O'neal Terry, Mary Jane Brown,, Steve Strickland, J.d.hopkins, Amy Henderson, John R. Turner, Dora Latham, Gradysanderson, Maurice Stovall, Jackie Terry, Sharon Latham,andrew Allen, Belinda Wilkerson, Joy Suski, Lavon Wallace,vernon Bradford, James Jett, Harold Smith, Lionel M. Sheffeyand Richard Turner, Plaintiffs-appellants, v. A.c. Cook, Individually and in His Official Capacity Assheriff of Lawrence County, Alabama; Paul D. Cain,individually and in His Official Capacity As Chief Deputysheriff of Lawrence County, Alabama; Earl "sonny" Malcom,jr., Coy Dwight Gray, Ferman Grimes, Randy Waldrep, Larrylouallen, and Mose Jones, Jr., in Their Official Capacitiesas Chairman and Members of the Lawrence County Commission,defendants-appellees, 866 F.2d 373 (11th Cir. 1989)

In short, if conditioning the retention of public employment on the employee's support of the in-party is to survive constitutional challenge, it must further some vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained must outweigh the loss of constitutionally protected rights.

427 U.S. at 363, 96 S. Ct. at 2685 (footnote omitted). Justice Brennan found limiting allowable patronage dismissals to policymaking positions to be a sufficient, less restrictive means of achieving government effectiveness and efficiency and of promoting the democratic process. In a brief concurrence, Justice Stewart wrote that " [t]he single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot." Id. at 375, 96 S. Ct. at 2690 (citation omitted).

Several years later, the Supreme Court, again faced with the issue of political patronage, balanced the factors in favor of the discharged employees and refined the Elrod analysis. In Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980), the Court considered a Democratic Public Defender's discharge of two assistant public defenders because they were Republicans; all assistants retained or appointed were Democrats or were selected by the Democratic legislators or town chairman using criteria that had been outlined by the Democratic caucus. The Court reasoned that, because an assistant public defender's primary responsibility is to represent individual citizens in controversy with the state, his employment could not properly be contingent upon allegiance to the political party in control of the county government. The Court held that, under the circumstances presented, such a requirement would undermine rather than promote effective job performance. Id. at 519-20, 100 S. Ct. at 1295-96.

In the present case, the district court concluded that Elrod and Branti had been modified by the Supreme Court's rationale in Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), in which the Court visited the question of employee expression and its effect upon continued employment. In Connick, an assistant district attorney had been discharged for circulating a questionnaire soliciting the views of co-workers on the office transfer policy, grievance procedures, morale, confidence in supervisors, and whether employees felt pressured to work for political campaigns. The Court acknowledged the public concern raised by the issue of pressure to campaign but held that the questionnaire, considered in its entirety, related to matters of public concern in such a limited way that discharge did not offend the first amendment. In the Court's view, the questionnaire was primarily an employee grievance that concerned internal office policy whose limited first amendment implications did not outweigh the interest of the employer.

The Connick analysis requires that the court determine if an employee is speaking about matters of public concern and balance that interest against the employer's interest in efficiency and discipline. Although the Court noted that official pressure to campaign is a coercion of belief that violates fundamental rights, 461 U.S. at 149, 103 S. Ct. at 1691 (citing Branti, 445 U.S. at 515-16, 100 S. Ct. at 1294-95; Elrod, 427 U.S. 347, 96 S. Ct. 2673), the Court did not explore the issue of loyalty and its effect on an employee's performance; neither did the Connick Court equate the employer's decision to terminate the assistant district attorney with the wholesale patronage dismissal examined in Elrod and Branti.

We are troubled by the district court's synthesis of the Elrod-Branti and Connick analyses and the resulting equation of patronage cases with employee speech cases not involving patronage practices; we disagree with the district court's determination that Connick controls the case before this court. The factors identified in Connick are not relevant in cases when employees are discharged en masse by a prospective employer or supervisor. See, e.g., Joyner v. Lancaster, 815 F.2d 20 (4th Cir. 1987) (discharge of one deputy sheriff by newly elected sheriff for loud and open campaign for the opposition when twenty to thirty other employees stated that deputy's activities were causing "pervasive distrust and plummeting morale" subject to Connick analysis); Jones v. Dodson, 727 F.2d 1329, 1334 n. 6 (4th Cir. 1984) (raw political patronage discharge of Elrod-Branti type properly treated as narrow, special cases; such analysis not suited to "personal, political loyalty" situations or to "employee expressions" involving insubordination or dereliction of duty having a political tinge, or, conceivably, deliberately given a political cloak). Although the cases may overlap in some areas, it is important to retain the distinction between actions that assert employees' right of expression and actions that challenge discharge decisions based on political patronage. The case before this court is an example of the latter. A wholesale refusal to retain employees who supported an opponent's election elevates political support to a job requirement. We see no practical difference between the lack of loyalty punished by Sheriff Cook in this case and the lack of party affiliation punished by the defendants in Elrod and Branti. Whether affiliated with a party or an individual, public employment in each case was absolutely conditioned upon political allegiance and not upon the content of expressions of political beliefs. Under these circumstances, the Elrod-Branti analysis is the appropriate one and this court must determine whether political loyalty is an appropriate requirement for employment under these circumstances.

Under Alabama law, a deputy sheriff is the general agent of and empowered to enter into business transactions for the sheriff. Any transaction within the scope of the sheriff's duties may be acted upon by his deputy. Ramsey v. Strobach, 52 Ala. 513, 515 (1875). The deputy sheriff is the alter ego of the sheriff, Mosely v. Kennedy, 245 Ala. 448, 17 So. 2d 536, 537 (1944) (citations omitted), and the sheriff is civilly liable for actions committed by a deputy done in the performance of his duty. Taylor v. Gibson, 529 F.2d 709, 716 (5th Cir. 1976); Salter v. Tillman, 420 F. Supp. 5, 8 (S.D. Ala. 1975); Perkins v. Hopkins, 14 Ala. 536, 537 (1848).

At least one court has recognized that " ' [i]t was never contemplated that the sheriffs of the state must perform the powers and duties vested in them through deputies or assistants selected by someone else.' " Tanner v. McCall, 625 F.2d 1183, 1186 (5th Cir. 1980) (quoting Blackburn v. Brorein, 70 So. 2d 293, 298 (Fla.1954)). The district court in Whited v. Fields, 581 F. Supp. 1444, 1456 (W.D. Va. 1984), interpreting Virginia law, likewise recognized:

Is it not then a matter of vital government interest that the sheriff have complete and absolute control and authority over who his deputy sheriff will be regardless of any first amendment limitations if he is totally responsible for the acts of his subordinates? This court is of the opinion that unless this is the exception that the Court had in mind when it laid down the Elrod-Branti principles, then no exception exists and the Court should have so stated. To mandate that a sheriff must accept the deputies that he finds in office simply because they belong to another political party even though he is totally responsible for all their acts is incredible, and beyond the bounds of common sense.

Id. We agree. The closeness and cooperation required between sheriffs and their deputies necessitates the sheriff's absolute authority over their appointment and/or retention.

Under the Elrod-Branti standard, loyalty to the individual sheriff and the goals and policies he seeks to implement through his office is an appropriate requirement for the effective performance of a deputy sheriff. Such a requirement strikes at the heart of the Elrod-Branti least restrictive means test which balances first amendment rights of the deputies and the need for efficient and effective delivery of public services. We can find no less restrictive means for meeting the needs of public service in the case of the sheriff's deputy than to acknowledge a sheriff's absolute authority of appointment and to decline to reinstate those who did not support him.

C. The Clerks, Investigators, Dispatchers, Jailers, and Process Servers

It has not been established that loyalty to an individual sheriff is an appropriate requirement for effective job performance for the remaining positions of clerk, investigator, dispatcher, jailer, and process server. This is a determination that depends upon the actual responsibilities of each position and the relationship of each to the sheriff. Indeed, in Branti, the Court acknowledged that the duties of the employees, who included a process server, bailiff, and security guard, were not of such character that party affiliation was an acceptable requirement for employment. 445 U.S. at 517, 100 S. Ct. at 1294. Such positions traditionally revolve around limited objectives and defined duties and do not require those holding them to function as the alter ego of the sheriff or ensure that the policies and goals of the office are implemented. Although it can be said that each job in the sheriff's office implements the policies of the office, the limited and defined roles these five positions tend to play do not support the need for political loyalty to the individual sheriff.

We thus find that it does not appear beyond doubt that the remaining plaintiffs can prove no set of facts which would entitle them to relief and remand to the district court for a determination of the actual responsibilities of each position and whether political loyalty to the elected sheriff is a reasonably appropriate requirement for the effective performance of those jobs.

Our inquiry must still consider whether the remaining plaintiffs properly applied for reemployment. In McBee v. Jim Hogg County, Texas, 730 F.2d 1009 (5th Cir. 1984), the Fifth Circuit, sitting en banc, held that the first amendment does not require a new sheriff to consider for appointed positions ex-employees who do not seek reinstatement. Id. at 1015. The district court relied on this language and directed the plaintiffs to specify in the amended complaints whether they had applied for reinstatement.

Courts have long recognized circumstances in which a failure to apply may be overcome by facts which demonstrate the futility of such application. See, e.g., International Bhd. of Teamsters v. United States, 431 U.S. 324, 366, 368, 97 S. Ct. 1843, 1870, 1871, 52 L. Ed. 2d 396 (1977) (Title VII and National Labor Relations Act recognize that failure to submit futile application does not bar relief; nonapplicant incumbent employee must show that they would have applied but for discrimination and would have been discriminatorily rejected if they had); Franks v. Bowman Transportation Co., 495 F.2d 398, 418-19 (5th Cir. 1974) (employer's heavy reliance on word of mouth recruiting isolated blacks or discouraged them from applying); Bing v. Roadway Express, Inc., 485 F.2d 441, 451 (5th Cir. 1973) (Roadway's known discriminatory practices "intimidated and discouraged" blacks from applying); see also Simmons v. Lyons, 746 F.2d 265, 268 (5th Cir. 1984) (the plaintiffs were never discouraged from applying or told that they should not apply).

The plaintiffs alleged that they sought to retain their positions but that Cook had stated publicly that he intended to replace all of Ligon's employees. The second amended complaint detailed their direct and indirect efforts to reapply for their positions and Cook's response or lack of response to their efforts. Finally, they alleged that some of the plaintiffs were discouraged by Cook's public statements.

Rule 8(a) of the Federal Rules of Civil Procedure requires only that a plaintiff set forth a short, plain statement of the grounds for relief. Bearing in mind the liberal pleading requirements of the Federal Rules, this court finds that the plaintiffs' allegations were sufficient to avoid dismissal. This cause is therefore remanded to permit factual development of the methods used by the remaining plaintiffs to apply for reinstatement and whether their efforts were sufficient under the circumstances. This inquiry should be sensitive to the circumstances of each individual and the propriety of the "application" should be assessed according to all of the facts and circumstances including the conduct of the parties, the sheriff's knowledge of the plaintiffs' desire for reinstatement, the local custom for gaining employment--including word of mouth recruiting--any statements made by the sheriff which tended to encourage or discourage efforts to seek reinstatement, the size of the county, and the number of employees in the office.

E. The Liability of the County Commission and the Chief Deputy

Under Alabama law, the County Commission is authorized to "allow the sheriff to appoint a chief deputy and as many other deputies as are needed in the discretion of the county commission." 1979 Ala.Acts 85. We can find no authority in Alabama law granting the county commission the authority to hire and fire deputy sheriffs, nor have plaintiffs offered any. By its plain language, the statute authorizes the commission to determine only the number of deputies the sheriff may appoint. The authority of the county commission to determine the number of deputies the sheriff may appoint complements the sheriff's appointment power. As such, the Lawrence County Commission's ratification of Cook's proposal to replace all Ligon employees does not render it liable for Cook's refusal to reinstate the Ligon employees. Therefore, we AFFIRM the district court's dismissal of the county commissioners.

Both the sheriff and his chief deputy may be liable for unconstitutional conduct under section 1983 when personal involvement by both officers is alleged. See, e.g., Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979); Carr v. Bell, 492 F. Supp. 832 (N.D. Fla. 1980). The unconstitutional conduct plaintiffs allege is discharge for political reasons but they have not alleged that Chief Deputy Cain was involved personally in this specific conduct. They assert only that Sheriff Cook publicly stated his intent to replace plaintiffs with persons who supported his election, Second Amended complaint at p 7, and to discriminate against plaintiffs because of their political activities, Second Amended Complaint at p 12, but do not allege that Cain made similar statements, or that Cain engaged in any conduct indicating that his actions were politically motivated. They allege only that Cain, along with Cook, directed the notices to plaintiffs relieving them of duty, Second Amended Complaint at p 13, and that either Cook or Cain attended the County Commission meeting in which plaintiffs sought the Commission's assistance in retaining their jobs, Second Amended Complaint at p 11. Plaintiffs' allegations suggest that the chief deputy is liable for the politically motivated discharge by Cook because his name was on the notices relieving plaintiffs of duty. Therefore, we AFFIRM the district court's dismissal of Chief Deputy Cain.

To state a prima facie case of racial discrimination, a plaintiff must show "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected, and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973) (footnote omitted).

The plaintiffs' claim fails on parts (ii), (iii), and (iv) of the McDonnell Douglas test. Plaintiffs Allen, Sheffey, and Stovall have not alleged that they applied but were rejected in spite of their qualifications, nor did they allege that the positions remained open and that Cook solicited applicants with the same qualifications. They allege only that they were interested in retaining their positions but did not apply after Cook stated that he "didn't care whether he hired any niggers on his staff or not." Second Amended Complaint at p 22. The allegations contained in the second amended complaint are insufficient to state a prima facie case of racial discrimination. Therefore the district court's dismissal of the section 1981 claim is affirmed.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with the opinion of this court.

FAY, Circuit Judge, Specially Concurring:

While joining in the result reached in this matter, I write separately to clarify and emphasize certain parts of today's holding. First, I would like to emphasize what the court does not hold. The court has not said that a cause of action lies for Cook's fulfillment of a campaign promise to "clean house." Such a cause of action could not exist. Cook, as a candidate for the sheriff's office, has the right to express his complete displeasure with the administration of the previous sheriff. The voters would also have the right to expect Cook to fulfill his campaign promise to completely revamp the sheriff's office. The affected personnel in such a case would not be penalized as a result of their exercise of any constitutional rights. They would not be rehired simply because they worked for an administration the voters found in need of change. Since the decision to rehire them was not affected by the exercise (or failure to exercise) of any constitutional rights, they could not claim a constitutional violation.

A cause of action may lie in this case, however, because plaintiffs have alleged that they were not rehired because they either supported the previous sheriff or because they did not support Cook in his bid for office. If such allegations are true, then the plaintiffs are being punished for expressing their preferences between political candidates. The court correctly turns to Elrod¹  and Branti to determine whether under those circumstances there is a cause of action.²  Since Elrod and Branti deal with punishment for affiliation with a political party, while this case deals with alleged punishment for support rendered to one political candidate, the court has properly modified the Elrod-Branti test to read: whether loyalty to the individual sheriff is an appropriate requirement for the effective performance of the particular position. At page 377.

I agree that a deputy is so closely associated with the sheriff that loyalty is an essential requirement for the job. Since this case comes before us under Rule 12(b) (6), I also agree that the other positions (the clerks, dispatchers, jailers, and process server) require more factual development before we can conclude as a matter of law that loyalty and trust are appropriate requirements to their effective performance.³  It may prove true that a sheriff's office cannot function properly unless the sheriff can maintain a confidential relationship with, for example, his head jailer. However, on the limited record before us we cannot make such a determination.

Turning finally to the question of application, I would like to stress the court's holding that all the plaintiffs must in some form or other "ask" to be rehired, unless such an action would be futile. The only question for us is whether the plaintiffs have sufficiently pled that they applied for the job or pled that an application would have been futile. In this instance, the pleadings are probably barely legally sufficient because they allege that all those who did not apply directly were deterred by Cook's frequent statements that he would not rehire anyone from Ligon's administration. However, assuming such is established, we are brought back to the key issue which must be resolved factually. Was the failure to hire the result of a legitimate campaign promise or punishment for political loyalty to the loser. Such is simply not the grist for Rule 12(b).

It seems to me that it is important to highlight that the plaintiffs must establish all of the following in order to prevail. The individual applied for employment with Sheriff Cook or proves that such would have been futile. The position sought is not one where loyalty to the incumbent is an appropriate requirement for effective performance. The failure to rehire was because of the plaintiffs' political support of the previous sheriff. Failure to prove any one of these essentials bars recovery.