JONES, EDITH H.

JOLLY, E. GRADY

DENNIS, JAMES L. (DISSENTING)

Court Rules Texas DA Must Face Political Retaliation Claims by 3 Ex-Employees

District Attorney Ricardo Rodriguez Jr. “contends that each of the plaintiffs he fired held policymaking or confidential positions for which his trust in their loyalty was required,” said the U.S. Court of Appeals for the Fifth Circuit’s opinion.

Seven former employees of the Hidalgo County Criminal District Attorney’s office who claimed that District Attorney Ricardo Rodriguez Jr. fired them as political retaliation have won a split ruling.

In ruling, the U.S. Court of Appeals for the Fifth Circuit found that Rodriguez has qualified immunity. It dismissed the claims of four of the plaintiffs who had worked as investigators in the DA’s office, but the court allowed the remaining three ex-employees to proceed to trial.

Rodriguez took office in 2015 after defeating 32-year veteran District Attorney Rene Guerra by a landslide in 2014’s Democratic Primary and running unopposed in the general election.

The Aug. 6 opinion in Maldonado v. Rodriguez explains that the seven plaintiffs openly supported Guerra by block-walking, attending campaign events and more. Rodriguez fired them in 2015, and they sued him for violating their First Amendment rights.

“The ultimate issue … requires balancing of the plaintiffs’ First Amendment right to participate in political activity against the legitimate needs of the employer, here, the D.A.’s office, to provide efficient public service,” the opinion said. “Rodriguez contends that each of the plaintiffs he fired held policy-making or confidential positions for which his trust in their loyalty was required.”

However, Fifth Circuit Judge James Dennis dissented in part, saying the trial court found “countless issues of fact” that showed Rodriguez violated the law when terminating the seven employees. He would have dismissed Rodriguez’s appeal for all the plaintiffs.

“This circuit’s case law clearly establishes that Rodriguez’s termination of the four plaintiffs in investigator roles violated the First Amendment,” Dennis wrote.

Plaintiffs’ attorney Margie Harris, partner in Butler & Harris in Houston, said she agreed with Dennis’ dissent and will be considering whether to ask the Fifth Circuit to reconsider its ruling, or just proceed to trial with the three remaining plaintiffs.

“Any further appellate work would only further delay the ultimate trial,” Harris said. “The Fifth Circuit’s ruling still means that the district attorney, Rodriguez, will necessarily be a party and be present in the courtroom. The jury can decide on his credibility after assessing him.”

Rodriguez argued that he had qualified immunity to their claims, but the trial court denied him summary judgment, and he appealed.

Among other things, Rodriguez claimed the plaintiffs were in policy-making or confidential roles, and the First Amendment must balance the need for their political loyalty, which supports his firing them.

“Certain employees in the district attorney’s office, in addition to assistant D.A.s, must be terminable for their political activity to the extent they have significant discretion or input into deciding which kinds of crime to pursue with limited resources, which cases to pursue, how to conduct investigations, executions of warrants and arrests, and whether to recommend lenient or severe punishments,” read the opinion.

Plaintiffs Dora Munoz and Chris Yates were working in the Hidalgo County High Intensity Drug Trafficking Area Task Force, with greater responsibilities than ordinary criminal investigators, when Rodriguez fired them. He also fired criminal investigators Jorge Salazar and Santos Leal.

“As a matter of law, these four individuals’ claims are defeated by the D.A.’s qualified immunity,” the court found.

But case law does not settle whether the First Amendment would protect the other three plaintiffs: human resources coordinator Rogelio Cazares, administrative assistant Dora Maldonado, and task force employee Palmira Munoz.

“Genuine disputes of material fact exist regarding whether they can be fairly characterized as policy-makers or confidential employees,” the opinion said.

Defense lawyer, Ray Thomas, partner in Ray Thomas in McAllen, said that First Amendment rights are vital to protect, but there are exceptions.

“Our elected officials must be able to surround themselves with people they are able to trust,” Thomas said. “We’re very grateful the Fifth Circuit affirmed that important exception.”

Three of the Plaintiffs were not Decision-Makers or Policy-Makers and the Fifth Circuit has Allowed their Complaint to Proceed, despite the objections and dissenting opinion of Judge Dennis

Juan Villescas, Rodriguez’s First Assistant DA, testified that Cazares held a high-level position. According to Villescas, Cazares was the CFO of the DA’s office, whose duties included “creating and implementing employee policies,” and advising the DA on the office’s $8 million annual operating budget.

Villescas testified that the HR coordinator is part of the “inner circle who serves as a close advisor to Rodriguez, meeting with him on at least a weekly basis, sometimes daily, to make recommendations on personnel and financial matters, to help set priorities and goals of the DA office.”

Cazares, however, contradicts these statements.

He asserts that “I was certainly not the chief financial officer of the District Attorney’s office as Juan Villescas claims.” “I was never treated by Mr. Guerra or anyone else at the DA’s office as one of the ‘key personnel’ at the DA’s office. I was rarely included in brainstorming sessions with Mr. Guerra, about the policies of the office, or changes in focus – those are the conversations that, the participants told me, occurred with his First Assistant, Mr. Vasquez, and the Chiefs of the various divisions – all of whom were lawyers.” He explains that he and Guerra “never met about policies for the District Attorney’s office and he never consulted with me about any policies.

Nor did he ever ask for my advice when it came to employees or the budget. I did not have any meetings with Rodriguez along those lines. There is no way anyone could have reasonably concluded that I was in any way part of Mr. Guerra’s ‘inner circle’ or that I was his ‘close advisor.’

Neither of those assertions are true, and anyone who observed us would have known that.”

Finally, although Cazares was the HR coordinator, “[u]nder Guerra, hiring and firing decisions were left to the Department Head for staff, or staff supervisor . . . or Rene Guerra for Assistant District Attorneys.”

Juan Sifuentes, Rodriguez’s current HIDTA Commander, testified that Palmira Munoz held a key position.

According to Sifuentes, Palmira Munoz had a confidential relationship to the policymaking process, because her work drove HIDTA investigations. Palmira Munoz was the key advisor for HIDTA to Rene Guerra, the HIDTA Commander, and Assistant Commander.

Guerra disagrees with that description because [s]he was certainly not a key advisor to me. As much as I respected Palmira for her work ethic, her position was nothing more than a glorified secretary.

Pam would take information or reports that were given to her by the HIDTA agents and analyze information and prepare a summary. . . . She basically just processed information, never actually ran or conducted an intelligence operation.

Palmira Munoz also asserted that [a]bsent in my job description is any duty or responsibility for creating policy. That was not part of my job, either officially or unofficially. In fact, while I was intelligence analyst . . .

Guerra never told me or asked me to create or draft any policies for him, or to help him or anyone else do so and I was never involved in creating any policies. I was also not a close advisor to . . . Guerra.

Finally, Maldonado was an administrative assistant under an Assistant District Attorney.

She was responsible for making sure motions and pleadings were filed properly. She testified that, “[t]here is nothing ‘highly confidential’ in the DA’s files that I was privy to. Anyone at the DA’s office who wanted to look through the files that I had access to could also look through them.”

She concludes that, “[a]ll in all, my duties were mostly ministerial, involving reception work and data entry for most of the day.” Villescas, however, asserts that she “had access to and use of confidential documents and information, including investigative files.”

These genuine factual disputes speak directly to whether Cazares, Palmira Munoz, and Maldonado were policymakers or confidential employees. Further, Gunaca is inapposite to these three Plaintiffs because they were not criminal investigators and their precise position in the DA’s office chain of command is uncertain.

We lack jurisdiction to review their claims. Melton, 875 F.3d at 261.