VI. POLICYMAKERS
A. Final Authority to Make Policy under State Law
The policymaker is most easily identified in situations where the legislative body of the entity acts. There, unquestionably, the policymaker has established policy.81 It is when the legislative body has not acted that difficult questions arise.
In Pembaur v. City of Cincinnati,82 the Court in a plurality opinion held that officials other than the properly constituted legislative body of a municipality could create municipal policy. The Court stated: "If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government 'policy' as that term is commonly understood."83
Justice William Brennan's plurality opinion went on to state:
Having said this much, we hasten to emphasize that not every decision by municipal officers automatically subjects the municipality to § 1983 liability. Municipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered. The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final government policy respecting such activity before the municipality can be held liable. Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority and, of course, whether an official had final policymaking authority is a question of state law.
Thus, for example, the County Sheriff may have discretion to hire and fire employees without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff's decisions respecting employment would not give rise to municipal liability, although similar decisions with respect to law enforcement practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment policy was set by the Board of County Commissioners, only that body's decisions would provide a basis for county liability. This would be true even if the Board left the Sheriff discretion to hire and fire employees and the Sheriff exercised that discretion in an unconstitutional manner; the decision to act unlawfully would not be a decision of the Board. However, if the Board delegated its power to establish final employment policy to the Sheriff, the Sheriff's decisions would represent county policy and could give rise to municipal liability.84
The Supreme Court attempted to clarify the issue of final authority to make municipal policy the following year in City of St. Louis v. Praprotnik.85 Unfortunately, a deeply divided Court again resulted in a plurality opinion. Relying heavily upon Justice Brennan's opinion in Pembaur, the Supreme Court reversed a finding of liability against the city of St. Louis for alleged retaliation in the disciplining and ultimate layoff of a city employee.86
The Court reiterated that identifying policymakers with final authority was not a question of federal law but a question of state law. Moreover, the Court stated that the identification of policymakers is not a question of fact but a question for the Court to determine as a matter of law.87 Acknowledging there would be "a rich variety of ways in which the power of government is distributed," the Court was confident that "state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business."88
The Court then touched upon the issue that has given rise to some of the most difficult determinations in this area: when a municipal policymaker has delegated decision making authority to another official. The Court stated the mere exercise of discretion by an employee will not give rise to a constitutional violation, as that result would be indistinguishable from respondeat superior liability.
The Court also acknowledged, however, policymakers could not insulate a municipality from liability simply by delegating their policymaking authority to others.89 The Court then outlined guiding principles in addressing the issue. The Court, relying upon Pembaur, stated the relevant authority to make municipal policy for Monell liability was necessarily the authority to make final municipal policy:
When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.90
Rejecting the court of appeals' conclusion that Praprotnik's supervisors were policymakers, the Court stated that simply going along with discretionary decisions made by subordinates was not a delegation to the subordinates to make policy. As the Court noted, "It is equally consistent with the presumption that the subordinates are faithfully attempting to comply with the policies that are supposed to guide them."91
The Court observed that it would be a different matter if a particular decision made by a subordinate was in the form of a policy statement and was then expressly approved by the policymaker. It would also be a different matter, the Court stated, if a series of decisions by a subordinate manifested a custom or usage of which the policymaker must have been aware but failed to act. The Court then concluded by stating:
But the mere failure to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority, especially where (as here) the wrongfulness of the subordinate's decision arises from a retaliatory motive or other unstated rationale. In such circumstances, the purpose of § 1983 would not be served by treating a subordinate employee's decision as if it were a reflection of municipal policy.92
In Jett v. Dallas Independent School District,93 the Court held that municipal policy could only be established by "those officials or governmental bodies who speak with final policymaking authority for the local government actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue."94
Given the Supreme Court's struggle to create a coherent standard, it is not surprising that this has proven to be one of the more difficult areas in § 1983 litigation. It is difficult to reconcile successive sentences in some of the Supreme Court's opinions. What the Court gives on the one hand, it apparently takes away with the other. The courts of appeals have faired little better in their attempts to create a uniform standard.
In Walden v. City of Providence, Rhode Island,95 two groups of current and former employees of the police and fire departments of the Providence, and their families, sued the city and several city employees in their personal capacities. An automatic recording system at the city's new Public Safety Complex, which housed the police and fire departments, recorded all telephone calls into and out of the complex from the time the telephone system began operating in May 2002 until February 2003. Plaintiffs claimed the defendants, Manuel Vieira, director of communications until February 2003, and Mary Lennon, chief of operations of communications until February 2003, were responsible for putting the recording system in place, and the recording of the calls violated plaintiffs' rights under the Fourth Amendment. The defendants never listened to any of the plaintiffs' calls.
Plaintiffs argued, and the district court agreed, that Vieira was a final policymaker with respect to the decisions to procure and implement the Total Recall system. They argued Vieira was responsible for the request for proposals and the actual decision to award Expanets the bid. They also argued he had final authority with respect to how the system was implemented. The First Circuit rejected the arguments and the district court's ruling. "Both as a matter of state law and in practice, Vieira did not have final policymaking authority over the decision to procure the recording system and award Expanets the bid."96 The court then held:
Plaintiffs claim, and the district court held, that Vieira was nonetheless the final policymaker because he recommended to the Commissioner of Public Safety and Sepe that Expanets' bid be accepted and both of them deferentially reviewed his recommendation. That conclusion is contrary to the relevant law. "Simply going along with discretionary decisions made by one's subordinates . . . is not a delegation to them of the authority to make policy." Praprotnik, 485 U.S. at 130. It also ignores the fact that the Board of Contract and Supply ultimately voted to award the bid, and there is no argument that the board did not independently review the merits of Expanets' proposal.97
In Beck v. Hastings on Hudson Union Free School District,98 the Second Circuit held the Board of Education was the final policymaker for a school district on employment matters, but the plaintiff failed to demonstrate the school board approved of discriminatory views held by administrators or acted with deliberate indifference to the plaintiff's allegations of discrimination. However, the Second Circuit more recently arrived at what could be considered a...
