must have. They must be loyal to the governor, responsive to his suggestions, effective in carrying out their duties, and committed to his program. Gaining control of state government is no easy task. When Governor Hunt began his second term in 1980 there were some 46,000 to 48,000 people employed by the state. No doubt that number has continued to grow as the population of the state grows and the people demand more services from government. It is also important for a new governor to gain control of state government quickly if his programs are to be put into effect. This may appear to state the obvious, but it is especially true because of the budgetary process of state government in North Carolina. The governor’s programs can be carried out only if the resources — the money — are available. Those resources are provided, of course, by the legislature which meets in North Carolina, in its principal session, in January of odd numbered years. A newly-elected governor is inaugurated in January of odd-numbered years shortly before the legislature convenes. Thus, he has only a short period of time to attempt to place his imprint on a budget which has been prepared, in large measure, by the administration which is being replaced. Thus, when a governor is elected on the first Tuesday of November he must immediately set about the task of preparing for an orderly transition of the reins of power some sixty days thereafter. As with the national administration in Washington facing the same task on a much larger scale, this is done by the use of a transition team. As one would expect the incoming governor’s team is composed of people who helped the governor get elected and who are loyal to him. One of the first tasks facing the new team is to identify those positions in state government where it is necessary for the new governor to place his people; i.e., people who meet the criteria outlined by former Governor Hunt. Thus, it is necessary for there to be coordination not only among those who will ultimately form the governor’s staff but also among those who will provide leadership in the various departments and agencies of state government. So it is that in forming a new administration the governor, through his transition team, first selects the people who will head the departments and agencies and then, with their input, those who will fill the other critical positions throughout state government. Once the governor takes office the task of placing his people in key positions has just begun. Since it is the governor to whom the people look to see that their mandate for his administration is carried out, it is not surprising that he maintains direct control over personnel matters throughout state government. This is done, most often, through a member of the governor’s immediate staff. The transition of government as outlined above, or its equivalent, has been taking place in this state and nation since the founding of The Republic. Since at least the days of President Andrew Jackson this transition has been referred to as the “spoils system’’, a term that, with time, came to have a less than favorable connotation. Even though it is necessary for a new administration to obtain control, the spoils system brought with it the inevitable abuse of power as career government employees were fired, demoted, or transferred to make room for supporters of the new administration. As government grew, and the need for professionalism in government employment became apparent, there arose a demand for protection for civil servants. This led to the enactment of civil service laws. The North Carolina State Personnel Act (hereafter “the Act” or SPA) is contained in General Statute § 126-1, et seq., and provides that “[n]o permanent employee subject to the State Personnel Act shall be discharged, suspended, or reduced in pay or position, except for just cause.” N.C. Gen.Stat. § 126-35. However, the Act exempts certain listed employees and provides a mechanism for the governor to designate as exempt certain other “policy-making” positions. N.C.Gen.Stat. § 126-5. The Act also contains remedial provisions for covered employees who have been aggrieved. The SPA attempts to balance the need for employee security against the necessity of executive control by the “exemption” mechanism. An employee holding a position that is non-exempt, and this covers some 98% of state employees, is “protected” by the Act and may not be discharged or treated unfavorably, without cause. An exempt employee, on the other hand, is not protected by the Act and may be discharged without cause. When James G. Martin became governor he could have requested the resignation of all exempt employees under his control, some 1,400 to 1,500, without stating a cause. However, he could not discharge any exempt employee solely because of his political affiliation, or because he did not have the endorsement of a supporter of the governor, unless the position held by that employee was one for which political affiliation is an appropriate requirement. See Elrod, supra; Branti, supra. Governor Martin, as did his predecessor Governor Hunt, chose not to request the resignation of every state employee in an exempt position, but rather, to make an evaluation of the occupant of each position to see whether that employee fit into his plans for running state government. In the course of making those evaluations the alleged facts giving rise to this lawsuit occurred as the proscribed political considerations came into play even for positions for which political affiliation is not an appropriate requirement. The proscription against firing an exempt employee does not mean that the Governor could not, in making a decision on whether to retain him, consider his party affiliation or whether he supported the Governor’s opponent in the last election, so long as the position which the employee held is not entitled to Branti protection. Nor does it mean that the Governor could not consider the opinion of his supporters in making his decision. Party affiliation and support of candidates may be indications of the loyalty and commitment the Governor could expect from that employee. Likewise, the perception by the public of the Governor’s success in carrying out his program is gauged by his supporters throughout the state. Thus, it is natural, and certainly not suspect, for the Governor to seek the opinion of his supporters when filling key positions. In his dissent in both Elrod and Branti, Justice Powell forecast the day when federal judges would face the task of deciding whether political affiliation is an appropriate requirement for a particular position in government, a task he felt should best be left to the legislative and executive branches. That day has arrived. Because of the manner in which changes were made in exempt positions when Governor Martin took office, this court must now determine, with regard to the position held by each class member, whether political affiliation was an appropriate requirement for the position. III. ANALYSIS OF CLASS MEMBERS BY DEPARTMENT The court will now undertake an analysis of the individual defendants’ motions for summary judgment as they relate to different positions and the occupants of those positions. A. DEPARTMENT OF CORRECTION Defendant Aaron J. Johnson Defendant Aaron J. Johnson (Johnson) is Secretary of the Department of Correction. North Carolina General Statute § 143B-261 provides: It shall be the duty of the Department to provide the necessary custody, supervision, and treatment to control and rehabilitate criminal offenders and juvenile delinquents and thereby to reduce the rate and costs of crime and delinquency. This department, containing both the Division of Prisons and the Division of Adult Probation/Parole, has nineteen class members remaining. One class member was employed in the Division of Adult Probation/Parole, another in the Secretary’s office, and all others in the Division of Prisons. Gordon Sauls Class member Sauls is a former Branch Manager in the Division of Adult Probation and Parole who retired in 1985. Johnson argues that Sauls’ position as a branch manager was one for which political affiliation is an appropriate requirement. He contends that Sauls’ position as a branch manager is comparable to that of an area administrator in the Division of Adult Probation and Parole. Sauls, as branch manager, oversaw approximately 55-60 people in a nine-county area. His responsibilities included see[ing] that all Adult Probation/Parole work in the 9-county branch was done each day, that [all] courts were covered by officers, [that] new clients [were] properly received, classified and assigned for supervision ... [that] all caseloads [were] managed and supervised, [and] all violators returned to court and the Parole Commission. Sauls Response to Defendants’ Joint Interrogatories No. 11. Johnson offers evidence of both the actual duties performed by Sauls and the job description for a “probation/parole branch manager.” The job description includes planning, organizing and directing, and budgetary duties. Sauls was also responsible for setting work standards and reviewing the work of his staff. In addition to plaintiffs’ blanket response that none of the class members held positions for which political affiliation is an appropriate requirement, they rely on defendant Martin’s interrogatory answers which state that political affiliation was not a necessary requirement for the performance of any class member. Such a response provides little guidance to the court, and the interrogatory answer is not binding as to any of the other defendants. The court, nevertheless, concludes that while Sauls’ position involved substantial responsibilities, ultimately, it required the exercise of professional skill and judgment, and not political affiliation with the executive. Johnson also contends that Sauls “elected” to retire after being demoted for cause (poor performance). Plaintiffs deny the allegations of poor performance and contend that since the retirement was after the demotion and was not voluntary, it was a constructive discharge. The facts being in dispute, summary disposition is inappropriate. A Delong inquiry remains. John Taylor Class member Taylor was employed as a former District Manager in the Division of Prisons until he was transferred to the Cameron Morrison Youth Center. The district manager is apparently the chief assistant to the area administrator. This position entails supervising the administration of prisons within a district. Plaintiffs contend that the district manager position is a fifth level position within the Division of Prisons and a seventh level position within the department as a whole and that occupants of the position “make no policy and have little, if any, input into the policy articulated in the Department Policy and Procedures Manual.” Johnson has submitted an extensive job description which reveals a position that is obviously important to the maintenance of an efficient and effective prison system. Among the duties listed are the following: Management and coordination of ... expenditures within the designated field command. Continual review of operational costs and request [sic] for expenditures, requisitions and job orders.... Preparation and monitoring of budgetary requests for presentation to the Area Administrator. Development and implementation of management tools to evaluate existing programs and provide a basis for planning new programs.... Public Relations: Assist the Area Ad-minpstrator] in the development of publications to insure the availability of accurate and timely information regarding the State Correction] Service. Presentation of programs to various outside organizations and representation of the Prisons Board or panel member at functions relating to the Correctional field. Several of the duties above outlined involve “policymaking” matters making political affiliation “an appropriate requirement for the effective performance of the ... office.” Branti, 445 U.S. at 518, 100 S.Ct. at 1294. Duties and responsibilities for the allocation of resources, and planning of budget requests are the essence of policy-making in government. Likewise, the evaluation of programs, the planning of new programs and public relations are areas where those in power can reasonably expect to have their “own people.” The internal operation of a state prison system is not a “political” matter; the public perception of how that prison system is operated is a “political” matter. Every election on the state level has issues raised involving the prison system. Candidates for governor must advance their positions on the size and location of facilities, the period and extent of programs, and, most importantly, the allocation of resources. When a governor is elected he is entitled to have his people in sensitive, poli-cymaking positions to assist him in carrying out the mandate he received by being elected. The court holds that this is such a position and one for which political affiliation is a proper requirement. Robert Forester Class member Forester was employed as a Corrections Superintendent III in Asheville, North Carolina, until he was dismissed in May 1985. As such he was responsible for the total operation of the Craggy Prison located in Asheville. Defendants contend that this is a position for which political affiliation is an appropriate requirement. However, defendant Johnson offers conclusory statements, such as, “[t]he job specifics for this position shows [sic] that it was policymaking,” rather than a logical argument which would support the conclusion that the head administrator of a prison is a position for which political affiliation is an appropriate requirement. Plaintiffs, likewise, provide the court with little guidance. They rely chiefly on Deputy Secretary Harvey’s concession that “superintendents are probably called upon simply to follow rather specific instructions.” Plaintiffs have pointed out that prison superintendents are far down the chain of command in the Division of Prisons. Forester contends that he had no authority to hire or fire employees without the approval of someone further up the chain of command. The job description offered by defendant Johnson does not rebut this. Furthermore, the job description does not indicate a policymaking role or similar duties for a prison superintendent. Unlike the District Manager (Taylor) above, who helps formulate budget and policy, the correctional superintendent is responsible for the internal, day-to-day management of the prison, under the guidelines and within the budget developed by others. Throughout the job description there are references to the fact that “major changes” are made or approved by others. The court concludes that Forester’s duties, while broad in scope, are clearly defined and require the exercise of professional judgment and skill, and do not require a particular political affiliation. Johnson also contends that Forester was dismissed for cause, that is, “for improper use of State vehicle, misuse of State funds, negligence, and accepting gifts from inmates.” In his interrogatory response No. 1, Forester has denied these allegations. Accordingly, summary judgment is not appropriate on this ground. Vance Gabriel Class member Gabriel was an Accounting Manager III in the Division of Prisons. Defendants contend that this is a position for which political affiliation is an appropriate requirement. A review of the job description reveals that this position is an administrative job in the purest sense. The duties are complex and important; however, they are technical, specific, and non-discretionary. This is not a position for which political affiliation is an appropriate requirement. Johnson also contends that Gabriel was dismissed for cause, that is, “for engaging in political activities on state time and property.” Gabriel has, by affidavit, denied these allegations. Accordingly, genuine issues of fact remain to be resolved. Summary judgment on this ground is inappropriate. Marcus Hughes Class member Hughes was employed as an Assistant Correctional Superintendent for Custody and Operations I until he was demoted in October 1985. According to Johnson, he was the superintendent’s righthand man. Since the court has concluded that the correctional superintendent is not a position for which political affiliation is an appropriate requirement, it is logical that this position, likewise, is one which falls under the protection of Branti. A review of the job description confirms this, revealing a position that implements well-defined policy. Johnson also contends that Hughes was demoted “for cause for negligence and failure to maintain a satisfactory and harmonious working relationship.” Johnson has failed to provide evidentiary support for this allegation and Hughes denies this was the reason for the demotion. Since there are disputed issues of material fact, summary judgment is not appropriate on this ground. A Delong inquiry also remains. Thomas Ivester Class member Ivester was employed as the Administrator of the Cameron Morrison Youth Center (at that time Correctional Administrator I) until he was demoted. According to Ivester, his duties as head of the youth center “included a great deal of administration, treatment, and security responsibility.” The job description submitted by the defendants supports this and does not particularly support defendants’ assertion that this was a position outside of Branti protection. A person in this position does work independently, but there is no significant evidence that Ivester’s position entailed policy judgments such that his political affiliation could influence or interfere with the discharge of his duties. Although the job description refers to evaluation and recommendation of “new concepts” and evaluation of budget needs, it is clear that decisions in these areas are reserved for others. The court concludes that this position is one for which political affiliation is not an appropriate requirement. Johnson also contends that Ivester was demoted because of problems with his relationship with the local community and prison security. Ivester contends there is no evidence to support this and has provided evidentiary materials which place in serious doubt the actual reasons for the demotion. As such summary judgment on this ground is not appropriate. A Delong inquiry also remains to be resolved. Bill Noland Class member Noland was, according to Johnson, “Special Assistant to the Secretary for the Administration of the Fugitive/Extradition Program.” He was a member of the Secretary’s staff and answered to the Assistant Secretary for Programs and Development. Noland has also referred to his position as “Corrections Special Services Manager.” According to Noland, his position entailed the supervision of daily operations of the extradition section. Johnson, highlighting the various budget duties and the fact that Noland supervised investigations, argues that this is a “sensitive and confidential position.” Those duties, however, appear to be non-discretionary and require Noland to follow established guidelines. Noland argues that his job entailed administrative, technical, nonpolicymaking duties. After review of the job description material, and Noland’s interrogatory responses, the court concludes that this is not a position for which political affiliation is an appropriate requirement. Charles Hawley Class member Hawley was employed as a Correctional Superintendent I for a minimum custody facility. Hawley’s position involved managing the operation of a prison field unit, in his case a minimum custody facility, which includes custody, programs, food service and maintenance. This position is no longer classified as “exempt” under the North Carolina Personnel Act. Nevertheless, Johnson maintains that the position is one which relates to “partisan political interests ... [or] concerns.” Johnson offers the following: “Whether prisons should be places where inmates are to be coddled or provided with only minimal services or are to be punished or rehabilitated are likely to be significant political issues.” This comment states the obvious and misses the point. The inquiry does not depend so much on the political interest of Hawley’s profession as it does on his role within it, that is, whether Hawley occupied a position for which it could be said that his private political beliefs would interfere with the effective discharge of his duties. The extent to which independent judgment is a part of his job, and the nature and extent of discretion he may exercise are the relevant considerations. Hawley is a manager who had specific additional responsibilities because he was dealing with an inmate population. He was, nevertheless, simply an administrator and a manager. He was neither a policymaker nor a key player in the policy administration of corrections in the State of North Carolina. He occupied a position which demands professional judgment and skills, not political affiliation with the executive. Correctional Superintendents II: Perry Hilliard, Bruce Marion, Ralph Stamey, and Phillip Styles Class members Hilliard, Marion, Stamey and Styles were all Correctional Superintendents II in the Division of Prisons. This position entails overseeing the operation of a prison field unit within a larger prison institution. The responsibilities of the position include all those traditionally associated with any manager of a service facility with the added custody and security responsibilities attendant to a correctional institution. The job description presents a picture of a relatively independent position; however, any major changes are reviewed and approved by the prison administration. Additionally, these superintendents do not have final authority with respect to disciplinary actions against inmates or employees. Upon consideration of the job descriptions and all other materials submitted, the court concludes that the duties involved in these positions are clearly defined, and involve the exercise of professional judgment and skills. Political affiliation is not an appropriate requirement for these positions. Johnson also contends that Hilliard was allowed to retire in lieu of being dismissed for poor performance. Plaintiffs contend that there is no evidence to support the claim of poor performance. Johnson has failed to provide sufficient evidence to support this argument, and the court is persuaded that genuine issues of material fact remain to be resolved. Summary judgment on this ground is not appropriate. Patricia McQuillan Between 1 November 1984 and 5 January 1985 class member McQuillan was serving as a Public Information Officer. In March 1985 she was transferred and promoted to “Special Assistant for Accreditation.” Both of these positions were classified as “exempt” under the North Carolina Personnel Act. In 1987 McQuillan’s position as special assistant was abolished by the General Assembly. McQuillan’s position as a public information officer involved participation in public forums and public speaking engagements. Without further elaboration, the court notes that that position was one for which political affiliation was an appropriate requirement. See Branti, 445 U.S. at 518, 100 S.Ct. at 1294. Accordingly, defendant Johnson was free to have McQuillan removed from that position. Further, McQuillan’s move from that position was a promotion which cannot be characterized as an “adverse personnel action.” McQuillan now contends that the abolition of her second position as a special assistant for accreditation was an “adverse personnel action” properly within the scope of the class defined by the court. The court disagrees. McQuillan contends that shortly before her position was abolished she was asked about her support of a Democratic candidate for governor. She further alleges that she was advised that her position was going to be abolished by defendant Johnson regardless of what the General Assembly did. Such an allegation does not state a claim within the scope of this class action. The court is concerned with what did happen, not what could have, or would have happened. The abolition of McQuillan’s position by the General Assembly is not an adverse action within the meaning of this lawsuit. Thomas S. Ryon, Jr. Class member Ryon was employed as the Deputy Secretary of Correction. Johnson points out that Ryon, as the deputy secretary, was the “stand-in” and chief assistant to the secretary, and contends that this was a policymaking position with significant responsibilities. The deputy secretary assumes the responsibilities of the chief budget officer and, according to the defendants, it is the responsibility of the deputy secretary to present the department’s budget to the legislature. The job description for the position provides: Under the Secretary, this is high-level administrative and management work in developing and implementing the programs of the Department of Correction. Employee represents the Secretary in all departmental matters in his absence, and handles significant special assignments as delegated. Work involves responsibility for planning and coordinating the property management, contractual services, fiscal, organization, and procurement matters between the chief business management and administrative officials of the Division of Prisons, Adult Probation/Parole, and the Parole Commission. Policy formulation, long range planning, organizational review, and improvement and determination of budgetary needs are prime responsibilities of this position. Plaintiffs continue to rely on the argument that no class member held a position for which political affiliation is an appropriate requirement. They also rely extensively on Ryon’s discussion of what he actually did while holding that position, that is, primarily financial responsibilities, including preparing a budget. See Ryon Deposition, pp. 13-14. Ryon contends that he was not involved in the “policy planning end of things,” and that he was not “specifically charged with insuring that the Governor’s programs were carried out within the divisions, within the Department of Corrections.” Ryon Deposition, pp. 25-26. Upon consideration of the materials submitted, case law, and common sense, the court concludes that the position of Deputy Secretary of Correction is one for which political affiliation is an appropriate requirement and, therefore, Ryon is not entitled to Branti protection. Area Administrators: Robert Barbour, Talmadge Barnett, Raymond Jarvis, David Luther, and Harvey Yow Class members Barbour, Barnett, Jarvis, Luther and Yow were all area administrators for the Division of Prisons. There are six area administrators for the State of North Carolina. Three area administrators serve under the eastern geographic command manager and three serve under the western manager. These managers report to the assistant or deputy director who in turn reports to the director of the Division of Prisons. Thus, area administrators are at the fourth level of authority within the Division of Prisons, and the sixth level of authority within the Department of Correction as a whole. Johnson has submitted job descriptions for these positions and his interpretation of their duties and responsibilities. The job description for a Correctional Administrator I (area administrator) begins by stating that: Employees in this class administer and coordinate the overall correctional operations for a large geographic area of the State or for a complex. Employees provide supervision for ten to twelve field units and, in some cases, a backup institution or for a complex composed of several institutions or facilities. Employees participate in the development of Division policy and disseminate this to the field units or institutions.... (emphasis added.) These positions obviously have substantial responsibility and involve not only a wealth of administrative tasks, but also the considerable exercise of independent judgment. While the job description does state that “major changes in organizational structure, programs, or procedures are approved by prison administration” the job description is explicit in stating the role of these positions in policymaking. For example, it states that “[ljong-range planning is made by prison administration with significant input from employees in this class.” (emphasis added). The materials submitted by the plaintiffs do not sufficiently rebut the accuracy of this job description. Yow testified during his deposition that the job description accurately describes the duties and responsibilities of an area administrator. He testified that in his opinion “the part over policy [sic] development is overemphasized in this job description,” that in his actual personal experience he did not actually participate that much in the development of policy that affected the Department of Correction or the Division of Prisons throughout the state. Generally that policy was developed at the Raleigh level, and, of course, 1 was given the opportunity to review the policy and make recommendations before most of them were finally disseminated to the field, (emphasis added). Yow further testified that he did not, as an area administrator, vote on the adoption of a policy, even though he did have “input and an opportunity to comment on policy.” Yow Deposition, pp. 10-11. Yow also testified that it was an area administrator’s responsibility to explain new policies to superintendents and other subordinates in the area office, and to see that policies were carried out. Yow Deposition, pp. 11-12. Barbour’s affidavit states that “[a]rea administrators sometimes have input into these policies, but decisions as to final policies are made in the Secretary’s and the Director’s office.” Barbour Affidavit, p. 2. Barbour also contends that “Departmental policies are set out in a great deal of detail in the Policies and Procedures Manual[, and] there is limited discretion in [the] application of these policies and procedures.” Affidavit, p. 3. Johnson characterizes area administrators as “chief policymaking positions in the Division of Prisons,” and as a key link between the Secretary of Correction and the Division of Prisons. Plaintiffs, on the other hand, characterize these positions as “field operations personnel who are in no way a chief link between the Raleigh headquarters of the Department of Corrections and the Raleigh headquarters of the Division of Prisons.” All five area administrators were career employees with between eighteen and twenty-eight years of service with the department. Regrettable as their separation from state employment may be, this is not the appropriate forum for reviewing the judgment, or lack thereof, exercised by a new administration. These positions involve input into policymaking, and these class members exercised considerable control over departmental policies in the way that they interpreted and disseminated information with respect to these policies and insured that they were carried out. The court concludes that these are positions for which political affiliation is an appropriate requirement. To summarize, the court concludes that as to the positions held by class members Barbour, Barnett, Jarvis, Luther, Ryon, Taylor, and Yow political affiliation was an appropriate requirement and Johnson’s motion for summary judgment against those class members will be allowed. Class member McQuillan is not properly within this class, and the motion for summary judgment as to her will be allowed. As to the positions held by class members Forester, Gabriel, Hawley, Hilliard, Hughes, Ives-ter, Marion, Noland, Sauls, Stamey and Styles, political affiliation was not an appropriate requirement and summary judgment will be entered so holding. An issue of fact remains with regard to the discharge of class members Forester, Gabriel, Hilliard, Hughes, and Ivester. B. DEPARTMENT OF HUMAN RESOURCES Phillip J. Kirk and David T. Flaherty According to N.C.Gen.Stat. § 143B-137 the duties of the Department of Human Resources are as follows: ... to provide the necessary management, development of policy, and establishment and enforcement of standards for the provision of services in the fields of general and mental health and rehabilitation with the basic goal being to assist all citizens.... Defendant Phillip J. Kirk is the former Secretary of the department. He served from January 1985 to February 1987 at which time defendant David T. Flaherty assumed the position. This is the largest department in North Carolina state government, and there are twenty-one remaining class members who were or are employed there. Betty R. Albright Class member Albright was employed as Director of the Juvenile Evaluation Center until she was dismissed in April 1985. Defendants contend that Albright occupied a position for which political affiliation is an appropriate requirement. Kirk has submitted his own affidavit and a job description for the position. The court notes that this job description was prepared when Donald Pagett, also a class member in this action, occupied the position and was approved by him. The defendants have not submitted a job description approved by Albright, and plaintiffs challenge the complete accuracy of the description submitted. They contend that “the job description was ‘inflated’ in over-emphasizing the responsibilities of the position because it had been prepared for the purpose of obtaining and [sic] increase in salary grade for Mr. Pagett.” With this in mind, the court will now consider the materials submitted and the various accounts of the responsibilities of the Director of the Juvenile Evaluation Center. In her capacity as Director of the Center Albright had traditional management and administrative responsibilities. She also had the additional security and rehabilitation concerns attendant to such an institution. The court has already concluded that these duties and responsibilities, in and of themselves, are not of a character that would make political affiliation an appropriate requirement for the effective performance of the position. See Discussion of class members Forester, Ivester, Hawley, Hilliard, supra. However, Albright also served as a member of the Divisional Management Team which “is responsible for recommending, reviewing and implementing policies and procedures to guide the entire Division." Kirk-Albright Affidavit, p. 2. (emphasis added). The court concludes that this added responsibility transformed Albright’s position into one for which political affiliation is an appropriate requirement. Since Albright had input into division-wide policy, the defendants could legitimately question her commitment to the new administration’s agenda with respect to policies concerning the Division for Youth Services. William R. Atkinson Class member Atkinson was employed as Assistant Deputy Director for Institutional Services, Division for Youth Services. Defendants contend that Atkinson occupied a position for which political affiliation is an appropriate requirement. The court has reviewed the job description, Kirk’s affidavit, and Atkinson’s affidavit. The job description explicitly states that the “primary responsibility of this position is providing executive management and leadership to this division of State Government. This position provides management and leadership functions by making policy decisions_” (emphasis added.) Additionally, Atkinson has conceded that he was “responsible for implementing the Division programs,” and that he provided information and recommendations or advice to the Division Director and Secretary on policy matters. Atkinson Affidavit, pp. 1-2. Elrod v. Burns approved “consideration ... [by the public employer as] to whether the employee acts as an adviser or formulates plans for the implementation of broad goals.” 427 U.S. at 368, 96 S.Ct. at 2687. Branti did not abandon this inquiry. 445 U.S. at 511, 100 S.Ct. at 1291. The court concludes that Atkinson, as Assistant Deputy Director for Institutional Services, Division for Youth Services, occupied a position for which political affiliation is an appropriate requirement. Allison Barham Class member Barham was employed as a Business Officer III in the Division for Youth Services. Defendants argue that his position is one for which political affiliation is an appropriate requirement. They rely on Kirk’s affidavit, and a job description. The most pertinent provision of the description is that “this position has the overall responsibility for the control, expenditure and accountability for approximately $15 million annually.” Neither the defendants nor the plaintiffs have provided the court with any significant guidance in how such considerable fiscal responsibility should be reviewed under Branti. Defendants argue that “[t]he allocation of finite resources, decisions as to which programs to fund at various levels, and decisions as to legislative strategies all involve ‘deci-sionmaking on issues where there is room for political disagreement on goals or their implementation.’ ” (Citation omitted.) This argument might be persuasive if it were supported by evidence. It is not. The job description does provide that the Chief Fiscal Officer “[s]upervise[s] and assists] in the preparation and present