Opinion for the court filed by Circuit Judge BUCKLEY.
Sydnеy 0. Hall appeals from the district court’s dismissal of his complaint for failure to state a claim. Hall was terminated as the Athletic Director of the University of the District of Columbia. He claims that he was fired, in violation of the First Amendment, because of his criticisms of improprieties within the Athletic Department. He also argues that his termination violated the Due Process; Clause and his rights under District of Columbia law. We affirm the district court’s conclusion that the termination was lawful.
I. Background
Our recitation of the factual background is based on the allegations of the complaint. As the district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, we must assume these allegations to be true.
Plaintiff/appellant Hall is a tenured faculty member of the University of the District of Columbia (“UDC”). In late 1983, then-President Green asked appellant to become the UDC’s Athletic Director and to “bring the UDC Athletic Department into full compliance with [National Collegiate Athletic Association (“NCAA”)] and UDC rules and guidelines.” Complaint at ¶ 10, Appendix (“App.”) at 3-4. Green allegedly promised Hall that Green “would support those steps [appellant] found necessary to bring the Athletic Department into compli-ance_” Complaint at ¶ 11, App. at 4. Appellant accepted the appointment and served as Athletic Director until he was terminated effective December 31, 1985.
Appellant claims that he was terminated because his “public and private” statements, Complaint at ¶ 21, App. at 6, concerning the Athletic Department’s deficiencies made him unpopular with the UDC Board of Trustees. The complaint also alleges:
13. During his employment as UDC Athletic Director, the [appellant] publicly voiced his concerns about, and acted to investigate and, where necessary, to remedy, possible violations of NCAA and UDC rules and guidelines involving, among other things: ineligible athletes playing on UDC athletic teams; the improper authorization of an athletic scholarship to an ineligible athlete; the changing of student grades by University employees for purposes of maintaining athletic eligibility; the use of drugs by student athletes; and the violation of rules prohibiting athletic practices at unauthorized times and places.
14. [Appellant’s] efforts to investigate and to remedy possible NCAA and UDC rule and guideline violations were opposed with increasing frequency by the UDC administration and various members of the Board.
17. On or about December 9, 1985, [appellant] was directed to resign from his position as Athletic Director by Claude A. Ford, UDC President_
18. President Ford admitted that [appellant] was terminated because of pressure from the Board and not because of deficient performance. Indeed, President Ford acknowledged that his decision to .terminate [appellant] “does not reflect unfavorably on yoiir performance as Athletic Director ... [and] the University is most grateful for your work in solidifying the management controls in the Department.”
App. at 4-6 (last ellipsis original). Hall claims that these statements, protected by the First Amendment, were a substantial or motivating factor in his discharge. Complaint at ¶¶ 20-21, App. at 6.
Appellant further alleges that the termination without cause and without a hearing deprived him of his right to due process to protect his property interest in continued employment and his liberty interest in his reputation. He also includes a number of pendent claims. First, and related to the *258 due process claim, he argues that the discharge constituted a breach of contract of employment, under which he would only be terminated for cause. He likewise maintains that this promise of termination only for cause gave him a claim for promissory estoppel.
Hall’s final pendent claims are for defamation and wrongful termination. The defamation claim is based on a memorandum sent by Mary W. Colvin, the UDC Treasurer, to the UDC Controller (“Colvin memorandum”). The memorandum, which concerned the handling of funds from a tennis tournament, contained the following statement:
The Controller was not informed of the event nor the deviation of [sic] the collection procеss. This is not the first time that the office of the Cashier has called malfeasance to the attention of the Athletic Director, e.g.; The Strawberry Festivals and other tournaments, uncontrolled ticket sales, discrepancies over renting the gymnasium facility, pricing and collection authority.
App. at 14 (emphasis added). The record does not indicate whether the prior incidents referred to occurred during Hall’s tenure as Athletic Director.
Appellant’s claim for wrongful termination is based on D.C. public policy protecting the unfettered discussion of public issues by District employees. Even though he admits that as an “excepted service” employee under District of Columbia law he had no statutory right to termination only for cause, appellant contends that he could not be terminated, as he was in this case, for reasons that contravene that policy-
II. Discussion
We review a dismissal for failure to state a claim de novo, for the dismissal reflects the district court’s purely legal conclusion that the facts alleged do not establish a valid cause of action.
A. First Amendment
Appellant’s First Amendment claim is governed by
Pickering v. Board of Educ.,
The first two inquiries are questions of law for the court to resolve.
See, e.g., Connick,
Appellees argued to the district court that appellant had failed to demonstrate causation, the third factor. Appellees maintained that the speech that Hall alleged led to his dismissal occurred before Ford became President, and therefore could not conceivably have led to his termination by Ford. On a motion to dismiss, however, we take as true plaintiff’s factual allegations, to wit, that he "was terminated because of pressure from the Board,” Complaint at ¶[ 18, App. at 6, and that various Board members disliked him because of his *259 criticism of the athletic program. Complaint at ¶ 14, App. at 5.
We also reject appellees’ suggestion that under D.C. law governing employment of “excepted service” executives, UDC could dismiss at will employees, such as appellant, even for protected First Amendment activity:
It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech. Even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression.
Rankin v. McPherson,
— U.S. —,
We turn now to the first two prongs of the Pickering test, upon which the district court primarily relied. We disagree with the district court’s view that Hall’s speech was not of public concern, but affirm its conclusion that the government’s interest in efficient administration outweighed Hall’s interest in speaking.
1. Public Concern
The
Pickering
balance applies only if the employee’s speech relates to a matter of public concern, i.e., “of political, social, or othеr concern to the community.”
Connick,
Speech by public employees may be characterized as not of “public concern” when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public’s evaluation of the performance of governmental agencies. On the other hand, speech that concerns “issues about which information is needed or appropriate to enable members of society” to make informed decisions about the operation of their government merits the highest degree of first amendment protection.
McKinley v. City of Eloy,
As noted above, appellant spoke about various violations of NCAA and UDC rules. Complaint at ¶ 13, App. at 4. Although the complaint does not specify the precise content of the statements, nor indicate the form or context in which they were made, it nevertheless establishes that appellant’s speech addressed a matter of public concern. A substantial segment of the general public would be interested in violations of athletic rules, which would reveal whether the current university administration is mismanaging the athletic program.
The Supreme Court has indicated that a public employee’s comments on the structure of academic and athletic programs are of public concern. In
Pickering,
a teacher wrote a letter to a newspaper concerning the school board’s allocation of funds betweеn athletic and educational programs, and its withholding of information from the public about the uses it planned to make of new tax revenues. The Court found the subject to be “a matter of legitimate public concern.”
Jett v. Dallas Independent School District,
Appellees attempt to characterize this as an “employee grievance” case, relying on
Connick.
In that case, an assistant district attorney who had been transferred against her will circulated within the office a questionnaire concerning the transfer policy, morale, confidence in superiors, and pressure to work in political campaigns. Except for the question concerning campaigning, the questions were not of public concern, but were “mere extensions of [the employee’s] dispute over her transfer.”
Appellees argue that appellant “engaged only in job-related speech.” Brief for Ap-pellees at 38. As there was no dispute between Hall and the Board or the President over the goal of bringing the athletic program into compliance with NCAA and UDC rules, the only dispute “was over how the University’s policy of seeking compliance with athletic guidelines was to be implemented.” Id. at 40 (emphasis original). The dispute over the intermediate steps, say appellees, was an employee grievance, not a matter of public concern.
Even if Hall’s statements reflеcted his job-related disagreements with his superiors, they are still of public concern. True, a matter is not of public concern
merely
because it grows out of a disagreement between government officials.
See Barnes v. Small,
2. Government Interest
The Supreme Court recently summarized the elements of government interest that are to be weighed against the employee’s interest in speech:
We have prеviously recognized as pertinent considerations whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.
These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer’s enterprise.
Rankin,
Appellant argues that the district court prematurely dismissed the complaint under the government interest prong because the government failed to make “an objective shоwing of concrete harm” to the effective functioning of the government enterprise.
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Brief for Appellant at 8. The complaint, to which the district court was limited under Rule 12(b)(6), contained no such evidence. The complaint did not allege, for example, that Hall’s speech disrupted an intimate, day-to-day relationship between Hall and the Board of Trustees or the President.
Cf. Rankin,
Although unadorned speculatiоn as to the impact of speech, whether public or private, on the government’s enterprise will not suffice under
Rankin
and
APWU,
neither case forbids us from drawing reasonable inferences of harm from the employee’s speech, his position, and his working relationship with his superior.
Connick,
for example, recognized that the employer need not “allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”
The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails. Where, as here, an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful function from that employee’s private speech is minimal.
The present case requires us to explore this evolving area of constitutional law: balancing the government’s interest against the First Amendment rights of high-level employees. The Supreme Court has not explicitly addressed the balance in cases involving speech by such employees, but it has applied an analogous balancing test in cases involving political affiliation, prohibiting patronage dismissals except for certain high-level employees (sometimes described as “pоlicymakers”). Although not directly applicable, the patronage cases address similar concerns and recognize a government interest that is apposite here.
a. Principles of Political Affiliation Cases
In
Elrod v. Burns,
In
Branti v. Finkel,
the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular pоsition; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.
[T]he Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.
Id. The Court concluded that although the work of assistant public defenders was confidential and policymaking in one sense, party affiliation was irrelevant to the effеctive performance of their jobs.
The First Circuit, after surveying the lower courts that have interpreted
Elrod
and
Branti,
distilled a two-part test for determining whether an employee may be dismissed because of political affiliation.
Jimenez Fuentes v. Torres Gaztambide,
relates to “partisan political inter-ests_ [or] concerns.” [Branti,]445 U.S. at 519 [100 S.Ct. at 1295 ], That is, does the position involve government de-cisionmaking on issues where there is room for political disagreement on goals or their implementation?
Id. See also Shondel v. McDermott,
Second,
Jimenez Fuentes
directs us to “examine the particular responsibilities of the position to determine whether it resembles a policymaker_”
b. Relevance to Employee Speech Cases
The
Elrod-Branti
line is premised upon concerns similar to those animating the employee speech cases. The
Elrod
plurality,
Both Elrod-Branti and Pickering limit this principle by recognizing that government has a legitimate interest in efficient operations. The exception for patronage dismissals of certain employees reflects the importance of allowing officials at the top of the organizational hierarchy to implement their policies through politically compatible deputies.
In order for the new administration to be given an opportunity to fulfill expectations, it must have available and also appear to have available significant facilitators of policy, people who have the personal and partisan loyalty, initiative, and enthusiasm that can make the difference between the acclaimed success of a government agency or program and its failure or, more typically, its lackluster performance.
Jimenez Fuentes,
The same concern for the success of a government program is reflected in the government interest prong of the
Pickering
test, which “focuses on the effective functioning of the public employer’s enterprise.”
Rankin,
Given the similarity in the bases and countervailing interests recognized in Pickering and Elrod-Branti, the government interest recognized in thé affiliation cases is also relevant in the employee speech cases. As the Fifth Circuit noted,
reasoning that permits the President to terminate a Deputy Secretary of Defense because he is a member of the opposition party but prohibits him from firing the Deputy for a public expression of policy contrary to his own suffers for lack of defining principle.... Government has .an interest in conceding to elected officials the power to implement policy for which they must answer to the voters. In more familiar language, knowing that the buck stops, and where, is a substantial government interest.
Gonzalez v. Benavides,
[tjhere is a governmentаl interest in securing those unique relationships between certain high level executives and the elected officials at whose grace they serve. For this narrow band of relationships, refusing to grant First Amendment found tenure would seem to take away little freedom not already lost in accepting the appointment itself....
Gonzalez I,
The reason is self-evident. High-level officials must be permitted to accomplish their organizational objectives through key deputies who are loyal, cooperative, willing to carry out their superiors’ policies, and perceived by the public as sharing their superiors’ aims; this is true whether or not those officials are elected. In the case of key patronage appointments, this government interest is protected because of the presumption that these individuals аre compatible with the elected officials they serve. As they belong to the same party, they may be presumed to share common interests and goals, which cannot be said of members of an opposition party. But regardless of whether a key policy level deputy is appointed from among the ranks of party members, the need for compatibility remains.
The affiliation cases arise in a discrete context — the unique role of parties in elective politics, the hurlyburly of elections and their aftermath — and the vocabulary of these cases reflects this context. Although the interests recognized in these cases provide a helpful insight into the employee speech cases, the nomenclature is more confusing than illuminating when transferred. Thus, while we adopt the criteria set forth in
Jimenez Fuentes
as a means of
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identifying those high-level employees for whom compatibility with superiors is crucial, we modify its terminology by substituting “policy” for “partisan” and “political.” We will ask first whether the employee’s position relates to an area as to which there is room for principled disagreement on goals or their implementation.
See Nekolny,
c. Application to Present Case
Did Hall and the Board fall “into that narrow band of fragile relationships requiring for job security loyalty at the expense of unfettered speech”?
Gonzalez I,
Hall’s position related to a policy area, and his duties were such as to identify him as a prominent policy level official. The University therefore had a significant interest in ensuring that Hall was, and was perceived to be, compatible with the President and the Board. Hall’s speech directly interfered with this interest, as he engaged in a pattern of opposition to the policies of his superiors.
First, the Athletic Directorship сlearly is a position that relates to policy concerns. There is substantial room for principled disagreement on the formulation and implementation of goals for the Athletic Department. Two directors may disagree about which sports to emphasize, whether to focus on league or intramural activities, or whether to insist on compliance with NCAA and University rules even at the expense of negative publicity and competitive setbacks. . As the Athletic Director’s job performance cannot be measured solely on the basis of neutral, technical criteria of professional competence, his position relates to a policy area.
See Shondel,
Second, Hall’s duties as Athletic Director were sufficiently extensive to qualify him as a policy level employee. The Athletic Director is in the “excepted service,” which is defined by statute as “an individual whose primary duties are of a policy determining, confidential, or policy advocacy character and who reports directly to the head of an agency.” D.C.Code Ann. § 1-610.2 (1981). Although the statute is not conclusive, it is entitled to some deference.
Jimenez Fuentes,
These duties were obviously “not well defined [and] оf broad scope.” Id. Hall was the immediate subordinate of the President and the Board. He reported directly to them, and they were his only superiors. He had the power and primary responsibility to control all employees within his department. At the same time, he was a highly visible spokesman for the University’s athletic program, likely to be thought of by the public as responsible for running the department.
Finally, the government’s interest in having its Athletic Department efficiently operated in accordance with policies established by the President and Board was directly undermined by Hall’s contrary views as to how these policies should have been formulated and implemented. He engaged in a pattern of speech concerning the proper response to rule violations within the department. Complaint at ¶ 13, App. at 4. His statements “were opposed with increasing frequency by the UDC administration and various members of the Board.” Complaint at ¶ 14, App. at 5. Hall’s views as to how the department should have been run were obviously at odds with those of the Board.
We conclude that Hall could be dismissed for expressing views on matters within the core of his responsibilities that reflected a policy disagreement with his superiors such that they could not expect him to carry out their policy choices vigorously.
B. Due Process Clause
1. Property Interest
Appellant claims that his dismissal deprived him of his property interest in continued employment without due process. As property interests are “ ‘created and their dimensions are defined by ... state law,’ ”
Cleveland Bd. of Educ. v. Loudermill,
To determine whether Hall had a property interest in continued employment, we ask if he had a legitimate expectation, based on rules (statutes or regulations) or understandings (contracts, expressed or implied), that he would continue in his job. For example, a teacher had no property interest in employment when his term was to terminate on a certain date and no provision was made for renewal.
Roth,
Most cases involving government employеes fall into one of two categories: terminable at will or terminable only for cause. Those who are terminable at will have no property interest because there is no objective basis for believing that they will continue to be employed indefinitely. Those terminable only for cause, however, can expect to remain employed unless- they do something warranting their termination.
Appellant admits that the Athletic Directorship was an “excepted service” position. Complaint at 1130, App. at 8. Under District law, excepted service employees “do not have any job tenure or protection.” D.C.Code Ann. § 1-610.5 (1981).
See also
30 D.C.R. 1461 (1983) (regulation permits UDC Board to establish excepted service positions; such employees “shall serve at the pleasure of the President and may be terminated at any time”). Appellant admits that he signed an agreement that “he would ‘serve at the pleasure of the President.’ ” Complaint at 1132, App. at 9. This presumptively makes Hall an at-will employee with no legitimate expectation of
*266
continued employment.
See Lyons v. Barrett,
Appellant nevertheless claims he had a property interest in his job, for two reasons. First, he points to D.C. Code Ann. § 1-616.2(1) (1981), which gives D.C. employees the “right to freely express their opinions on all public issues.” Hall does not claim that his termination violated the right codified in this statute. Rather, he asserts that because he could not be fired for speech (nor for the other reasons specified in-D.C. Code Ann. § 1-616.2), he had a legitimate expectation of continued employment. Even if we assume that this statutory right limits terminаtions, Hall’s claim must fail.
The Supreme Court noted in
Roth
that a property interest in employment is created not by the Constitution but “by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of
entitlement
to those benefits.”
Second, appellant claims that he was assured orally by then-President Green that he would not be dismissed except for cause. Complaint at IT 11, App. at 4; Complaint at ¶ 32, App. at 9. After these alleged assurances, however, appellant signed an agreement providing that he would serve at the pleasure of the President. “Where after oral negotiations parties enter into a written contract, their rights must be controlled by their contract. Its terms cannot be varied by parol evidence....”
Tonn v. Philco Corp.,
2. Liberty interest
Appellant argues that he was dismissed shortly after the Colvin memorandum surfaced (see above at 258), implying to the world that he was fired because of malfeasance. He desires a hearing to clear his' name and claims that appellees’ refusal to grant him a hearing deprived him of his liberty interest in his reputation.
The Seventh Circuit recently described the interest protected by the liberty component of the Due Process Clause:
The principle behind the “stigma” cases is not that particularly aggravated forms of defamation violate the due process clause when committed by public officials, but that dismissal to the accompaniment of serious public charges of misconduct may prevent the employee from obtaining other employment of comparable responsibility—may, in a word, operate to blacklist him from such employment, thereby depriving him of his occupational liberty.
Jungels v. Pierce,
Even if we assume that the Colvin memorandum, followed closely by appellant’s dismissal, suggested that he was fired for misconduct, appellant admits that the Pres *267 ident’s termination letter stated that the “decision to terminate [appellant] ‘does not reflect unfavorably on your performance as Athletic Director ... [and] the University is most grateful for your work in solidifying the management controls in the Department.’ ” Complaint at ¶ 18, App. at 6. This statement removes any possibility that Hall was stigmatized by his dismissal. Nоthing further would be gained from a name-clearing hearing.
C. Remaining Pendent Claims
1. Defamation
In pertinent part, the Colvin memorandum stated: “This is not the first time that the office of the Cashier has called malfeasance to the attention of the Athletic Director_” App. at 14; see also above at 258. The complaint alleges that this statement
is defamatory and libelous per se in that it tends or was reasonably calculated to injure [appellant] in his reputation, profession, and community standing by charging that [appellant] was guilty of multiple acts of malfeasance.
Complaint at 1138, App. at 10. This allegation is plainly mistaken. The memo does not accuse Hall of malfeasance; it merely states that acts of malfeasance within the Department have previously been brought to the Director’s attention. Although appellant now attempts to argue that the memorandum is defamatory because it imрlies that Hall was unresponsive to malfeasance within his department, this is not the theory presented in the complaint. We will not permit appellant to amend his complaint at this stage. “It is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984).
2. Wrongful Termination
Appellant’s final claim is that the dismissal was wrongful because it violated public policy. According to appellant, even an at-will employee cannot be terminated for reasons that violate public policy. Appellant alleges that his dismissal violated the public policy protecting free speech by employees, as codified in D.C.Code Ann. §§ 1-616.1 et seq. (1981). Complaint at 111144-48, App. at 11. The district court properly rejected this claim.
In considering this pendent claim, we are of course bound by the law of the District of Columbia, as authoritatively interpreted by the D.C. Court of Appeals. In
Ivy v. Army Times Publishing Co.,
The clear lesson of
Ivy
is that the District of Columbia does not currently recognize a public policy exception to the at-will termination doctrine.
See Downey v. Firestone Tire & Rubber Co.,
*268 III. Conclusion
We affirm the district court’s conclusion that the government's interest in ensuring the effective administration of the University outweighed appellant’s right to speak on matters of public concern within his area of responsibility. We also agree that appellant has failed to state a cause of action for violation of his right to property and liberty without due process, for breach of contract and promissory estoppel, for defamation, and for wrongful termination. The judgment of the district court is therefore
AFFIRMED.