57 F.3d 202

KAUFMAN, Senior District Judge,
concurring:
In Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980), Justice Stevens, writing for the majority, and after noting that “[b]oth opinions in Elrod [v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)], recognize that party affiliation may be an acceptable requirement for some types of government employment,” wrote that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the higher authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti at 518, 100 S.Ct. at 1294. In the light of that standard and in view of the tenure requirements of the White Plains City Charter, I agree that the individual defendants were faced with interpreting alleged first amendment and/or due process rights of Ka-luczky which were not subject to sufficiently definitive reasonable understanding by them as government officials. Accordingly, I concur in the within reversal and remand. In so doing, however, I have reservations concerning the majority’s reliance upon the “policymaker” standard, in view of Branti. I also have reservations, in the light of Branti, concerning the majority’s analysis of the “tenure” issue, and, in terms of the federal constitutional rights of a person such as Ka-luczky, would leave that issue for another day, particularly in view of the fact that it may be independently of importance, upon remand in this case, in connection with the state law claims of plaintiff.

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