Foote v. Town of Bedford, 642 F.3d 80

Bedford, NH charter vests appointment power to a seven-member Council and to appoint the Bedford Recreation Commission members.
Foote was appointed to the Commission in 2005, reappointed for a three-year term, and had an apparently exemplary service record.
In Jan 2009 Foote learned his term would expire; reappointment was discretionary by the Council.
In March 2009 Foote publicly opposed the BVC project and advocated impact fees, drawing objections from the Council.
Foote then sought reappointment; at a March 16, 2009 meeting the Council denied him by a 4–3 vote in favor of other applicants.
Foote sued in state court, alleging a First Amendment § 1983 claim and other state-law claims; the district court granted summary judgment on the § 1983 claim and remanded the rest.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether policy-related speech by a policymaking volunteer justifies dismissal under Elrod/Branti principles	Foote argues his public remarks on BVC were protected speech influencing policy	Town contends loyalty to policy objectives justifies non-reappointment	Yes; Pickering balance favored government due to policy compatibility requirement
Whether the position of Commission member is policymaking for Elrod/Branti purposes	Foote argues the role is merely advisory and not policymaking	Council can require alignment with policy goals for policymakers	Yes; Commission is policymaking and advisory role can be policymaker
Whether the speech linked to the reappointment decision was policy-related	Foote's speech related to BVC and funding and thus policy	Speech implicated Council's policy choices and funding mechanisms	Yes; speech reasonably linked to Commission work and policy goals
Whether the adverse action was a matter of public concern warranting protection	Foote claims public concern in governance matters	Speech related to park policy and funding is within public concern scope	Yes; but still outweighed by government interests under Elrod/Branti

Elrod v. Burns, 427 U.S. 347 (U.S. 1976) (political affiliation exception in dismissals applies to policymaking employees)
Branti v. Finkel, 445 U.S. 507 (U.S. 1980) (affiliation-based exceptions for policymakers; compatibility with policy objectives)
Rutan v. Repub. Party of Ill., 497 U.S. 62 (U.S. 1990) (compelling government interest in loyalty of policymakers)
Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968) (balancing of speech against government function in public employment)
Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (speech by public employee on matter of public concern; not absolute protection)
Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1998) (policymaker speech permissible grounds for retention decisions)
Rose v. Stephens, 291 F.3d 917 (6th Cir. 2002) (Elrod/Branti principles applied to policymaking speech cases)
Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964 (7th Cir. 2001) (Elrod/Branti-informed balance in policymaker speech cases)
Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993) (government could require loyalty of policymaking subordinates)
Barton v. Clancy, 632 F.3d 9 (1st Cir. 2011) (distinguishes employee dismissal vs. appointment denial for volunteers)
Galloza v. Foy, 389 F.3d 26 (1st Cir. 2004) (policymaker status and speech-based analysis in public appointments)