Harold Werkheiser v. Pocono Township , 780 F.3d 172 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 13-3646
_______________
HAROLD WERKHEISER, individually and in his official
capacity as a supervisor for the Township of Pocono
v.
POCONO TOWNSHIP; FRANK HESS, Supervisor;
HENRY BENGEL, Supervisor
Frank Hess; Henry Bengel,
Appellants
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-13-cv-01001)
District Judge: Hon. A. Richard Caputo
____________
Argued December 8, 2014
BEFORE: VANASKIE, GREENBERG, AND COWEN,
Circuit Judges
(Opinion Filed: March 6, 2015)
_______________
OPINION
_______________
Edward J. Easterly, Esq.
Steven E. Hoffman, Esq. (Argued)
Norris, McLaughlin & Marcus
1611 Pond Road
The Paragon Centre, Suite 300
Allentown, PA 18104
Counsel for Appellants
Michael S. Fettner, Esq.
Cletus P. Lyman, Esq. (Argued)
Michael T. Sweeney, Esq.
Lyman & Ash
1612 Latimer Street
Philadelphia, PA 19103
Counsel for Appellee
COWEN, Circuit Judge.
2
This matter requires us to decide whether elected
officials are entitled to qualified immunity when they retaliate
against a fellow official by denying him reappointment to a
non-elected position because of comments he made in his
capacity as an elected official. Because we conclude that the
contours of the First Amendment right at issue were not
clearly established, we hold that Appellants are entitled to
qualified immunity on their federal claim.1
I.
In 2007, Harold Werkheiser was elected to serve on
the three-member Board of Supervisors within Pocono
Township. His six-year term began in January of 2008 and
was scheduled to expire at the end of 2013. In addition to
Werkheiser, the Board of Supervisors was comprised of
Defendant Frank Hess, who was elected in 2009, and
Defendant Henry Bengel, who was elected in 2011 (together,
“Appellants”). Defendant Pocono Township (the
“Township”), is a Second Class Township within the County
of Monroe, Pennsylvania.
Township Supervisors are permitted to hold positions
of employment with the Township, including Roadmaster.
The Roadmaster, or Director of Public Works, is a Township
1
In denying Appellants’ motion to dismiss, the District
Court allowed both Werkheiser’s federal claim and state law
claim to proceed. Appellants have not appealed the District
Court’s denial of their motion as it pertains to Werkheiser’s
state law claim and review of that decision is not before us.
3
employee responsible for the supervision of all the activities
of the Township Road Department and the Township Parks
and Recreation Department. In 2008, Werkheiser was
appointed Roadmaster by the Board of Supervisors.
Hess began receiving wages in 2011 and, in 2012,
assumed administrative duties previously performed by a
predecessor supervisor. He received approximately $36,000
per year in salary, health insurance, and other employee
benefits, and holds the titles of Chairman of the Board of
Supervisors, Secretary, and Treasurer. In 2012, Hess became
temporarily disabled and took leave from the Township for
ten days. During his absence, Frank Froio was selected by a
consultant to the Township to assume Hess’s administrative
duties. Froio was not appointed by the Board of Supervisors.
On February 6, 2012, Bengel made a motion, seconded by
Hess, to hire Froio as Township Administrator. Froio was to
receive compensation of approximately $70,000 annually.
Werkheiser opposed the motion, but it nonetheless carried.
As Froio’s position developed, Hess’s responsibilities
and workload decreased. Hess, however, continued to collect
approximately the same compensation. Werkheiser voiced
his objection to the cost of Froio’s position to the Township
and to the creation of a new position with greater expense.
He also objected to paying Hess when his duties were being
performed by Froio, as well as to the appointment of an
outside grant-writer, who would be performing work that
Werkheiser asserted should be performed by Froio and Hess.
In December of 2012, Appellants decided they no
longer wanted Werkheiser to serve as Roadmaster. Along
4
with several others, they began private deliberations to
discuss denying Werkheiser reappointment for 2013 and to
instead replace him with Bengel. In January of 2013,
Werkheiser was formally denied reappointment as
Roadmaster at a noticed reorganization meeting.
As a result of the decision to not reappoint him,
Werkheiser commenced an action in Pennsylvania state court.
Defendants removed the action to federal court, and
Werkheiser subsequently filed an amended complaint. In that
complaint, Werkheiser asserted a claim for First Amendment
retaliation, as well as a state law claim under the Second
Class Township Code and Pennsylvania Sunshine Law. As to
his First Amendment retaliation claim, Werkheiser alleges
that he was denied his position as Roadmaster as a result of
speech he expressed in his capacity as an elected official
concerning the Board of Supervisors’ overpayment for
administrative duties.
II.
Appellants filed a motion to dismiss both claims,
asserting, among other things, that they were entitled to
qualified immunity as to Werkheiser’s federal claim against
them. They argued that because Werkheiser’s speech
concerning Township resources and payments were made in
his official capacity as an elected representative of the
Township, the Supreme Court’s decision in Garcetti v.
Ceballos, 547 U.S. 410 (2006), applied. Accordingly, they
asserted, Werkheiser’s speech was not protected by the First
Amendment, and he was unable to demonstrate the violation
5
of his constitutional rights. For his part, Werkheiser disputed
the applicability of Garcetti, arguing that speech by elected
officials should be treated differently than speech by public
employees, and that, as an elected official, his speech was
entitled to First Amendment protection not granted to public
employees. The District Court agreed with Werkheiser,
noting that there were important differences between the
public employees discussed in Garcetti and elected officials.
It therefore concluded that Werkheiser had established a
constitutional violation.
Appellants also argued that they were entitled to
qualified immunity because the law regarding Werkheiser’s
rights was not clearly established. The District Court rejected
this argument as well. The District Court concluded that the
Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116,
136-37 (1966), clearly established that elected officials are
entitled to exercise their First Amendment rights free from
retaliation. Further explaining that the Supreme Court had
said nothing in Garcetti that overruled or altered its opinion
in Bond, the District Court denied Appellants’ motion to
dismiss. The current appeal followed.
III.
The Supreme Court has established a two-step analysis
that governs whether an official is entitled to qualified
6
immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).2 First,
whether the facts alleged by the plaintiff show the violation of
a constitutional right, and second, whether the right at issue
was clearly established at the time of the alleged misconduct.
Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.
2010) (citing Saucier, 533 U.S. at 201). We may address the
two Saucier prongs in either order, at our discretion. Pearson
v. Callahan, 555 U.S. 223, 236 (2009). Because we do not
believe the right at issue here was clearly established, we
begin with the second step.
“A Government official’s conduct violates clearly
established law when, at the time of the challenged conduct,
‘[t]he contours of [ a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is
doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987) (all alterations in original)). “In determining
whether a right has been clearly established, the court must
define the right allegedly violated at the appropriate level of
specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.
2012). The Supreme Court recently emphasized that “‘[w]e
do not require a case directly on point’ before concluding that
2
The District Court began its analysis with a
discussion of Werkheiser’s constitutional rights and,
specifically, whether elected officials are entitled to First
Amendment protection for their official speech. Because we
conclude that the law was not clearly established as to the
existence of such a right, we need not probe the merits of the
District Court’s analysis on this point.
7
the law is clearly established, ‘but existing precedent must
have placed the statutory or constitutional question beyond
debate.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting al-
Kidd, 131 S. Ct. at 2083).
A. It was Not Clearly Established that an
Elected Official’s Speech is Entitled to
First Amendment Protection
The District Court concluded that Appellants are not
entitled to qualified immunity because “a reasonable official
would have understood that retaliating against Werkheiser
because he spoke as an elected official on issues concerning
the Township would violate his constitutional rights.”
Werkheiser v. Pocono Twp., 13-cv-1001, 2013 WL 4041856,
at *14 (M.D. Pa. Aug. 8, 2013). We disagree, and conclude
that Werkheiser’s First Amendment rights, as an elected
official, were not sufficiently defined as to warrant denying
8
Appellants qualified immunity.3 We pause here to emphasize
that we do not today decide whether Garcetti is applicable to
elected officials’ speech or not. Rather, we conclude only
that the law was not clearly established on this point.
In Garcetti, a non-elected deputy district attorney
brought a section 1983 action alleging First Amendment
retaliation against the county and his supervisors. In his
capacity as deputy district attorney, he had prepared a
memorandum discussing concerns he had about potential
government misconduct. Allegedly motivated by the
expressions in his memorandum, the deputy district attorney
was then subjected to a series of retaliatory employment
actions. In its opinion, the Supreme Court drew a distinction
between a “public employee,” like the attorney, and an
ordinary citizen who speaks out for him or herself. Garcetti,
547 U.S. at 417. In the case of public employees, restrictions
3
Although not discussed by the District Court or
mentioned in any party’s brief before this court, Werkheiser
suggested at oral argument that we apply the holdings of two
First Amendment freedom of association cases, Elrod v.
Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.
507 (1980), whereby the Supreme Court explained that an
individual may establish a retaliation claim based on an
adverse action taken against him or her based on political
association. However, these cases are inapposite here, where
Werkheiser has not advanced any freedom of association
claim and instead bases his claim against Appellants entirely
on his contention that they violated his First Amendment
freedom of speech.
9
on speech are permissible because, “when a citizen enters
government service, the citizen must accept certain
limitations on his or her freedom.” Id. at 418. Accordingly,
the Court held that the plaintiff’s memorandum was not
protected speech under the First Amendment. Id.
Of course, “public employees do not surrender all their
First Amendment rights by reason of their employment.
Rather, the First Amendment protects a public employee’s
right, in certain circumstances, to speak as a citizen
addressing matters of public concern.” Id. at 417. Thus, the
Supreme Court explained, “[s]o long as employees are
speaking as citizens about matters of public concern, they
must face only those speech restrictions that are necessary for
their employers to operate efficiently and effectively.” Id. at
419.
Conversely, the Court noted that restrictions on speech
by public employees were less problematic than restrictions
on speech by ordinary citizens. This is so, in part because,
“[e]mployers have heightened interests in controlling speech
made by an employee in his or her professional capacity.
Official communications have official consequences, creating
a need for substantive consistency and clarity. ” Id. at 422.
Indeed, some restrictions on employee speech were deemed
necessary because “[s]upervisors must ensure that their
employees’ official communications are accurate,
demonstrate sound judgment, and promote the employer’s
mission.” Id. at 422-23. The court reasoned that greater
restrictions on public employees’ speech than on ordinary
citizens are therefore permissible because such restrictions
10
“simply reflect[ ] the exercise of employer control over what
the employer itself has commissioned or created.” Id. at 422.
Many of the reasons for restrictions on employee
speech appear to apply with much less force in the context of
elected officials. Werkheiser’s speech as an elected official is
not subject to prior review or approval. To use Garcetti’s
language, his speech is neither “controlled” nor “created” in
the same way that an employer controls the speech of a
typical public employee. And, as the Supreme Court
admonished, “[p]roper application of [its] precedents . . .
leads to the conclusion that the First Amendment does not
prohibit managerial discipline based on an employee’s
expressions made pursuant to official responsibilities.” Id. at
424 (emphasis added). But of course, there is no truly
comparable analog to “managerial discipline” when
discussing retaliation between elected officials.
And, because elected officials to a political body
represent different constituencies, there would seem to be far
less concern that they speak with one voice. In fact, debate
and diversity of opinion among elected officials are often
touted as positives in the public sphere. See Bond, 385 U.S.
at 136-37 (“Legislators have an obligation to take positions
on controversial political questions so that their constituents
can be fully informed by them . . . also, so [constituents] may
be represented in governmental debates by the person they
have elected to represent them.”).
Moreover, as the District Court here highlighted, the
notion that speech pursuant to a public employee’s “official
11
duties” is afforded no protection under the First Amendment
could have odd results if applied to elected officials. Relying
on another district court opinion from this circuit, the court
noted that “if Garcetti applied to elected officials, speaking
on political issues would appear to be part of an elected
official’s ‘official duties,’ and therefore unprotected. But
protection of such speech is the ‘manifest function’ of the
First Amendment.” Werkheiser, 2013 WL 4041856, at *9
(quoting Zimmerlink v. Zapotosky, No. 10-237, 2011 U.S.
Dist. LEXIS 53186 (W.D. Pa. Apr. 11, 2011)) (citing Bond,
385 U.S. at 135). Of course, Appellants may well have been
exercising a competing First Amendment right to make a
political statement by removing Werkheiser. See Blair v.
Bethel Sch. Dist., 608 F.3d 540, 545 (9th Cir. 2010) (noting
that “almost all retaliatory actions can be expressive” and
that, while an elected official may have the right to criticize
other officials for their votes, the elected officials he is
criticizing “had the corresponding right to replace [him] with
someone who, in their view, represented the majority view.”).
We are also sensitive to the fact that Supreme Court
precedent prior to Garcetti suggests that Werkheiser’s speech
may be entitled to some degree of First Amendment
protection. In Bond v. Floyd, the Supreme Court held that an
elected official’s First Amendment rights were violated when
the Georgia House of Representatives refused to seat him
because of statements he had made criticizing the Vietnam
War. 385 U.S. at 135-136. The Court noted that the
“manifest function of the First Amendment in a representative
government requires that legislators be given the widest
latitude to express their views of policy” and “debate on
12
public issues should be uninhibited, robust, and wide-open.”
Id. Indeed, the Court noted that it was part of a legislator’s
official duties “to take positions on controversial political
questions so that their constituents can be fully informed by
them, and be better able to assess their qualifications for
office; also so they may be represented in governmental
debates by the person they have elected to represent them.”
Id. at 136-37. The Supreme Court did not deem it necessary
to address or revisit Bond in deciding Garcetti.
Notwithstanding then, that the underlying rationale in
Garcetti appears, to some extent, inapplicable to elected
officials, we take seriously the Court’s explicit
pronouncements that the “controlling factor” in that case was
that the expressions at issue “were made pursuant to [the
plaintiff’s] duties as a calendar deputy” and that the
“significant point is that the memo was written pursuant to
[the plaintiff’s] official duties. Restricting speech that owes
its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee
might have enjoyed as a private citizen.” Garcetti, 547 U.S.
at 421-22. Indeed, the Court’s stated holding was simply that
“when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not
insulate their communications from employer discipline.” Id.
While there may be sound reasons to assert that Garcetti does
not apply to elected officials’ speech, we cannot accept the
District Court’s inherent conclusion that it is “beyond debate”
that this was clearly established law at the time of
13
Werkheiser’s non-appointment. Stanton, 134 S. Ct. at 5
(quoting al-Kidd, 131 S. Ct. at 2083).4
4
Werkheiser argues that even if Garcetti’s “public
employee” analysis applies to elected officials, it is not
applicable to him because Town Supervisors are not
employees of the town.
14
In this regard, we note the unsettled nature of the law
amongst both the circuit courts and the district courts. In
Rangra v. Brown, 566 F.3d 515, 518 (5th Cir. 2009), a Fifth
Circuit panel grappled with whether elected officials’ speech
Relying on two lower state court cases, he argues that
Garcetti does not apply to township supervisors because they
are not “employees” of the town. However, Werkheiser
misconstrues the law. In those cases, the courts were merely
attempting to determine whether town supervisors were
employees for purposes of two specific state statutes: the state
Workmen’s Compensation law, Savage v. Mt. Pleasant Twp.
Supervisors, 181 A. 519, 520 (Pa. Super. Ct. 1935), and a
particular provision of the Second Class Township Code
authorizing premium payments, Appeal of Auditor’s Report of
Muncy Creek Twp., 520 A.2d 1241, 1245-46 (Pa. Cmwlth.
1987). The state courts’ decisions did not speak to whether
town supervisors are employees in any broader sense and, in
the latter case, noted that the provision at issue must not have
been intended to include supervisors because it would have
granted them “unfettered authority . . . to approve additional
compensation for themselves.” Appeal of Auditor’s Report of
Muncy Creek Twp., 520 A.2d at 1245-46. In any event, the
mere fact that, in certain contexts, state courts have declined
to deem Town Supervisors employees in no way compels the
conclusion that they are not public employees for purposes of
First Amendment analysis. Moreover, the question is not
necessarily whether elected officials are public employees,
but rather whether they are sufficiently similar to public
employees that Garcetti governs and they are not entitled to
First Amendment protection.
15
is entitled to First Amendment protection in the wake of
Garcetti, albeit outside of the retaliation context. In rejecting
Garcetti’s application to elected officials, the court concluded
that “when the state acts as a sovereign rather than as an
employer, its power to limit First Amendment freedoms is
much more attenuated. That is because a state’s interest in
regulating speech as a sovereign is ‘relatively subordinate . . .
[as] [t]he government cannot restrict the speech of the public
at large just in the name of efficiency.” Id. at 522-23 (citing
Waters v. Churchill, 511 U.S. 661, 675 (1994)). In holding
that elected officials' speech is entitled to First Amendment
protection, the court permitted the officials to challenge
certain provisions of the Texas Open Meetings Act that
criminalized the discussion of public matters by a quorum of
public officials when outside of an open meeting. Id. at 522;
see also Siefert v. Alexander, 608 F.3d 974, 981 (7th Cir.
2010) (applying strict scrutiny to certain provisions of
Wisconsin Code of Judicial Conduct and engaging in a
balancing test for others, but taking for granted that an elected
state court judge’s speech is entitled to some degree of First
Amendment protection).
The continuing viability of the panel's decision in
Rangra is, however, somewhat in doubt. Following
publication of its decision, the Fifth Circuit reheard the case
en banc, and, in a one sentence opinion devoid of any
analysis, simply ordered the case dismissed as moot. See
Rangra v. Brown, 584 F.3d 206, 207 (5th Cir. 2009) (en
banc). Moreover, at least one circuit court has expressed
skepticism that elected officials’ speech is entitled to any
protection whatsoever. See Parks v. City of Horseshoe Bend,
16
480 F.3d 837, 840 n.4 (8th Cir. 2007) (stating in a footnote
without analysis that the elected official-plaintiff’s speech
would not be protected under the First Amendment if it was
made in the course of her official duties).5
There is also substantial disagreement among the
district courts. Compare Hogan v. Twp. of Haddon, No. 04-
2036, 2006 WL 3490353 (D.N.J. Dec. 1, 2006), aff’d on other
grounds, 278 F. App’x 98 (3d Cir. 2008) (concluding that
defendant was entitled to qualified immunity on plaintiff’s
First Amendment claim because Garcetti applies to elected
officials’ speech and speech made in plaintiff’s capacity as
elected official was therefore not entitled to First Amendment
protection); Hartman v. Register, No. 06-cv-33, 2007 WL
915193 (S.D. Ohio Mar. 26, 2007) (dismissing First
Amendment retaliation claim on substantially same grounds);
Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606
(W.D. Mich. 2009) (granting defendants’ motion for
summary judgment on substantially same grounds), with
Zimmerlink, No. 10-237, 2011 U.S. Dist. LEXIS 53186, at
5
We note as well that we have not yet addressed
Garcetti’s application to elected officials. We had occasion
to do so, but, having affirmed the district court’s decision on
other grounds, expressly declined to reach the issue. See
Hogan v. Twp. of Haddon, 278 F. App’x at 102 n.1 (noting
that although the plaintiff had “argued that the District Court
improperly applied the Supreme Court’s precedent in Garcetti
v. Ceballos . . . because we conclude that [plaintiff’s] First
Amendment rights were not violated, we need not reach her
Garcetti arguments.”).
17
*6-7, 8-11 (denying defendants’ motion to dismiss because
“governmental interest in regulating speech of public
employees to promote efficient operations does not apply to
speech of an elected official”); Carson v. Vernon Twp., Civ.
No. 09-6126, 2010 WL 2985849, at *14 (D.N.J. July 21,
2010) (denying motion to dismiss claim of deprivation of free
speech, at least in part, because elected official’s political
expression on township matters was “unquestionably
protected under the First Amendment.”).
Although the Supreme Court has noted that qualified
immunity is not the guaranteed product of disuniform views
of the law, we find that the well-reasoned decisions on both
sides render the law sufficiently unclear at the time of
Appellants’ actions so as to shield them from liability.
Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364,
378 (2009).
B. It was Not Clearly Established that the Type
of Retaliation at Issue Here Would Violate
the First Amendment
In addition, we hold that the law was not clearly
established that the kind of retaliation Appellants engaged in
against Werkheiser violated his First Amendment rights.
Werkheiser essentially asks this court to declare that a
politically motivated act, undertaken by a majority of his
fellow elected Board of Supervisors, pursuant to their proper
authority, nonetheless violates the First Amendment if it is
taken in retaliation for speech made in his capacity as an
18
elected official. As this court has indicated, however, not all
retaliation violates the First Amendment. See Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (noting
that the First Amendment requires “retaliatory action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights.”) (citation omitted)
(emphasis added).
To be sure, Bond, which the District Court heavily
relied on, signified that one kind of very serious retaliation by
elected officials is unlawful -- the exclusion of a duly elected
official from office. But we discern nothing in Bond that
suggests the Court intended for the First Amendment to guard
against every form of political backlash that might arise out
of the everyday squabbles of hardball politics. See, e.g.,
Camacho v. Brandon, 317 F.3d 153, 162 (2d Cir. 2003)
(concluding that a city council member’s aide could not bring
a First Amendment retaliation claim for his dismissal, in part,
because it would “subject to litigation all manners and
degrees of politically motivated, retaliatory conduct directed
at public officials.”); Zilich v. Longo, 34 F.3d 359, 363 (6th
Cir. 1994) (“The First Amendment is not an instrument
designed to outlaw partisan voting or petty political bickering
through the adoption of legislative resolutions.”). Rather, as
other courts to consider the issue have concluded, the First
Amendment may well prohibit retaliation against elected
officials for speech pursuant to their official duties only when
the retaliation interferes with their ability to adequately
perform their elected duties. See Blair, 608 F.3d at 545 n.4
(Ninth Circuit opinion noting that retaliation is unlawful
when it has the “effect, deleterious to democracy, of
19
nullifying a popular vote” or otherwise “deprive[s] [an
elected official] of authority he enjoyed by virtue of his
popular election.”).
Our opinion in Monteiro v. City of Elizabeth, 436 F.3d
397, 404 (3d Cir. 2006), similarly offers Werkheiser little
assistance. In that case, an elected member of the New Jersey
City Council claimed that his First Amendment rights were
violated when he was ejected from a Council meeting,
allegedly for expressing a particular viewpoint. The
defendants then sought to cloak themselves in the doctrine of
qualified immunity. On appeal, we were asked to decide only
whether, when entitlement to qualified immunity depends on
a disputed issue of fact – in that case, whether the plaintiff
had in fact been ejected for expressing a particular viewpoint
-- it is proper to submit that question to the jury. In affirming
the district court’s decision to deny summary judgment and
allow a jury to decide that question, we noted that “[i]t is
clearly established that when a public official excludes an
elected representative or a citizen from a public meeting, she
must conform her conduct to the requirements of the First
Amendment.” Id. But Monteiro, like Bond, focused on an
elected representative whose ability to fulfill his elected
obligations was purposefully impaired when he was
prevented from speaking at a Council meeting. Our opinion
says nothing about elected officials’ First Amendment rights
when the action at issue does not involve any such
impairment.
We also note in this regard decisions from the Fifth
and Ninth circuits. In Blair v. Bethel Sch. Dist., the Ninth
20
Circuit addressed whether an elected official could
successfully claim retaliation under the First Amendment for
speech made in his capacity as an elected official. 608 F.3d
at 541. The plaintiff in Blair was a publicly elected member
of the school board, who had also been elected by his peers to
serve as vice president. In his capacity as a member of the
school board, Blair served as a persistent critic of the school
district superintendent. Eventually, Blair’s fellow board
members voted to remove him as vice president. Id. at 543.
Blair then sued, alleging that the Board’s conduct constituted
impermissible retaliation against him for exercising his First
Amendment rights.
The Ninth Circuit held that retaliation against an
elected official is largely not actionable when it is at the
hands of his peers in the political arena. Id. The court
emphasized that Blair, like Werkheiser here, had been
removed from a position “by the very people who elected him
to the position in the first place.” Id. at 544. Importantly, the
Ninth Circuit noted that “despite [Blair’s] removal as Board
vice president, he retained the full range of rights and
prerogatives that came with having been publicly elected.”
Id. Absent such a deprivation, the court refused Blair’s
invitation to more broadly conclude “that the First
Amendment prohibits elected officials from voting against
candidates whose speech or views they don’t embrace.
Experience and political reality convince us this argument
goes too far.” Id. at 545. Accordingly, the court concluded
that the Board’s action did not amount to retaliation in
violation of the First Amendment. Id. at 546.
21
In Rash-Aldridge v. Ramirez, 96 F.3d 117 (5th Cir.
1996), the plaintiff was an elected member of the city council
who was later appointed to represent the council on a local
metropolitan planning board. In her capacity as an appointed
member of the body, she wrote a letter taking a position at
odds with one maintained by the city council. As a result of
her actions, the council removed her from her appointed
position and she sued. Id. at 118-119.
The plaintiff in Rash-Aldridge concededly made the
statements for which she was removed as an appointed
representative of the council, and not, as is alleged here, in
her capacity as an elected representative. However, that fact
was immaterial to the Fifth Circuit's decision. Rather, in
concluding that the plaintiff’s First Amendment rights had not
been violated, the Fifth Circuit emphasized that her removal
from the appointed office had “no implication of [her]
fundamental rights as an elected official.” Id. at 119. “Her
capacity as an elected official was not compromised because
the council did not try to remove her from her seat on the
council nor take away any privileges of that office because of
what she said or did.” Id.
The Fifth Circuit did not address whether the
plaintiff’s speech would be protected under the First
Amendment. But that is of little moment. In Rash-Aldridge,
as in Blair, the court drew an important distinction between
types of retaliation against elected officials: the type of
retaliation at issue in Bond, which impedes elected officials'
ability to serve as effective representatives, and is, therefore,
impermissible; and the type of retaliation at issue here, where
22
an elected official is removed from an unrelated position that
does not interfere with his or her role as an elected official
and that, accordingly, does not run afoul of the First
Amendment.6
To be sure, as we indicated in our discussion on the
applicability of Garcetti to elected officials’ speech, we do
not now decide these constitutional issues and what
retaliation against elected officials, if any, violates the First
Amendment. Rather, we consider this legal landscape to
decide whether Appellants are entitled to qualified immunity.
Contrary to the District Court, we conclude that these
opinions suggest that elected officials who are retaliated
against by their peers have limited recourse under the First
Amendment when the actions taken against them do not
interfere with their ability to perform their elected duties.
6
We are mindful that the underlying facts adduced at
trial in Squires v. Bonser, 54 F.3d 168, 171 (3d Cir. 1995), a
case cited by Werkheiser and decided by a panel of this court
that included the undersigned, bear a striking resemblance to
the current action. Nonetheless, on appeal in Squires, the
only question before us was whether the district court’s denial
of the former Roadmaster’s request for reinstatement as a
remedy was inappropriate. As a result, the analysis we
employed in Squires offers little guidance here. Nonetheless,
the fact that a jury awarded a plaintiff in Werkheiser’s
position damages on a nearly identical claim – a judgment
seemingly at odds with the remainder of the case law on this
issue – may suggest the unsettled nature of the law as to this
issue as well.
23
There is no allegation here that the failure to reappoint
Werkheiser as Roadmaster in any way excluded him from
Town Supervisors’ meetings, interfered with his rights,
privileges, or responsibilities as an elected official, or
hindered his ability to fulfill his elected duties. Indeed, the
complaint indicates that although he was not reappointed as
Roadmaster in January of 2013, his term as Township
Supervisor did not expire until the end of that year and there
is no indication that he did not fully and ably serve until the
completion of his term. Thus, unlike in Bond or Monteiro,
where an elected body attempted to prevent an official from
carrying out the duties bestowed upon him by his
constituents, here, the Board of Supervisors merely declined
to offer Werkheiser a position that was wholly unrelated to
his position as an elected official and that it had provided him
with in the first place. Against this legal backdrop, and under
these circumstances, it is not beyond debate that a reasonable
official in Appellants’ position would have understood that
retaliating against Werkheiser by denying him reappointment
would violate his constitutional rights. As a result,
Appellants are entitled to qualified immunity.
IV.
For the foregoing reasons, we vacate the District
Court’s order and judgment dated August 8, 2013 and remand
for further proceedings consistent with this opinion.
24