Flynn v. City of Boston , 140 F.3d 42 ( 1998 )

BOUDIN, Circuit Judge.

Kevin Flynn and Randy Wolfson appeal from the district court’s grant of summary judgment in favor of the defendants in their action alleging that they were discharged from their jobs with Boston Community Centers in violation of the First Amendment. Their former employer is an agency of the City of Boston with 400 employees and a budget of $15 million. It is concerned with the delivery of social services, including child care, youth work, and senior citizen programs, and it administers grants both from city funds and from other sources.

In January 1994, the newly elected mayor of Boston appointed Evelyn Riesenberg, formerly one of his special assistants, as the director of Boston Community Centers. Kevin Flynn was then the associate director of administration and finance; Randy Wolf-son was one of two associate directors for field operations. In their later filed court papers, Flynn and Wolfson describe Riesenberg’s reign in very unflattering terms.

In particular, they charge that from the outset, Riesenberg pressed Wolfson to tell her which senior staff members had worked for particular mayoral candidates; and Flynn says that Riesenberg asked him how she could fire the entire central office staff and replace them with her own supporters or those of the mayor. Both say that they argued with Riesenberg against this course of action.

They also say that Riesenberg sought, over their opposition, to appoint unqualified personnel to reward supporters of the mayor, and they provide specific examples. Flynn says that Riesenberg ordered him to raise pay for a union worker in violation of the union contract. Flynn and Wolfson also say that Riesenberg mishandled several sexual harassment complaints and related personnel actions, despite their objections.

In August 1994, Riesenberg gave Flynn and Wolfson termination notices, asserting that she was reorganizing the agency.. When they protested, the city’s corporation counsel wrote to them that they were being discharged because of the reorganization and “an evaluation of their performance.” Flynn and Wolfson in turn say that the reorganization was a sham and that neither of them has any negative evaluations in his or her personnel files.

After Flynn and Wolfson were fired, they brought suit in the district court against Riesenberg, the mayor, and the city. The plaintiffs sought declaratory and injunctive relief, and damages under 42 U.S.C. § 1983, on the ground that their First Amendment rights had been infringed; they also made statutory and common law claims based on state law. After discovery, the plaintiffs waived some claims, and the district court dismissed or granted summary judgment in favor of defendants on all of the remaining claims.

On summary dispositions, we take the facts and draw inferences in favor of the non-moving party. Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.1996). But the question whether a position is subject to political discharge, or how far the First Amendment protects against having one’s views considered in adverse personnel actions, are essentially legal questions for the court, even if they are close questions. McGurrin Ehrhard v. Connolly, 867 F.2d 92, 93 (1st Cir.1989).

From the outset of the Republic, government jobs have gone by political patronage, tempered now by civil service laws that afford varying degrees of protection, especially to lower level employees. See Elrod v. Burns, 427 U.S. 347, 377-79, 96 S.Ct. 2673, 2691-92, 49 L.Ed.2d 547 (1976) (Powell, J., dissenting). To this accommodation, the Supreme Court about 25 years ago brought a new constitutional principle: that political firings by the government are allowed only in those jobs for which political loyalty is an “appropriate” criterion. See Elrod v. Burns, 427 U.S. 347, 372-73, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976); Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294-95, 63 L.Ed.2d 574 (1980).

In response, the lower federal courts have tried to develop doctrine, but it is largely a porridge of general statements and variables: positions are less likely to be protected to the extent that they are “higher,” more “political,” more “confidential,” and so on; duties prevail over titles; everything depends on circumstances. See, e.g., Cordero v. De Jesus-Mendez, 867 F.2d 1, 10-21 (1st Cir.1989); see also 4 R.D. Rotunda & J.E. Nowak, Constitutional Law: Substance and Procedure § 20.42, at 272-75 (2d ed.1992). To get any practical sense of where the lines have been drawn, one has to look at the results. See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st Cir.1986) (en banc) (collecting cases), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987).

At least in the First Circuit, the cases have regularly upheld against First Amendment challenge the dismissal on political grounds of mid- or upper-level officials or employees who are significantly connected to policy-making. This result has followed where the plaintiff merely represented the agency’s policy positions to other entities or to the public or where important personnel functions were part of the portfolio. See, e.g., Cordero, 867 F.2d at 11-12, 14. The common thread is that the officials or employees were policymakers or those who are in close working relationships with policymakers.

Thus, we have upheld political discharges of the regional director of an administrative agency, the municipal secretary in a mayor’s office, an officer in charge of human resources, a director of public relations, a superintendent of public works, a director of a city’s federal programs office, and a director of a satellite office of the Massachusetts Secretary of State.¹ Many such plaintiffs were subordinates within their own offices. Just one decision provisionally protected an official with a high-sounding title, but her duties were essentially technical. See De Choudens v. Government Dev. Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir.1986), cert. denied, 481 U.S. 1013,107 S.Ct. 1886, 95 L.Ed.2d 494 (1987).²

By contrast, this court has disallowed political firings for a cleaning supervisor, a career employee administrative aide, and an auditor of books and records. See Cordero, 867 F.2d at 14-15, 16-18. The Supreme Court cases, granting or looking toward protection, have involved a floor supervisor, a guard, a process server, an assistant public defender, a rehabilitation counselor, a road equipment operator, a garage worker, and a dietary manager. See Elrod, 427 U.S. at 350-51, 372-73, 96 S.Ct. at 2678-79, 2689-90; Branti 445 U.S. at 508, 519-20, 100 S.Ct. at 1289-90, 1295-96; Rutan v. Republican Party, 497 U.S. 62, 67, 76, 110 S.Ct. 2729, 2733, 2737-38, 111 L.Ed.2d 52 (1990). Thus, it is primarily low-level jobs that have been protected, although this encompasses most workers in most agencies of government.

“Appropriate”—the test used in Branti—is an elastic concept, but we have an obligation to apply it consistently within the circuit. Under our prior decisions, Flynn is not protected. As associate director of administration and finance at Boston Community Centers, he had authority over human resource issues, supervision of the grants managers and personnel director, labor negotiations, and liaison responsibilities with a number of city or state agencies. See Cordero, 867 F.2d at 11-15; cf. Goyco, 849 F.2d at 685. These major responsibilities meant that policy disagreements with his politically appointed supervisor could lead to less effective implementation of political goals.

Wolfson is a closer case, but not by much—given the standards of prior cases. She was associate director for field operations and supervised about half the site coordinators, oversaw several programs, served as liaison with two city agencies, oriented new local council members, and monitored compliance with legal requirements. Cf. Nunez, 834 F.2d at 24. Like Flynn, Wolfson reported directly to the executive director of the agency and so represented top management in an agency with 400 employees.

The responsibilities of Flynn and Wolfson just described—and these are functions, not titles—obviously implicate policy. Indeed, they are the same kind of senior management functions that our earlier decisions have ascribed to a number of employees found to be subject to political discharge. For example, Cordero, 867 F.2d at 13-14, upheld the dismissal of a municipality’s director of finance, whose primary tasks included supervision of the accounting system, advising officials on fiscal matters, and supervising the disbursement of municipality funds. And in McGurrin Ehrhard, 867 F.2d at 93-95, we sustained the dismissal of the director of the Massachusetts Secretary of State’s satellite office, whose job consisted essentially of providing information to citizens, “input” into personnel issues, and development of office policies.

Under our decisions, an employee is not immune from political firing merely because the employee stands apart from “partisan” polities, see Mendez-Palou, 813 F.2d at 1262-63, or is not the ultimate decisionmaker in the agency, see McGurrin Ehrhard, 867 F.2d at 95, or is guided in some of his or her functions by professional or technical standards, see Cordero, 867 F.2d at 13-14. Rather, it is enough that the official be involved in policy, see Jimenez Fuentes, 807 F.2d at 246, even if only as an adviser, implementer, or spokesperson, as Flynn and Wolfson certainly were. To hold Flynn and Wolfson to be protected would effectively depart from the main line of case law in this circuit.

One might ask why anyone, apart from elected officials, should be subject to “political” firing. The answer—this is folk wisdom, not mathematical proof—is that to implement their mandates, elected officials need a cadre of agency leaders and top subordinates responsive to the elected officials’ goals. See, e.g., Elrod, 427 U.S. at 367, 96 S.Ct. at 2686-87. A rule effectively preventing the replacement of senior officials by new administrations would be a very serious step. A legislature can provide such tenure, but the Constitution does not command it.

None of this means that every “political” firing of a senior official is an act of good government. Indeed, if the allegations of the complaint are true, and they are still only allegations, Flynn and Wolfson were public servants honestly resisting very dubious behavior by a superior. But the main remedy for mismanagement is elections. And officials who rise to the level of Flynn and Wolfson do so at the cost of any constitutional ' tenure protection against political discharge—unless and until the Supreme Court takes a different view and extends Elrod and Branti further.

A different, although related, issue is presented by the plaintiffs’ alternative claim that they were fired “in retaliation” for protected speech. The legal standard in this area is notoriously fuzzy because the cases deal under the same head with very different problems and “justifications,” for example, the disruptive employee, the whistle-blower who ignores channels, the official who disagrees about policy, the contractor who offers public political criticism of the agency, and so on.³

In the present case, we are not concerned with public expressions of political opposition or. whistle-blower reports made publicly or within the agency but outside regular channels. Rather, the plaintiffs are policy level officials who disagreed with their superior on a number of policy and personnel issues before the agency and (quite properly, based on their allegations) expressed their disagreement to her. Although Riesenberg denies it, we must suppose (on summary judgment) that plaintiffs could prove at trial that these disagreements contributed to their firing.

To this extent, the plaintiffs’ expression of their views on issues played a role in their loss of position, and we will assume arguendo that the issues upon which Flynn and Wolf-son expressed disagreement are the types of matters “of political, social, or other concern to the community” that the Supreme Court has said would trigger First Amendment analysis. Connick, 461 U.S. at 146, 103 S.Ct., at 1689-90. But expressing views on matters of public concern is only the first step in the Supreme Court’s test for whether an employee is protected by the Constitution from being fired for expressing views.

The second step, vital here, is a balancing of the employee’s interests “as a citizen, in commenting upon matters of public concern” against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. The Supreme Court has identified a number of state interests that might be impaired by an employee’s statements (discipline, harmony among co-workers, interference with duties), but one such interest looms large here: the effect of the statements on those “close working relationships for which personal loyalty and confidence are necessary----” Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987).

In Hall v. Ford, 856 F.2d 255 (D.C.Cir.1988), the District of Columbia Circuit addressed this type of justification in a situation somewhat akin to this ease. In Hall, the University of the District of Columbia’s athletic director was fired allegedly due to a disagreement between him and the university’s president over the university’s compliance with its own and NCAA rules. The court held initially that the athletic director’s statements were about matters of public concern. It then moved to the second step, as we do in this case.

.Recognizing that the Supreme Court had not yet squarely addressed the situation in free speech terms, the District of Columbia Circuit looked to the political patronage eases for help. 856 F.2d at 261-64. “Although not directly applicable, the patronage cases address similar concerns and recognize a government interest that is apposite here.” Id. at 261. Ultimately, the court upheld the right of the university president to insist on an athletic director who had compatible views on university matters, paralleling the political patronage cases. See also DiMeglio v. Haines, 45 F.3d 790, 805-06 (4th Cir.1995).

No mechanical formula exists to resolve all cases where an employee is fired and the firing can be traced back in some causal way to “speech” by the employee. But we think it is a reasonable working rule that, where the employee is subject to discharge for political reasons under the Elrod and Branti cases, a superior may also—without offending the First Amendment’s free speech guarantee—consider the official’s substantive views on agency matters in deciding whether to retain the official in a policy related position. Indeed, without this congruence, the latitude allowed to the superior by the Supreme Court could be effectively nullified.

The issues about which Flynn and Wolfson spoke—and the speech to which they attribute their firings—related to the operation of the office (primarily to matters of hiring, firing and discipline). Yet it is issues of this kind, and the views of management employees about these issues, that are properly considered by the head of the office in deciding who is best suited to be her direct subordinates. Precisely because Flynn and Wolf-son’s “speech” did bear on the job and on their working relationship with Riesenberg, Riesenberg was permitted to conclude reasonably that she did not have the necessary trust and confidence to retain them.

In this context, it does not make any difference that Flynn and Wolfson may have been “right,” and Riesenberg wrong in the positions urged or taken. A jury might easily be confused on this point, thinking that a junior official should be praised and not fired for giving sound advice. But staffing the senior levels of a city agency is the business of the mayor and his appointees, responsible in turn to the electorate, unless a legislature says otherwise.

This does not mean that anything goes for policy-related positions: this would be a different case if an executive were fired for reporting a crime or fraud or for expressing adherence to one church or another. Compare O’Connor, 994 F.2d at 915-16. So, too, the situation would be different if a clerical worker, in a non-disruptive and otherwise proper manner, disagreed about how the agency was doing its job. If the employee were not at a policy level, it might be hard to see why such criticism would be pertinent to retention.

Further, the lack of a First Amendment claim does not mean that, the plaintiffs are without remedy. The district court dismissed plaintiffs’ state-law counts for wrongful discharge and related misconduct, and plaintiffs have appealed. But absent federal claims, it is not clear why either this court or the district court should be drawn into issues that involve the construction of state statutes and of state common law as applied to regulate the personnel actions of a local governmental unit.

The only jurisdiction in the district court over the state claims was pendent, and the federal claims were dismissed before trial. Given the subject matter, there is special reason why state judges should referee disagreements about whether and when state or local officials may be fired. Cf. Pyle v. South Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir.1995). Where this is so, and where as here there are few economies in a federal court resolution, the better course is ordinarily to dismiss the state claims without prejudice and leave them to local courts. Cf. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988).

For the foregoing reasons, the district court’s grant of summary judgment in favor of the defendants on the federal claims is affirmed, the district court’s grant of summary judgment in favor of the defendants on the state-law claims is vacated, and the ease is remanded for dismissal of the state-law claims without prejudice. Each side shall bear its own costs on this appeal.

It is so ordered.

1 . See Jimenez Fuentes, 807 F.2d at 246; Cordero, 867 F.2d at 10-12, 14; O'Connor v. Steeves, 994 F.2d 905, 911 (1st Cir.), cert. denied, 510 U.S. 1024, 114 S.Ct. 634, 126 L.Ed.2d 593 (1993); Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 17 (1st Cir.1996); McGurrin Ehrhard v. Connolly, 867 F.2d 92, 96 (1st Cir.1989).

2 . De Choudens arose on interlocutory appeal, and this court did not decide that the official was protected but only that there was enough for a preliminary injunction. Later, in discussing De Choudens, this court made clear that an employee involved in technical matters might still be subject to political discharge on account of other duties (public litigation, advice) less technical in nature. Nunez v. Izquierdo-Mora, 834 F.2d 19 (1st Cir.1987). See also Goyco de Maldonado v. Rivera, 849 F.2d 683 (1st Cir.1988).

3 . See Pickering v. Board of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 564, 88 S.Ct. 1731, 1732-33, 20 L.Ed.2d 811 (1968); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 281-82, 97 S.Ct. 568, 573-74, 50 L.Ed.2d 471 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410. 411-13. 99 S.Ct. 693, 694-95, 58 L.Ed.2d 619 (1979); Connick v. Myers, 461 U.S. 138, 140-41, 103 S.Ct. 1684, 1686-87, 75 L.Ed.2d 708 (1983); Board of County Comm’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668, -, 116 S.Ct. 2342, 2345, 135 L.Ed.2d 843 (1996); O'Connor, 994 F.2d at 911-18.