Kenneth Eggleston v. Ed Bieluch , 203 F. App'x 257 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16256 OCTOBER 3, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-80555-CV-JAL
KENNETH EGGLESTON,
Plaintiff-Appellant,
versus
ED BIELUCH, Former Sheriff,
individually,
RIC BRADSHAW, in his
official capacity as Sheriff
of Palm Beach County,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 3, 2006)
Before TJOFLAT, CARNES and HILL, Circuit Judges.
CARNES, Circuit Judge:
Kenneth Eggleston appeals the summary judgment entered against him in
the lawsuit he brought against Ed Bieluch, the former sheriff of Palm Beach
County, Florida.1 The court found that by terminating Eggleston’s employment
with the Sheriff’s Office, Bieluch had violated neither Eggleston’s equal protection
rights nor his First Amendment rights.
I.
On September 1, 1989, Eggleston was hired by the Sheriff’s Office as a
deputy in the road patrol division. In that position, Eggleston was at the bottom of
the command structure. From highest to lowest rank, the structure is: sheriff,
undersheriff, colonel, major, captain, lieutenant, sergeant, corporal, deputy sheriff.
Off and on over the next decade, Eggleston worked under the supervision of
Bieluch while Bieluch was a sergeant and then lieutenant. The two men had a
close working relationship and held each other in high regard. Bieluch personally
signed off on Eggleston’s yearly evaluations from 1993 to 1995. In each of those
1
In February 2005, Ric Bradshaw was substituted as a party pursuant to Federal Rule of
Civil Procedure 26(d)(1), which provides for automatic substitution when a public officer who is
a party to an action in an official capacity is succeeded in office during the pendency of the
action. Although there are both individual and official capacity claims raised in this appeal, for
ease of reference we will refer to the defendant as Bieluch throughout this opinion.
2
evaluations, Bieluch agreed with the reviewer’s finding that Eggleston either met
or exceeded expectations or was outstanding in all categories. Eggleston was
promoted to sergeant in 1995.
In 1996, Bieluch asked Eggleston to help an associate of theirs in his
campaign for sheriff of Palm Beach County, and Eggleston agreed. During the
course of that campaign, Eggleston and Bieluch “were together all the time,”
raising money and organizing campaign functions. Eggleston, who had never
before participated in a political campaign, considered Bieluch a “mentor” and a
friend.
The two remained close after Eggleston resigned, for reasons not related to
this lawsuit, from the Sheriff’s Office in September 1999 at the rank of sergeant.
Bieluch, then a captain, asked for Eggleston’s assistance in his own campaign for
sheriff during the November 2000 election. Eggleston managed Bieluch’s
campaign, handling his meetings, television appearances and mailings. Eggleston
claims that the two had an understanding that if the campaign was successful,
Bieluch would appoint him undersheriff and groom him to be the next sheriff of
Palm Beach County. He claims that Bieluch told him that he planned to retire after
only one term.
3
Things initially went as planned. After winning the election, Bieluch asked
the incumbent sheriff to hire Eggleston during the transition of administrations.
Eggleston returned to the sheriff’s office as a captain in December 2000. After
taking office in January 2001, Bieluch promoted Eggleston to the rank of
undersheriff. As undersheriff, Eggleston was second-in-command, responsible for
the day-to-day administration of the department and running it when Bieluch was
absent. Because undersheriff is a political position which carries no protection
under the Career Services Act, Eggleston could be removed from office at any time
in Bieluch’s sole discretion.
In July or August of 2001, at a meeting of the Command Staff, Bieluch
announced that he planned to seek a second term as sheriff. Eggleston conceded
that he was “shocked” by Bieluch’s change of plans and by his failure to speak
with Eggleston privately about the decision before formally announcing it.
Eggleston nonetheless insisted in his deposition that he “accepted it and moved
on.” He said that “[a]t worst” Bieluch’s decision “would have delayed [his] ability
to run for sheriff,” but it “didn’t change [his] day-to-day working relationship with
[Bieluch].”
It was around this time that Eggleston and Bieluch’s relationship began to
sour. In the fall of 2001 Eggleston began to voice his disagreement with Bieluch’s
4
administration of the department, expressing his feelings both in private meetings
with Bieluch and during Command Staff meetings.2
Eggleston criticized four aspects of Bieluch’s administration. First, he
questioned Bieluch’s personnel decisions, telling Bieluch that promotions should
not be awarded in the absence of exams or other uniform guidelines; pay grade
changes should be reviewed because they were affecting morale; and unqualified
individuals should not have been hired or appointed to certain positions. Second,
Eggleston criticized Bieluch’s decision to make officers serving at the Eagle Youth
Academy eligible for the state’s high-risk pension plan. Third, Eggleston
challenged Bieluch’s handling of the department’s budget. He objected to the
purchase of certain expensive items, including a helicopter and mobile command
vehicle. He also questioned both Bieluch’s use of sole sourcing and his alleged
failure to fulfill his campaign promise to provide quarterly budget deficit updates.
Fourth, Eggleston opposed Bieluch’s expansion of take-home car privileges to
include more civilians and corrections personnel.
Eggleston testified in his deposition that after he made his feelings known,
Bieluch “beg[a]n to cut [him] out of the loop.” In the fall of 2001, Bieluch started
2
There is some evidence in the record that Eggleston had expressed concerns with
Bieluch’s hiring decisions and failure to keep his campaign promises as early as December 2000,
even before he was actually promoted to undersheriff.
5
to exclude Eggleston from meetings regarding department spending and the
classification of the employees at the Eagle Youth Academy.
In December of 2001, Eggleston was recruited by the Democratic
Congressional Campaign Committee in Washington, D.C. to run for Congress
against Representative Mark Foley, a Republican. In December and January, local
newspapers ran articles about Eggleston’s potential congressional bid and the
possibility that he might run for sheriff against Bieluch if his congressional
campaign proved unsuccessful. Eggleston and Bieluch dispute whether they ever
actually discussed the articles. Eggleston claims that a “tension” and “coldness”
developed in his relationship with Bieluch, and although it was “very bothersome,”
it did not dissuade him from running. Bieluch does not recall discussing the
articles with Eggleston. In any event, Eggleston formally launched his
congressional campaign in late January.
On February 1, 2002, Bieluch asked for Eggleston’s resignation as
undersheriff, explaining that he had lost confidence in him. Eggleston argued
against Bieluch’s decision and asked Bieluch to reassign him to be a captain
serving as District Commander over the congressional district in which he was
seeking election. Bieluch eventually agreed to do that. Eggleston concedes that
Bieluch warned him that he could not use his office phone or pager for campaign
6
purposes. Additionally, Eggleston concedes that Bieluch informed him that he
would have to either take a leave of absence or resign from the sheriff’s office if he
qualified to run for Congress. Bieluch claims that he also told Eggleston that he
could not campaign on duty or while in uniform and could not use his official
vehicle to travel to political events, but Eggleston denies that there were any such
orders.
Bieluch and Eggleston also discussed the issue of “flex-time,” a practice
where all members of the executive staff, including captains, track the overtime
hours worked and use those hours for personal business during a workday, while
still being considered “on duty” for pay purposes. None of the written policies or
procedures of the department addressed the issue of flex-time. Bieluch explicitly
told Eggleston that flex-time did not exist, but Eggleston asserted that “it’s always
existed” and that he had accumulated 400 hours of flex-time as undersheriff.
Bieluch says that he “specifically told [Eggleston] he could not use flex-time” for
campaigning. Eggleston says that no direct order was given. Eggleston did
concede in his deposition that Bieluch informed him that his previously
accumulated flex-time hours no longer existed, and that, even if the use of flex-
time had been permitted in the past, Bieluch, as sheriff, had the right to change the
practice at will.
7
The issue of flex-time again came up in March 2002, at a Command Staff
meeting. Undersheriff William Tremer informed Eggleston and other executive
staff members that “[t]he sheriff has stated that flex-time does not exist.” The
minutes of the meeting specifically recite that employees are no longer allowed to
accrue and bank flex-time. Additionally, Tremer announced that flex-time could
only be used at the discretion of a supervising officer. Eggleston, however,
insisted in his deposition that following the meeting, the issue “wasn’t resolved”
and that “[t]here wasn’t an absolute order given.”
Regardless of Bieluch’s position on the subject, Eggleston continued to use
flex-time to campaign for Congress. On March 26, 2002, he attended a political
lunch meeting with a representative of the Sugar Cane Growers Cooperative of
Florida in West Palm Beach. He wore his official uniform to the meeting, but the
record is unclear as to whether he drove his patrol car. Eggleston insisted that he
was using flex-time, but he admitted that he did not receive authorization from a
major as required by Tremer’s March 5, 2002 order. The meeting lasted from
12:30 p.m. until 2:00 p.m.
On April 10, 2002, Eggleston traveled about fifty miles to St. Lucie County
to meet with the local sheriff for a campaign event. Eggleston again wore his
uniform, and he drove his patrol car to the meeting. He claimed that he used flex-
8
time for the trip and that he had notified his executive officer, Lieutenant Hart, that
he was taking a flex-day. Bieluch asserts that Eggleston was on duty and took the
trip in direct violation of both department policies and Bieluch’s orders. Within a
few days of the event, articles appeared in a local newspaper questioning whether it
was appropriate for Eggleston to campaign during working hours.
On April 16, 2002, Bieluch placed Eggleston on administrative leave with
pay and ordered a formal internal investigation into Eggleston’s campaign
activities. He instructed Eggleston not to leave his house between 8 a.m. and 4
p.m., not to represent himself as an officer, and not to wear his uniform.
Eggleston was stripped of his official identification and patrol car and no longer
allowed to act in any official capacity. That same day, Eggleston gave a televised
speech, telling reporters that he had been suspended from the department, when, in
fact, he had been placed on paid administrative leave. In his televised remarks,
Eggleston also openly criticized the department and Bieluch’s decisions as sheriff.
Upon conclusion of the investigation on May 7, 2002, Eggleston was
charged with violating departmental regulations and policies through his (1)
insubordination in failing to comply with a direct order of a superior; (2) improper
political activity; and (3) insubordination in criticizing Bieluch’s orders and
policies. The first and second violations were based on Eggleston’s daytime
9
meetings with the Sugar Cane Growers representative and the St. Lucie County
sheriff. The third violation was based on the televised speech Eggleston gave after
being placed on administrative leave. Bieluch terminated Eggleston on May 8,
2002.
After his termination from the department, Eggleston was quoted in a June
14, 2002 newspaper article as saying: “I was vocal and consistent in my
opposition with the sheriff. . . . Because of this, our relationship soured, and I
knew that our ability to work together was irrevocably breached.” The article also
reported Eggleston’s June 13th announcement that he was withdrawing from the
congressional race and suing Bieluch “for unlawful firing and destroying his
political campaign.”
II.
Eggleston filed this lawsuit on June 13, 2002 as a 42 U.S.C. § 1983 action
against Bieluch in his individual and official capacities, asserting violations of his
Fourteenth Amendment right to equal protection, Fourteenth Amendment right to
procedural due process, and First Amendment rights to free speech and to run for
political office.
10
A.
On July 10, 2002, Bieluch moved to dismiss all three claims under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can
be granted. He also moved to dismiss the claims against him in his individual
capacity on qualified immunity grounds. Bieluch responded to the equal
protection claim by characterizing it as a restatement of the First Amendment claim
and by arguing that Eggleston had not identified a similarly situated individual
who was treated differently than himself. He responded to the procedural due
process claim by denying that Eggleston possessed a property right in his
employment. With regard to the First Amendment claim, Bieluch argued that: (1)
Eggleston’s speech claim was not based on a matter of public concern and for that
reason was not entitled to protection under the First Amendment; (2) any
restrictions placed upon Eggleston’s speech or activities were proper in light of the
operational needs of a law enforcement agency and the importance of avoiding
disruption in the department; and (3) any restrictions placed upon Eggleston’s
campaign activities were reasonable and lawful.
In an order entered on March 5, 2003, the district court denied Bieluch’s
motion to dismiss, concluding that Eggleston’s complaint stated causes of action
and that Bieluch’s motion, “for the most part, assert[ed] defenses which [could not]
11
be considered on a motion to dismiss.” Bieluch brought an interlocutory appeal to
this Court.
In an unpublished opinion we affirmed in part and reversed in part. First, we
concluded that the complaint’s allegations, taken as a whole, could be read to
sufficiently state an equal protection violation, and that Bieluch was not entitled to
qualified immunity on the equal protection claim.
Second, we concluded that Eggleston had failed to state a claim under the
due process clause because he possessed adequate remedies at state law. Because
Eggleston’s allegations failed to state a violation of due process, we did not need to
consider whether that right was clearly established. We held that Bieluch was
eligible for qualified immunity on the due process claim and we reversed the
district court’s denial of Bieluch’s motion to dismiss to that extent.
Third, we considered Eggleston’s allegation that Bieluch, in his individual
capacity, violated Eggleston’s First Amendment right to participate in a political
campaign.3 We held that because “there [was] no clearly established law that the
restrictions Bieluch placed on Eggleston’s candidacy violated his constitutional
3
We declined to consider Eggleston’s claim that “Bieluch’s filing of an Internal Affairs
complaint against Eggleston . . . violated his rights to free speech and to run for political office
guaranteed by the First Amendment . . . .” We noted that in his brief to this Court, Eggleston
had conceded that his right was not clearly established and had withdrawn this claim against
Bieluch in his individual capacity.
12
rights,” Bieluch was entitled to qualified immunity on that claim. Based on that
determination, we reversed the district court’s denial of Bieluch’s motion to
dismiss Eggleston’s First Amendment claims against Bieluch in his individual
capacity. The net effect of the first appeal was that Eggleston’s lawsuit was
allowed to proceed as to the equal protection claim against Bieluch and as to the
First Amendment claims against Bieluch in his official capacity only.
B.
On May 26, 2005, Bieluch, in his individual capacity, and Ric Bradshaw, in
his official capacity as the new sheriff of Palm Beach County, filed a joint motion
for summary judgment as to both claims. On June 21, 2005, Eggleston filed a
motion for partial summary judgment as to the equal protection claim. The district
court entered an order on October 7, 2005, granting the defendants’ motion for
summary judgment and denying Eggleston’s motion. Eggleston filed a timely
notice of appeal.
III.
We review de novo the district court’s grant of summary judgment,
“appraising all facts and reasonable inferences in the light most favorable to the
nonmoving party.” Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274,
1283 (11th Cir. 2003). Summary judgment is appropriate “if the pleadings,
13
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c).
A. Equal Protection Claim
Eggleston contends that Bieluch violated his right to equal protection by
disciplining him more severely than other employees. Specifically, he contends
that Bieluch punished him for: (1) campaigning in uniform, (2) campaigning on
duty while claiming to be using flex-time, (3) using his take-home car for
campaigning, and (4) publicly criticizing the department and Bieluch’s decisions as
sheriff. Eggleston claims that Bieluch unfairly demoted him to captain, placed him
on administrative leave, and ultimately terminated him. In support of his claim,
Eggleston offers examples of other officers who engaged in similar or what he
views as more egregious conduct and yet were not disciplined at all or were
disciplined less severely than he was.
The district court stated that pursuant to the prior decision of this Court,
Eggleston could “prove his equal protection claim either (1) by establishing that
similarly-situated individuals were treated differently without a rational basis for
14
the difference in treatment, or (2) by demonstrating that he violated no policy but
was nonetheless subjected to harsher discipline than other employees.” 4
Assuming without deciding that the “class of one” theory articulated in
Village of Willowbrook v. Olech, 528 U.S. 562, 120 S. Ct. 1073 (2000) (per
curiam), applies in the public employment context, Eggleston must show that he
has been “intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.”5 Id. at 564, 120 S. Ct. at
1074. He must show a satisfactory comparator who was in fact similarly situated
and yet treated differently. Comparators must be “similarly situated in all relevant
respects,” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.
4
We recognize that our prior opinion stated: “arbitrarily and vindictively firing
Eggleston for campaign activities while imposing no discipline on others who engaged in similar
political events, and imposing less severe discipline on thieves and drunk drivers and those who
engaged in sexual misconduct—was in violation of this clear constitutional right.”
This language could be construed to accept the theory that an equal protection violation occurs if
a plaintiff does not violate a policy and is disciplined while others who engaged in misconduct
are treated more leniently. We question the legal correctness of such a theory, but we will accept
it for our present purposes as part of the law of the case. We note that because our prior opinion
is unpublished, neither that nor any other part of it establishes law of the circuit.
5
We do recognize that there was some confusion in the law of this circuit about the
degree of similarity necessary for a valid comparator, but that confusion was cleared up in
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 n.2 (11th Cir. 2006), where we
explained that an earlier panel decision prevails over a conflicting later panel decision.
Therefore, the “nearly identical” standard set out in Maniccia v. Brown, 171 F.3d 1364, 1368–69
(11th Cir. 1999), is the law of the circuit.
15
2003) (internal citations omitted), and the “quantity and quality of the
comparator’s misconduct [must] be nearly identical to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368–69 (11th Cir. 1999).
Although determining whether individuals are similarly situated is generally a
factual issue for the jury, where there is no genuine issue of material fact that such
a comparator does not exists, summary judgment is appropriate. Harlen Assocs. v.
Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (“[A] court can
properly grant summary judgment where it is clear that no reasonable jury could
find the similarly situated prong met.”).
We recognize that our prior opinion in this case gave Eggleston some reason
to believe that he can make out a viable equal protection claim merely by showing
that another officer engaged in “similar political events” and was treated more
favorably. That is simply not the law. As the district court determined, Eggleston
must show a comparator who both engaged in similar political events and publicly
criticized Bieluch and his policies. To the extent our prior decision suggested
otherwise, it is clearly erroneous and for that reason not binding under the “law of
the case” doctrine. United States v. Escobar-Urrego, 110 F.3d 1556, 1561 (11th
Cir. 1997). Under circuit law a valid comparator must be “nearly identical.”
16
For Eggleston to prevail on his claim here, he must point to a similarly
ranked Palm Beach County officer who both campaigned during the work day
while in uniform and publicly criticized Bieluch and the department. Eggleston
has not done that. He offered as comparators six officers who engaged in political
conduct and a single officer who criticized department polices and Bieluch, but
none that did both. Eggleston cannot cobble together a comparator using multiple
officers. He must show a single, similarly situated individual who was treated
differently. Maniccia, 171 F.3d at 1368–69. He cannot make the necessary
showing, and his claim fails.
As a second theory supporting his equal protection claim, Eggleston
contends that Bieluch was more lenient with employees who committed more
serious offenses while Eggleston did nothing wrong. To support his claim,
Eggleston names a number of officers whom he alleges engaged in a wide variety
of misconduct and were disciplined less harshly than he was. Nonetheless,
Eggleston cannot prevail under this theory either, because it is clear that he
violated department policy by openly criticizing Bieluch and the department in a
press conference on April 16, 2002. The district court found that this public
criticism “subject[ed] the Office to ridicule and undermin[ed] its effectiveness.”
Eggleston freely admitted to giving that speech, and the department investigation
17
concluded that his conduct constituted insubordination in violation of department
policy. Thus, Eggleston failed to show that he violated no policy and therefore,
cannot establish a viable claim. The district court’s grant of summary judgment in
favor of Bieluch as to Eggleston’s equal protection claims was proper.
B. First Amendment Claims
Eggleston presses two First Amendment claims in this appeal. First, he
contends that Bieluch’s termination of him violated his First Amendment free
speech rights. He argues that his speech involved matters of public concern and
caused no disruption in the department. The speech in question occurred in private
discussions with Bieluch and in Command Staff meetings while Eggleston served
as undersheriff. Eggleston criticized four aspects of Bieluch’s administration: his
personnel decisions, his reclassification of the officers at the Eagle Youth
Academy, his budget allocations, and his decision to increase the number of
positions entitled to take-home car privileges. Eggleston argues that we must look
at his rank at termination (captain) and not his rank when the comments were
actually made (undersheriff). He asserts that his criticisms neither caused
disruption in the department nor suggested disloyalty to Bieluch.
We analyze Eggleston’s speech claim in accordance with the four-part test
articulated in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 173118
(1968). In considering whether particular speech is protected, we must: (1)
determine whether the employee’s speech involves a matter of public concern; and
if so, (2) weigh the employee’s First Amendment rights against the employer’s
interest in efficient public services; then, (3) decide if the speech in question played
a substantial role in the employer’s decision; and finally, (4) if the employee shows
that the speech did substantially motivate the employment decision, allow the
defendant an opportunity to establish that it would have taken the same action in
the absence of the speech. Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993).
Our first inquiry is whether Eggleston’s speech addressed a “public
concern.” The Supreme Court has defined speech addressing a public concern as
“relating to any matter of political, social, or other concern to the community.”
Connick v. Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1690 (1983). In our
assessment, we must consider “the content, form and context of a given statement,
as revealed by the whole record.” Morgan, 6 F.3d at 754 (quoting Deremo v.
Watkins, 939 F.2d 908, 910 (11th Cir. 1991)). “A court may consider the
employee’s attempts to make the concerns public, along with ‘the employee’s
motivation in speaking.’” Id. (quoting Deremo, 939 F.2d at 911). Speech is more
likely entitled to protection when it is made part of a public dialogue. See Perry v.
Sindermann, 408 U.S. 593, 598, 92 S. Ct. 2694, 2698 (1972). Additionally, speech
19
is more likely to be protected when it is made by an individual speaking out as a
citizen rather than in his capacity as an employee. See Connick, 461 U.S. at 147,
103 S. Ct. at 1690; Morris v. Crow, 142 F.3d 1379, 1382 (11th Cir. 1998).
The speech must be about a matter of public concern for First Amendment
protections to attach. That requirement is not met here. Eggleston was not trying
to expose any illegal conduct or corruption committed by Bieluch or other officers
within the department. He was instead acting in his role as undersheriff and
carrying out his duty to advise Bieluch. All his concerns were expressed internally
at staff meetings. Although it is not necessary that speech be given in a public
forum to merit protection, the fact that the speech was given to a “limited
audience” weighs against protection in the balancing process. Anderson v. Burke
County, Ga., 239 F.3d 1216, 1221 (11th Cir. 2001). There is no evidence that
Eggleston was trying to initiate public discourse or educate the electorate on the
practices of the department. He was acting as an employee, not as a citizen.
The four areas of criticism voiced by Eggleston show that his speech was not
on matters of public concern. First, he challenged Bieluch’s personnel decisions,
arguing that exams and other guidelines should be utilized to determine promotions
and that unqualified employees were being hired. We have held that personnel
decisions are basic employment issues that do not constitute matters of public
20
concern. Id. at 1220. The issues Eggleston raised dealt solely with internal office
dynamics, not matters of general public importance. Second, Eggleston criticized
Bieluch’s reclassification of the officers at the Eagle Youth Academy, which
entitled them to high-risk pension benefits. We have already held that things such
as pension benefits relate to employment issues and are not matters of public
concern. Id. Eggleston was not suggesting that Bieluch had acted illegally, he
simply took issue with Bieluch’s policy determinations about an internal
employment matter.
Third, Eggleston criticized Bieluch’s budget allocations, specifically his
decision to purchase several large-ticket items, his failure to offer quarterly budget
deficit updates, and his practice of sole sourcing. We have held that when budget
allocations detrimentally affect public safety, a matter of public concern may exist.
Martinez v. City of Opa-Locka, Fla., 971 F.2d 708, 712 (11th Cir. 1992). In the
Martinez case, however, the protected speech occurred in a public forum before the
city’s Board of Inquiry after an official had violated a city ordinance by failing to
follow budget allocation procedures. Id. Here, Eggleston admits that the actions
of Bieluch that he criticized were not illegal. Furthermore, Eggleston was not
challenging the expenditures out of a concern for their effect on public safety, but
because he thought there were better uses for the money. Eggleston was not
21
seeking a public discussion on department spending, he was simply speaking in
house in his advisory role as undersheriff. All the budgetary concerns raised by
Eggleston were more matters of internal policy than matters of public concern.
Finally, Eggleston condemned Bieluch’s decision to extend take-home car
privileges to additional department officials. This, too, is an internal employment
issue.
In summary, with his speech Eggleston only challenged general employment
policies and decisions of an internal nature. He expressed his criticisms in his
professional role as undersheriff, not as a concerned citizen. It is irrelevant that
Eggleston’s termination occurred while he was a captain, because he was serving
as undersheriff at the time the comments in question were made. He voiced all of
his criticisms internally at staff meetings, and there is no indication that he was
attempting to initiate public debate concerning the department’s policies or
Bieluch’s conduct as sheriff. Because none of the speech Eggleston offers in
support of his First Amendment free speech claim involves a matter of public
concern, we need not address the other elements of the claim.
Eggleston’s other First Amendment claim is that Bieluch violated his
constitutional rights by limiting his ability to campaign during the internal
investigation, which was conducted from April 16, 2002 through May 7, 2002.
22
During that time, Eggleston was instructed to remain in his home during work
hours, refrain from wearing his uniform, and stop representing himself as a
sheriff’s office employee. Both his patrol car and his official identification were
taken.
The district court characterized Eggleston’s claim as an “attempt[] to argue
that Bieluch placed restrictions on [his] campaign activities because Bieluch and
Eggleston are members of different factions of the Democratic party.” It rejected
the attempt as “both legally and factually insufficient to overcome summary
judgment.” On appeal, Eggleston contends that the district court misconstrued his
argument and neglected to address his arbitrary treatment “campaign” claim
separate from his failed intra-party discrimination “political” claim. Eggleston
does not appeal his “political” claim, but he does assert that he has a valid
“campaign” claim based on arbitrary treatment. We disagree. Eggleston cannot
show that Bieluch unconstitutionally restricted his ability to campaign during the
investigation.
The Supreme Court held in Clements v. Fashing, 457 U.S. 957, 963, 102 S.
Ct. 2836, 2843 (1982), that the right to campaign is not fundamental and does not
merit strict scrutiny analysis. Further, the Court held: “In approaching candidate
restrictions, it is essential to examine in a realistic light the extent and nature of
23
their impact on voters.” Id. (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.
Ct. 849, 855 (1972)). Specifically, the Court determined that it was reasonable to
require those holding certain state offices to resign from their current position
before seeking another political office. Id. at 970–71, 102 S. Ct. at 2847–48. A
state has a legitimate interest in making sure a government official “will neither
abuse his position nor neglect his duties because of his aspirations for higher
office. The demands of a political campaign may tempt a[n] [officer] to devote
less than his full time and energies to the responsibilities of his office.” Id. at 968,
102 S. Ct. at 2846.
While we agree that Eggleston has a right to campaign free from irrational
obstacles, the limitations imposed by Bieluch while Eggleston was being
investigated were not irrational. It was not unreasonable to limit Eggleston’s
campaign conduct during work hours and to restrict his ability to represent himself
as a Palm Beach County captain, using the emblems of that office while
campaigning. Those restrictions were even more reasonable considering that the
department was in the process of investigating Eggleston’s prior campaign
activities to ensure that he had not violated department policies. The limitations,
which were of twenty-one days duration, were neither arbitrary nor vindictive and
there is no evidence indicating that they were motivated by Eggleston’s political
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affiliation. As a result, the district court did not err in entering summary judgment
against Eggleston on this claim.
AFFIRMED.
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