357 F.3d 305 | 3rd Cir. | 2004
THOM AS MEADE, City Council SCIRICA, Chief Judge . Member, in his individual capacity; DOMENIC VIRGONA,City Council At issue is whether a city council
Member, in his individual capacity lawf ully d ismiss ed it s p r i n ci p al policymaking employee who campaigned against winning councilmanic candidates in a primary election. The City of Clairton fired its municipal manager, Dominic
On Appeal from the Curinga, after he campaigned against an United States District Court for the Western District of Pennsylvania incumbent city council member who won re-election and against another successful D.C. Civil Action No. 00-cv-00907 councilmanic candidate. Curinga asserts (Honorable Robert J. Cindrich) the city council’s decision to terminate him violated his First Amendment right to speak freely on a matter of public concern. Summary judgment was granted for
Argued July 31, 2003 defendants. We will affirm. [1] Before: SCIRICA, Chief Judge , RENDELL and AMBRO, Circuit Judges year. His employment contract allowed at- I. will termination. In August 1997, Dominic Curinga was appointed municipal manager of the In 1999, while employed as City of Clairton, Pennsylvania. Prior to municipal manager, Curinga ran for the this appointment, Curinga had served two position of District Justice as an “Action terms on the Clairton City Council and one Team” Democrat. The “Action Team” term as its mayor. The city council, which ticket ran against the “regular” Democratic included Mayor Dominic Serapiglia and Party’s ticket in the primary election. The four council members, voted 4-1 in favor “regular” party’s endorsed ticket included of Curinga’s appointment as municipal City Councilman incumbent George manager. Curinga and all council Adamson and candidate Dominic Virgona, members were members of the Democratic who was challenging incumbent City Party. Councilwoman and “Action Team”
Democrat Ruth Pastore. Curinga was responsible to the city council “for the administration of all In his deposition, Curinga admitted municipal affairs placed in the Manager’s speaking out during the primary election charge.” Curinga described his position as campaign in favor of Pastore and against “run[ning] the day-to-day business Adamson and Virgona. At one point in the operations of the city.” In this capacity, he primary campaign , all Demo cratic oversaw all city departments and candidates were present at a roundtable supervised and managed all city question and answer session of a “Meet the employees, including the finance director, Candidates” forum sponsored by the First public safety director, public works AME Church of Clairton. During the director, fire chief and police chief. session, a member of the audience Curinga also implemented city council questioned Curinga about alleged racial decisions in various departments within discrimination at the Sons of Columbus, an the municipality. He had the power to Italian ethnic heritage organization to appoint, suspend, or remove all municipal which Curinga and other candidates employees and administrative unit heads belonged. The audience member asked, with the advice and consent of the council. “How could you say you are going to be a Curinga received a salary of $39,000 per fair magistrate when you’re a member of
an organization, a club, that does not allow blacks admittance[?]” Curinga was upset that two other club members present at the
Mfg. Co., 343 F.3d 669, 679 (3d Cir. forum, Virgona and Curinga’s opponent 2003). A motion for summary judgment is for District Justice, Armand Martin, failed properly granted when the record reveals to come to the club’s defense. no genuine issue of material fact, and the movant is entitled to judgment as a matter
The incident prompted Curinga to of law. Id. at 680. write “An Open Letter to the Membership association with our organization. of the Sons of Columbus, Clairton:” E l e c t : D o m e n i c J .
Curinga—District Justice; Ruth This forum was attended by Pastore—Council; . . . . a majority of African-American citizens. During the question (emphasis in original). The letter was period of the forum, the audience signe d by “ The ‘A ction T eam ’ began to question President Democrats.” Curinga admits he wrote the Curinga as to why African- letter. American people are not permitted
Following the letter’s distribution to to join the Sons of Columbus. You, the membership, the Sons of Columbus the members of the Sons of expelled Virgona from the club. Virgona Columbus should know that later stated that this letter and the resulting Domenic Virgona and Armand expulsion damaged his relationship with Martin both stood back and were Curinga: “I was highly upset [about the ashamed to admit that they are letter] . . . [because Curinga] was attacking members of our organization. Why me and I wasn’t running against him. But did they just step back? Why didn’t he had a purpose for attacking me that if they help to explain that our Ruth Pastore won, he was sure that his job organization is an ethnic society, still existed.” Virgona also explained, promoting our Italian heritage? “[t]his letter did it all. And then after that, Instead, these two members were I mean we were having arguments all aligned with the people sponsoring through, at every meeting of the Sons of the forum, in an attempt to present Columbus.” a negative impression on [sic] the A frican-American people in During his campaign for District attendance about our organization Justice, Curinga took off eleven weeks and our heritage. from work with pay, claiming he deserved
“comp time” because of his prior An appeal is made to all attendance at evening and weekend city members of the Sons of Columbus meetings. The city council never approved in Clairton, to NOT remember this use of “comp time.” these two members on Election Day. The same way that they did On May 18, 1999, Curinga lost to not remember they were members Martin in the District Justice primary of our organization at the forum. election. Adamson was re-elected and
Pastore lost her seat on the city council to It is up to you, the Virgona. Thus the “regular” Democratic membership, to vote and support Party candidates prevailed over the people that our [sic] proud of their “Action Team” Democrats and the balance Italian heritage and of their of power in the city council shifted to the “ r e g u l a r ” D e m o c r a t i c P a r t y problems. Taking the facts in the light representatives. most favorable to Curinga, we assume he
was fired because of his political speech, In the summer of 1999, Curinga and including the Sons of Columbus letter. two other defeated candidates filed an election challenge in the Court of Curinga brought suit under U.S. Common Pleas of Allegheny County. The Const. amend. I and 42 U.S.C. § 1983 court dismissed the lawsuit, noting it was against the City of Clairton and the three “grossly insufficient procedurally and council members who voted for his substantively.” Pastore et al. v. Virgona et termination, claiming the Clairton City al., GD 99-8592 (C.P. Allegheny Cty., July Council had retaliated against him for 2 2 , 199 9) . T h e P e n n s yl v a n ia exercising his right to free speech in Commonw ealth Court dismissed a writing the Sons of Columbus letter and subsequent appeal because petitioners for filing the election fraud lawsuit. In a failed to provide notice to defendants. Repo rt and Recommend ation, the Pastore et al. v. Virgona et al., 741 A.2d Magistrate Judge recommended summary 256 (Pa. Commw. Ct., Oct. 21, 1999). judgment for all defendants. The District
C o u r t a d opted the R epor t a n d On January 3, 2000, the new city Recommendation. Curinga timely council met a nd term inated the appealed. employment contracts of the municipal manager and municipal solicitor. Council II. members Adamson, Thomas Meade, and
A.
Virgona voted in favor of Curinga’s This matter falls at the intersection termination, while Mayor Serapiglia and Councilman Terry Lee Julian voted of two separate First Amendment against. doctrines: freedom of speech and freedom
of association. Both are implicated when According to council minutes, the a high-level government employee speaks newly appointed municipal solicitor stated out against his public employer during an that the city council fired Curinga because election campaign. Wilbur v. Mahan , 3 he violated the Home Rule Charter by F.3d 214, 215 (7th Cir. 1993). The First campaigning on city time and using Amendment protects an employee who taxpayer money to fund his campaign. speaks out on a matter of public concern, Reasons for Curinga’s termination cited in so long as the employee’s interests the council members’ depositions included outweigh the government’s interest in campaigning on city time; excessive efficient operations. At the same time, absences during the campaign; the lawsuit public officials may be able to terminate a alleging election fraud; a conviction for policymaking employee on the basis of driving under the influence of alcohol; the political affiliation and conduct, regardless Sons of Columbus letter; and interpersonal of freedom of association rights. While this case implicates both doctrines, the At the same time, the government result here is the same, because the public has an interest in regulating the speech of employer’s interest is especially strong. its employees to promote “efficiency and
integrity in the discharge of official duties, Although there has been little and [in maintaining] proper discipline in disparity in application and outcome, the the public service.” Connick, 461 U.S. at various courts of appeals have divided 150-51. [2] These interests must be balanced over whether to employ an analysis based against the employee’s interest in on freedom of speech or on freedom of addressing matters of public concern and association. In cases such as these, under enabling the electorate to make informed both doctrines, the outcome is likely to be decisions. 391 U.S. at 572. the same. Nevertheless, we believe that in most cases, where a confidential or policy The Pickering balancing test making employee engages in speech or considers “whether the statement impairs conduct against his public employer, the discipline by superiors or harmony among better analytical approach is found under co-workers, has a detrimental impact on the freedom of speech doctrine. close working relationships for which
personal loyalty and confidence are
B.
necessary, or impedes the performance of Public employees have a First the speaker’s duties or interferes with the Amendment right to speak freely on matters of public concern. See, e.g. , Perry [2] Justice Powell elaborated: v. Sindermann , 408 U.S. 593, 597 (1972); To this end, the Government, as an Pickering v. Board of Educ., 391 U.S. 563, employer, mu st hav e w ide 571-72 (1968), (teacher’s speech against discretion and control over the school board is protected as a matter of management of its personnel and public concern); Watters v. City of internal affairs. This includes the Philadelphia, 55 F.3d 886, 891 (3d Cir.
prerogative to remove employees 1995) (“judicial vigilance is required to whose conduct hinders efficient ensure that public employers do not use operation and to do so with their authority to silence discourse on
dispatch. Prolonged retention of a matters of public concern simply because d i s r u p t i v e o r o t h e r w i s e they disagree with the content of the unsatisfactory emp loyee can employee’s speech.”). But there is
adversely affect discipline and protection only for speech in matters of morale in the work place, foster public concern, Connick v. Myers , 461 disharmony, and ultimately impair U.S. 138, 146 (1983), and that which is not the efficiency of an office or likely to disrupt the efficient operation of agency. the workplace. Pickering , 391 U.S. at 568.
Arnett v. Kennedy, 416 U.S. 134, 168 (1974) (Powell, J., concurring in part).
regular operation of the enterprise.” insure the efficiency of the public Rankin v. McPherson , 483 U.S. 378, 388 workplace, stating that “mere political (1987). The test also takes into account association is an inadequate basis for the extent of authority entailed in the imputing disposition to ill-willed conduct.” employee’s position. Id. at 390. Id. at 364-65.
In a public employee’s retaliation At the same time, the Court in claim for engaging in protected activity, Elrod allowed dismissals based on there are three factors to consider. First, political affiliation for “policymaking” the employee must demonstrate that the positions. Policymaking employees with speech involves a matter of public concern dif fe rent politic al affiliations or and the employee’s interest in the speech orientations could thwart the will of the outweighs the government employer’s electorate and block the implementation of countervailing interest in providing new policies. Id. at 367. Those who were efficient and effective services to the not “policymakers” were “not in a position public. Pro v. Donatucci, 81 F.3d 1283, to thwart the goals of the in-party” and 1288 (3d Cir. 1996). Next, the speech were protected. Id . The Court refined the must have been a substantial or motivating policymaker exception four years later in factor in the alleged retaliatory action. Branti v. Finkel , 445 U.S. 507 (1980), Baldassare v. New Jersey , 250 F.3d 188, holding “the ultimate inquiry is not 194-95 (3d Cir. 2001); Green v. Phila. whether the label ‘policymaker’ or Hous. Auth. , 105 F.3d 882, 885 (3d Cir. ‘confidential’ fits a particular position; 1997). Finally, the employer can show rather the question is whether the hiring that it would have taken the adverse action authority can demonstrate that party even if the employee had not engaged in affiliation is an appropriate requirement protected conduct. Pro, 81 F.3d at 1288. for the effective performance of the public The second and third factors are questions office involved.” Id. at 518. of fact, while the first factor is a question
This court has considered factors of law. Id. that might lead to an Elrod exception. The More than twenty five years ago, determining test in Ness v. Marshall was the Supreme Court set forth a separate whether a difference in party affiliation an alys is for p olitically mo tivated was “highly likely to cause an official to discharges of public employees. In Elrod be ineffective in carrying out” his duties. v. Burns, 427 U.S. 347 (1976), the Court 660 F.2d 517, 521 (3d Cir. 1981). In restricted the dismissal of public Brown v. Trench, we held a key factor was employees for partisan reasons to protect whether the employee has “meaningful the employees’ freedom of political belief input into decisionmaking concerning the and association. 427 U.S. at 357-58 nature and scope of a major township (Brennan, J., plurality opinion). The Court program.” 787 F.2d 167, 168 (3d Cir. also restricted the use of patronage to 1986). [3] See also Zold v. Township of 1995); Williams v. City of River Rouge, Mantua, 935 F.2d 633 (3d Cir. 1991) 909 F.2d 151, 153 n.4 (6th Cir. 1990). (applying the Branti test to determine These courts have upheld terminations whether party affiliation is an appropriate under Elrod-Branti of policymaking requirement for the effective performance employees who open ly suppo rted of the duties of the public office). campaigns against their current or
subsequently elected employer. Kaluczky, Elrod has been traditionally applied 57 F.3d at 204-05; Williams, 909 F.2d at to terminations based on an employee’s 153-54. different political affiliation. Members of the same party are presumed to share So the Supreme Court has common interests and goals, and patronage apparently crafted two methods of appointments usually come from the same analyzing First Amendment claims party as the elected official. Hall v. Ford, depending on the constitutional rights 856 F.2d 255, 263 (D.C. Cir. 1988). But implicated – the right of free speech identical party affiliation does not (addressed by the Pickering balancing test) necessarily ensure the subordinate’s loyal and the right of political affiliation adherence to the superior’s policies. (addressed by Elrod/Branti ). But, as Primary election fights can be famously noted, Pickering and Elrod may easily brutal, sometimes more so than contests in overlap in situations involving campaign the general election, and animosity speech against one’s public employer. between candidates is likely to result. See
C.
Robertson v. Fiore, 62 F.3d 596, 600 (3d Cir. 1995); Wilbur , 3 F.3d at 219. The Supreme Court has not yet Recognizing this, other courts of appeals directly confronted a situation where a policymaker is terminated both for have broadened the definition of “political affiliation” to include commonality of political affiliation and speech. The political purpose, partisan activity, and District Court here applied the Pickering political support. See Kaluczky v. City of balancing test to the Sons of Columbus White Plains, 57 F.3d 202, 208 (2d Cir. letter and the election fraud lawsuit, citing
O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 718-20 (1996). [4] [3] Brown listed specific factors in this determination, including “whether the
But the plaintiff in O’Hare was not a policymaking or confidential employee. See Rose v. Stephens, 291 F.3d 917, 921
apply the balancing test from (6th Cir. 2002). Nonetheless, O’Hare Pickering . . . Elrod and Branti implied that Pickering balancing should be involved instances where the raw used when termination is motivated by test of political affiliation sufficed both a public employee’s speech and to show a constitutional violation, political affiliation: without the necessity of an inquiry more detailed than asking whether
A reasonableness analysis will also the requirement was appropriate for accommodate those many cases, the employment in question. There
perhaps including the one before is an advantage in so confining the us, where specific instances of the inquiry where political affiliation employee’s speech or expression, alone is concerned, for one’s
which require balancing in the beliefs and allegiances ought not to Pickering context, are intermixed be subject to probing or testing by w ith a p olitic al af f iliation the government. It is true, on the
requirement. In those cases, the other hand, as we stated at the balancing Pickering mandates will outset of our opinion, supra, at 714,
be inevitable. that the inquiry is whether the 518 U.S. 712, 719-20 (1996). Not only the affiliation requirement is a balancing, but the outcome as well, may be reasonable one, so it is inevitable inevitable because the public employer’s that some case-by-case adjudication interest may weigh so heavily that no other will be required even where outcome is possible. [5] The speech may political affiliation is the test the government has imposed. A reasonableness analysis will also
requires in the administration and accommodate those many cases, awarding of contracts over the perhaps including the one before whole range of public works and us, where specific instances of the the delivery of governmental employee’s speech or expression, services. which require balancing in the Id. at 719-20 (citation omitted). Pickering context, are intermixed [5] For this reason, the Court of Appeals with a politica l affiliation requirement. In those cases, the for the Sixth Circuit recently held that balancing Pickering mandates will “where a confidential or policymaking be inevitable. This case-by-case public employee is discharged on the basis process will allow the courts to of speech related to his political or policy consider the necessity of according views, the Pickering balance favors the to the government the discretion it government as a matter of law.” Rose, 291
adversely affect the public employer’s p o l i ti c a l l y l o y a l e m p l o y e e s t o ability to effectively run its operations and policymaking positions converges with its accomplish its objectives. At the same interest in running an efficient workplace. time, the speech may impair the public
D.
employer’s ability to implement policies through loyal subordinates. Hall , 856 F.2d To establish a First Amendment violation under Pickering , Curinga must at 263.
demonstrate that his speech involved a In these situations, it may be matter of public concern, and that his difficult to distinguish where the efficient interest in the speech outweighs any functioning of the government workplace poten tial disruption of the work ends and the employee’s loyalty and ability environment and decreased efficiency of to implement the public employer’s the office. Curinga openly campaigned policies begins. See McEvoy v. Spencer , against the “Regular Team” Democrats by 124 F.3d 92, 99 (2d Cir. 1997). In this writing the Sons of Columbus letter and sense, Elrod considerations of fidelity may urging members of the organization to easily converge with the government’s vote for his ticket and against his interest in managing an efficient opponents. His speech and conduct workplace under the Pickering spectrum. involved a matter of public concern. [6] See See, e.g., Kinsey v. Salado Indep. Sch. Green, 105 F.3d at 885-86 (“A public Dist., 950 F.2d 988, 994 (5th Cir. 1992) employee’s speech involves a matter of (en banc) (“[C]ases involving public public concern if it can be ‘fairly employees who occupy policymaker or considered as relating to any matter of confidential positions fall much closer to political, social or other concern to the the employer’s end of the spectrum, where community’”) (citations omitted). See also the government’s interests more easily Bass v. Richards, 308 F.3d 1081, 1088-89 outweigh the employee’s (as a private (10th Cir. 2002) (holding that speech citizen).”); Hall, 856 F.2d at 263 (“Given regarding political elections involves a the similarity in the bases and matter of public concern); Brady v. Fort countervailing interests recognized in Bend County, 145 F.3d 691, 706-07 (5th Pickering and Elrod -B ranti, the Cir. 1998) (stating that campaigning for a government interest recognized in the affiliation cases is also relevant in the employee speech cases.”). The [6] The District Court found that government’s interest in appointing Curinga’s letter addressed only a matter of personal concern. We disagree. The letter F.3d at 921. Whether or not this can be contained a mixture of personal and public decided as a matter of law, the matters. For our purposes, however, there government’s interest in these kinds of was sufficient content of public concern to cases is likely dispositive. warrant consideration under Pickering. political candidate relates to a matter of Nor can Curinga prevail under public concern); Gardetto v. Mason, 100 Elrod-Branti. The District Court held that F.3d 803, 812 (10th Cir. 1996) (“In the political “affiliation” was a reasonable spectrum of expression protected by the requirement for Curinga’s position. We First Amendment, we place great value agree. The duties of the city manager upon political speech in the electoral required the management of all city process.”). departments, hiring and firing city
employees, representing the city at But Curinga cannot establish that meetings, and implementing policies his interest in speech outweighed the promulgated by the city council. No non- government’s interest in efficiency. See elective position in the City of Clairton Baldassare, 250 F.3d at 195; Swineford v. c a r r i e d g r e a te r p o li c y m a k i n g Snyder County, 15 F.3d 1258, 1280 (3d responsibility. Because of Curinga’s Cir. 1994). Curinga’s campaign against conduct, the “regular” Democratic council the candidates who won the election members had good reason to doubt impaired the reconstituted city council’s whether they could rely on him to follow interest in efficient operations. The record and implement their policies, or whether strongly supports this conclusion. As he would instead “obs truct[] th e noted, Curinga occupied the most implementation of policies of the new sensitive, high-level policy m aking administration, policies presumably appointive position in the City of Clairton, sanctioned by the electorate.” Elrod, 427 one that required confidentiality and a U.S. at 367. For these reasons, Curinga’s close working relationship with city policy making responsibilities exempt him council members to effectively implement from Elrod/Branti protections generally their policies. Under this set of facts, the afforded to patronage dismissals. strong government interest outweighs the employee’s speech. Pickering, 391 U.S. at Curinga, therefore, cannot prevail 581. [7] under either constitutional doctrine.
Although in this case the outcome will be the same, we believe the dispositive [7] As noted, defendants provided several analysis should fall under the Pickering reasons for terminating Curinga, including balancing standard. [8] Curinga’s prior DUI conviction; his job performance and track record as City Manager; his excessive absences during
of Clairton.” The District Court believed the campaign; the Sons of Columbus the Sons of Columbus letter provided the letter; his suit alleging election fraud; and p r i n c ip a l mo tiv ation b ehin d th e the desire of the city council to retain a termination. City Manager “more acceptable and [8] As noted, the other courts of appeals compatible with their policies, beliefs, desires, and aims for the future of the City have taken somewhat different approaches
III.
To summarize, the Clairton City to similar fact situations. The Fifth, Tenth Council did not unlawfully terminate and Eleventh Circuits have applied the Curinga for stumping for the “Action Pickering test when a policymaker speaks Team” Democrats and against the against his employer during an election
“regular” Democratic candidates. campaign. See Kinsey , 950 F.2d at 994-96 Although the result is likely to be the (5th Cir. 1992) (upholding the termination under Pickering of a school district superintendent for vocally opposing school opposed her employer’s party and board members); Kent v. Martin , 252 F.3d endorsed candidates from an opposing 1141, 1142-43 (10th Cir. 2001) (applying party); Kaluczky , 57 F.3d at 204-05 (2d Pickering to analyze the termination of a Cir. 1995) (upholding demotion of deputy clerk who unsuccessfully ran personnel officer under Elrod for actively against the county clerk); Stough v. endorsing mayor who was not re-elected); Gallagher , 967 F.2d 1523, 1528-29 (11th Williams, 909 F.2d at 153-54 (6th Cir. Cir. 1992) (finding deputy sheriff’s 1990) (upholding termination of city demotion for supporting political opponent attorney under Elrod for distributing of sheriff violated deputy sheriff’s First campaign literature that criticized a Amendment rights under Pickering ). subsequently elected member of city
The First, Second, Sixth, and council); Heideman v. Wirsing , 7 F.3d Seventh Circuits have upheld terminations 659, 662 (7th Cir. 1993) (upholding or other disciplinary measures taken by the suspension and termination under Elrod of government under the Elrod/Branti a deputy sheriff who actively campaigned exception when an employee speaks out against the subsequently elected sheriff); against his employer during an election Wilbur, 3 F.3d 214, 217-18 (7th Cir. 1993) campaign. See Rosenberg v. City of (upholding under Elrod unpaid leave for Everett, 328 F.3d 12, 17-18 (1st Cir. 2003) deputy sheriff who announced his (upholding termination of television candidacy for office against the current station director by current mayor under sheriff). The Ninth Circuit allows for Elrod because the director allowed the disciplinary action against policymakers former mayor to submit his candidacy for any type of speech under Elrod , videotape after the station’s established including speech not related to policy deadline, creating a perceived lack of views or a political agenda. Fazio v. City political support for the current mayor); & County of San Francisco, 125 F.3d Regan v. Boogertman, 984 F.2d 577, 581- 1328, 1332 (9th Cir. 1997) (upholding 82 (2d Cir. 1993) (holding that the termination under Elrod of assistant dismissal of a public employee for district attorney who filed papers to run “partisan political reasons” was allowable against district attorney in upcoming under Elrod when the employee actively election). same under Elrod and Pickering , when an employee’s speech is intermixed with political affiliation, the Pickering balancing standard is the better analysis to apply. Because the City of Clairton’s interest in efficient management strongly outweighs Curinga’s interests, his political speech in this case is not protected under Pickering.
IV.
For the reasons stated, we will affirm the grant of summary judgment for defendants.
NOTES
[1] We exercise appellate review over the (Filed February 4, 2004) entry of summary judgment under 28 U.S.C. § 1291. Our standard of review is plenary. Morton Int’l, Inc. v. A.E. Staley
[4] The Court in O’Hare stated: employee participates in . . . discussions or other meetings, whether the employee Our cases call for a prepares budgets or has authority to hire or different, though related, inquiry fire employees, the salary of the employee, where a government employer and the employee’s power to control others takes adverse action on account of and to speak in the name of policymakers.” an employee or service provider’s 787 F.2d at 169. right of free speech. There, we
