UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2134
PATRICK J. O'CONNOR,
Plaintiff, Appellant,
v.
ROBERT W. STEEVES, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Paul F. Denver with whom Neil Rossman and Rossman, Rossman &
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Eschelbacher were on brief for appellant.
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John Foskett with whom Deutsch, Williams, Brooks, DeRensis,
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Holland & Drachman, P.C., Nancy Merrick, Merrick & Louison, Charles H.
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Riley, Jr. and Ganz, Ham & Riley were on brief for appellees.
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May 28, 1993
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CYR, Circuit Judge. Patrick O'Connor, former Superin-
CYR, Circuit Judge.
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tendent of Public Works for the Town of Nahant, Massachusetts
("Town"), was discharged following an extended feud with Select-
man Robert Steeves. O'Connor sued the Town and its three select-
men Steeves, Harry Edwards and Richard Lombard for violat-
ing his First Amendment rights to freedom of speech and political
association. The district court granted summary judgment for all
defendants.
I
I
BACKGROUND
BACKGROUND
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Summary judgment is appropriate if no genuine issue of
material fact exists and the moving party is entitled to judgment
as a matter of law, Fed. R. Civ. P. 56(c); Mesnick v. General
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Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991), cert. denied, 112
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S.Ct. 2965 (1992). All reasonable inferences are to be drawn in
favor of the party opposing summary judgment, in this case
appellant O'Connor, just as all disputed facts are viewed in the
light most favorable to him. See Goldman v. First Nat'l Bank,
___ _______ _________________
985 F.2d 1113, 1116 (1st Cir. 1993); Garside v. Osco Drug, Inc.,
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895 F.2d 46, 48 (1st Cir. 1990). On the other hand, we will not
credit "conclusory allegations, improbable inferences, and unsup-
ported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co.,
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896 F.2d 5, 8 (1st Cir. 1990).
2
A. The Town
A. The Town
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Nahant, Massachusetts, is a municipality of approxi-
mately 4,200 people, located north of Boston. Under the Town
Charter, a three-member Board of Selectmen serves as the "chief
policymaking agency of the town." Selectmen serve staggered
three-year terms; one seat on the Board is filled by election
each year.
Among their other duties, the Selectmen are charged
with appointing a Superintendent of Public Works (hereinafter
"Superintendent"), whose duties are defined in the Town Charter:
He shall administer, under the supervision
and direction of the Selectmen, a Department
of Public Works and the highway, water, sew-
er, cemetery, tree warden and health
departments. He shall also administer, under
the supervision and direction of the Select-
men, such other departments under their su-
pervision as the Selectmen may designate,
except the fire and police. He shall be
responsible for the administration of all
departments within the scope of his duty, and
shall hold office subject to the will of the
Selectmen. He shall be specially fitted by
education, training and experience to perform
the duties of said office. . . . During his
tenure, he shall hold no other elective or
appointive office, nor shall be engaged in
any other business or occupation. . . . and
shall, subject to the approval of the Select-
men, appoint such assistants, agents and
employees as the performance of the duties of
the various departments under his supervision
may require.
The job description for the position notes that it is "performed
with professional independence and considerable latitude for
independent administrative judgment" and that "[e]rrors could
result in major loss of time and expenses." It also notes that
3
the Superintendent "makes frequent contacts with other officials
and the general public." Commensurate with these responsibili-
ties, the Superintendent receives a salary of $41,286; by
comparison, the Nahant Police Chief and Nahant Fire Chief each
receive $41,365, and the Nahant Superintendent of Schools re-
ceives $48,000. Lower level salaries in the Department of Public
Works ["Department"] range from $20,000-$24,000 for laborers to
$31,000-35,000 for foremen.
B. O'Connor's Appointment
B. O'Connor's Appointment
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Prior to 1989, Robert Steeves served as Superintendent.
The Town's three Selectmen at the time were Jayne Solomine,
Richard Lombard, and Charles Kelley. In February 1989, following
Kelley's death, Steeves was elected to the Board of Selectmen,
triggering a search for a replacement Superintendent. The
position was advertised as requiring "an associates degree in
civil engineering or five years experience in related engineering
fields."
Although O'Connor had no engineering degree, he submit-
ted an application for the position. O'Connor had worked in
construction prior to 1963; then as a foreman in a local manufac-
turing plant; then, following his retirement, in various posi-
tions for the Rynn Corporation, a family-owned construction
company. More to the present point, perhaps, O'Connor had been
active in the Solomine, Kelley, and Lombard election campaigns,
having headed Solomine's initial campaign for public office in
1983. On July 20, 1989, O'Connor was appointed Superintendent,
4
by a 2-1 vote, with Lombard and Solomine voting in favor.
Steeves voted against the appointment, stating that O'Connor was
unqualified and had been appointed because of his connections to
the Lombard and Solomine election campaigns.
C. Steeves and O'Connor
C. Steeves and O'Connor
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Notwithstanding O'Connor's appointment as Superinten-
dent, Steeves continued his hands-on involvement in the Depart-
ment, dealing with vendors, directing personnel, and making
various small purchases on the Department's account. O'Connor
believed that Steeves' continuing involvement "undermined"
O'Connor's authority within the Department, and on several occa-
sions in late 1989 O'Connor told Steeves he should stay "out of
doing my job." At around the same time, O'Connor became aware of
Steeves' practice of purchasing goods for personal use through
the Department account, which was not subject to the 5% Massachu-
setts sales tax. Although Steeves later repaid the Department
for these purchases, the record does not indicate that the sales
tax was ever paid. After discussing the matter with Town Accoun-
tant Joseph Canty, O'Connor concluded that the practice was
improper, and asked Steeves to stop "so we could have some
accountability through the financial system and all these invoic-
es and everything else." Steeves did not respond.
When his approaches to Steeves proved unsuccessful,
O'Connor complained to Selectmen Lombard and Solomine about
Steeves' conduct, including the improper use of the Department
account. In January or February 1990, O'Connor wrote the Board,
5
detailing his complaints about Steeves' purchasing practices.
The letter was discussed at a "public meeting" of some kind,
although O'Connor is not sure whether any members of the public
were in attendance. Selectman Lombard told Steeves to stop using
the Department account, and wrote all department heads directing
them to instruct employees not to charge purchases on department
accounts without authorization. In response to Lombard's letter,
O'Connor drafted an internal memorandum prohibiting unauthorized
purchases on the Department account. The memorandum had little
noticeable effect. Steeves continued to charge personal pur-
chases on the Department account.
In March 1990, O'Connor addressed another memorandum to
the Board, again describing Steeves' personal use of the Depart-
ment account, and requesting that these practices be stopped.
Lombard read the memorandum at another Board meeting and issued
Steeves another warning, but apparently Steeves did not terminate
the practice. The various disputes between O'Connor and Steeves
led to increased friction within the Department. By the spring
of 1990, as all parties concede, the Department's employees had
divided into two factions, which communicated poorly, apparently
on unfriendly terms.
2. The Town Water Crisis
2. The Town Water Crisis
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In late March 1990, shortly before the annual Town
election, larger events temporarily distracted the parties from
the dispute over Steeves' purchasing practices, and caused them
to focus instead on the breakdown of communications within the
6
Department. Three consecutive readings of the Town water supply
revealed bacterial contamination; under Massachusetts law, the
Department was required to notify the public and the Massachu-
setts Department of Environmental Protection ("DEP"), and to take
steps to safeguard the Town water supply. O'Connor was notified
of the contamination during a family emergency, and called on
Steeves to take charge of notifying the DEP. Steeves later
insisted that he promised O'Connor no specific assistance.
Phillip Applin, a Department employee, testified that although he
provided information to Steeves at O'Connor's direction, he did
so with hesitation, "because Mr. Steeves was not supposed to be
involved with bothering the Public Works employees." Applin also
testified that, as late as April 6, 1990, O'Connor and Steeves
obviously had not yet spoken to each other about whether the DEP
had been notified. Apparently as a result of the breakdown in
communications between the parties, neither DEP nor the Town was
notified about the contamination for several days, and a number
of Town residents became seriously ill.
The perceived mishandling of the water contamination
problem generated considerable public controversy, and became an
important factor in the April, 1990 elections. Selectman Jayne
Solomine, who supported O'Connor, was replaced by Harry Edwards,
a Steeves supporter. Edwards later stated that he had been ap-
proached, prior to the election, by voters concerned about
O'Connor's performance during the Town water crisis, and that he
viewed his election as a mandate to remove O'Connor as Super-
7
intendent.
D. O'Connor's Termination
D. O'Connor's Termination
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Following Edwards' election and the correction of the
water contamination problem, O'Connor resumed his complaints
about Steeves' unauthorized purchasing practices. In May or
June, O'Connor presented the Board with another invoice for a
personal purchase by Steeves on the Department account. O'Connor
also approached Edwards, the new Selectman, seeking to discuss
Steeves' misuse of Department accounts. Edwards appeared unin-
terested.
At a Board meeting on May 24, 1990, Lombard moved to
reappoint O'Connor as Superintendent; Edwards and Steeves blocked
the motion. On June 28, 1990, Lombard again moved to reappoint
O'Connor, but once again Edwards and Steeves blocked the reap-
pointment. Edwards then moved to terminate O'Connor, but with-
drew the motion without explanation. On July 12, 1990, O'Con-
nor's termination again came up for a Board vote. Just before
the vote, O'Connor left the meeting, went to his office, and
returned with a number of Department invoices signed by Steeves,
then proceeded to describe Steeves' improper conduct to those in
attendance, stating that he wanted the townspeople to know "what
was really going on in the city hall."1
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1O'Connor apparently succeeded in piquing public interest
about Steeves' purchasing practices. Following O'Connor's
termination, the Essex County District Attorney requested "an
audit of the Town's procurement policies, practices and proce-
dures." The State Auditor ultimately identified 32 purchases of
goods totalling approximately $2600 by individuals for
8
Lombard voted against O'Connor's termination; Edwards
and Steeves voted in favor. Edwards later said he voted to ter-
minate O'Connor because of the "mandate" he had been given by
voters after the Town water crisis. Steeves later stated that he
voted to terminate O'Connor because of O'Connor's alleged in-
volvement in Solomine's unsuccessful reelection bid, and because
O'Connor allegedly had told a Department employee not to vote for
Edwards during the April 1990 elections, which O'Connor denies.
In August, 1990, O'Connor sued, alleging, inter alia, that he had
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been discharged in retaliation for his political affiliation with
Solomine, and for his accusations against Steeves.2
II
II
DISCUSSION
DISCUSSION
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A. Political Discharge
A. Political Discharge
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A public employee may not be discharged, demoted, or
disciplined for political activities or beliefs, unless political
affiliation or belief is an appropriate job qualification for the
particular position. See Rutan v. Republican Party of Illinois,
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497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod
______ ______ _____
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their own use. The audit noted that "the practice of allowing
individuals to purchase items through the town is improper, if
not illegal, and holds the town at risk of paying for any pur-
chases that are not identified as personal purchases." The audit
did not identify the individuals responsible for these improper
purchases.
2The district court dismissed O'Connor's various other
claims under federal and state law on the merits. O'Connor does
not challenge those dismissals.
9
v. Burns, 427 U.S. 347 (1976). Assuming, without deciding, that
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political affiliation was a "motivating factor" for O'Connor's
discharge, see Mt. Healthy City School Dist. Bd. of Education v.
___ ______________________________________________
Doyle, 429 U.S. 274, 287 (1977); see also Acosta-Sepulveda v.
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Hernandez-Purcell, 889 F.2d 9, 12-13 (1st Cir. 1989); Rosado v.
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Zayas, 813 F.2d 1263 (1st Cir. 1987), we affirm the grant of
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summary judgment against O'Connor, since we conclude that politi-
cal affiliation was an appropriate requirement for the Superin-
tendent position.
Although "[t]he difficulties in determining whether a
government employee is protected from a politically motivated
discharge are considerable," Agosto-de-Feliciano v. Aponte-Roque,
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889 F.2d 1209, 1214 (1st Cir. 1989) (en banc), the test we apply
is familiar. First, we inquire whether the overall functions of
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the employee's department or agency involve "decision making on
issues where there is room for political disagreement on goals or
their implementation," Jimenez Fuentes v. Torres Gaztambide, 807
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F.2d 236, 241-42 (1st Cir. 1986) (en banc), cert. denied, 481
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U.S. 1014 (1987); see also Rodriguez-Burgos v. Electric Energy
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Auth., 853 F.2d 31, 35 (1st Cir. 1988); Goyco de Maldonado v.
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Rivera, 849 F.2d 683, 684-85 (1st Cir. 1988). Second, we decide
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whether the particular responsibilities of the plaintiff's
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position, within the department or agency, resemble those of "a
policymaker, privy to confidential information, a communicator,
or some other office holder whose function is such that party
affiliation is an equally appropriate requirement" for continued
10
tenure. Jimenez Fuentes, 807 F.2d at 242. Among the indicia
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material to the second element are "'relative pay, technical
competence, power to control others, authority to speak in the
name of policymakers, public perception, influence on programs,
contact with elected officials, and responsiveness to partisan
politics and political leaders.'" Id. (quoting Ecker v. Cohalan,
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542 F.Supp. 896, 901 (E.D.N.Y. 1982)); see also Mendez-Palou v.
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Rohena-Betancourt, 813 F.2d 1255, 1258-59 (1st Cir. 1987); see
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generally Stott v. Martin, 783 F.Supp. 970, 976-82 (E.D.N.C.
_________ _____ ______
1992) (collecting First Circuit case law following Jimenez Fu-
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entes).
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The summary judgment record establishes beyond perad-
venture that the Department "handled matters potentially subject
to partisan political differences," Mendez-Palou, 813 F.2d at
____________
1258, not unlike governmental departments in larger municipali-
ties. See Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th
___ _______ ________________
Cir. 1985), cert. denied, 474 U.S. 946 (1985) (cautioning against
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"unduly myopic view" of "the role of politics in the seemingly
apolitical context of universal provision of services").
The primary function of any local government
entity is the provision of services such as
police and fire protection, public schools,
hospitals, transportation, and libraries, as
well as quasi-utility functions such as wa-
ter, garbage, and sewage services. Elections
often turn on the success or failure of the
incumbent to provide these services, and, as
campaigns develop, the opposing sides put
forth varying proposals about how best to
provide services. While the ultimate goal of
all sides might be the same, there is clearly
room for principled disagreement in the de-
velopment and implementation of plans to
11
achieve that goal.
Id. Here, the Department's role in the life of the Town plainly
___
parallels the Water Department's role in Tomczak, which repeated-
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ly has been cited in this circuit as a benchmark for evaluating
the political responsibilities of public employment. See, e.g.,
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Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 260 (1st Cir.
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1987) (finding administration of agrarian reform programs, by
Puerto Rico's Regional Housing Administration, "at least as
important to partisan political goals as the provision of water
discussed in Tomczak"); see also Cordero v. De Jesus-Mendez, 867
_______ ___ ____ _______ _______________
F.2d 1, 15 (1st Cir. 1989) (finding "no evidence of comparable
responsibility" between Water Director's position in Tomczak and
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plaintiff's position as Administrative Aide to the Assistant
Director of Public Works in Town of Moca, Puerto Rico); Roman
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Melendez v. Inclan, 826 F.2d 130, 133 (1st Cir. 1987) (finding
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duties of Regional Manager in Puerto Rico's General Services
Administration "analogous, in general character," to that of
Water Director in Tomczak).3 It also offers clear confirmation
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____________________
3Like the Water Department in Tomczak, the Department
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performed "quasi-utility functions" for virtually all community
residents, and, therefore, was capable of attracting significant
public attention in the context of a local election campaign.
The same can be said, of course, about many other public and
municipal agencies and departments. Thus, for example, we have
held this first prong of the Jimenez Fuentes test to have been
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met by the position of Regional Director of the Puerto Rico
General Services Administration, insofar as that agency was
responsible for determining "the degree of attention [to be
given] the physical conditions of public buildings . . . which
buildings need immediate or special care, . . . whether to give
priorities to rural or urban schools," Roman Melendez, 826 F.2d
______________
at 134; the Puerto Rico Department of Natural Resources, which
"formulates and implements public policies that potentially
12
of Tomczak's continuing validity: by all accounts, as the
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district court pointed out, the 1990 elections for Town Selectman
turned in large part on the Department's failure to assure safe
drinking water to Town residents.
Moreover, whatever difficulties we might face in
applying the second prong of the Jimenez Fuentes test to subor-
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dinate positions within the Department, see, e.g., Cordero, 867
___ ____ _______
F.2d at 14-15 (finding political affiliation inappropriate job
requirement for assistant director of public works), the Superin-
_________
tendent's "inherent responsibilities" under the Town Charter, as
the person "responsible for the administration of all departments
within the scope of his duty," plainly "'had a bearing on the
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implicate partisan interests," Monge-Vazquez v. Rohena-Betan-
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court, 813 F.2d 22, 26 (1st Cir. 1987); accord Navas Chabran v.
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Santiago Nieves, 666 F.Supp. 16, 18 (D.P.R. 1987); and the Puerto
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Rico Urban Development and Housing Corporation, which partici-
pates in "the provision of housing to low and middle income city
residents . . . a vital political issue," Jimenez Fuentes, 807
________________
F.2d at 241-44.
O'Connor challenges any analogy to Tomczak, asserting that
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"the duties, size of staff and budget of the First Deputy Commis-
sioner of the Water Department of Chicago . . . differ material-
ly" from those of the Nahant Superintendent. It is true, of
course, that the $4O million operating budget and 1,150 employees
controlled by the Water Department in Tomczak greatly exceed
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O'Connor's $60,000 departmental budget and fifteen person staff.
But we think O'Connor's direct comparison, based exclusively on
departmental size and budget, overlooks the equally dramatic
differences in the populations and municipal budgets of Chicago
and Nahant. Chicago's population is approximately 2.8 million;
Nahant's approximately 4,200. Chicago's annual budget is approx-
imately $3.2 billion; Nahant's approximately $4 million. We do
not think governmental provision of essential public services is
any the less prone to politicization in smaller communities;
municipal services are as essential to the few as to the many.
In light of the broader scope of the public services it provides,
we think the role of the Department in the political life of
Nahant is at least comparable to that of the Water Department in
__ _____
Chicago. Cf. Cordero, 867 F.2d at 15.
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13
partisan goals and policies'" of the Department as a whole.
Rodriguez-Burgos, 853 F.2d at 35 (quoting Mendez-Palou, 813 F.2d
________________ ____________
at 1263). O'Connor protests that, in practice, his position
involved little managerial responsibility, and he was in fact
"essentially a working foreman." As we have held, however, "the
actual past duties of the discharged employee are irrelevant if
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the position inherently encompasses more expansive powers and
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more important functions that would tend to make political af-
filiation an appropriate requirement for effective performance."
Mendez-Palou, 813 F.2d at 1258 (emphasis added). Accordingly,
____________
absent ambiguity in the official job description, the analysis
must focus upon the "powers inherent in a given office, as
opposed to the functions performed by a particular occupant of
that office." Jimenez Fuentes, 807 F.2d at 242; see also, e.g.,
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Batistini v. Aquino, 890 F.2d 535 (1st Cir. 1989); Mendez-Palou,
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813 F.2d at 1258; cf. Stott, 783 F.Supp. at 976 n.6 (noting that
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the Jimenez Fuentes court "did review plaintiffs' testimony about
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their actual duties," and concluding that "such testimony may be
useful in filling gaps left by the official job description and
in amplifying the responsibilities listed in the description
. . . [though not] to belittle the job into one with less signif-
icant responsibilities").
The district court carefully, and in great detail,
analyzed the job description for the position of Superintendent,
and its unchallenged findings that seventeen of twenty-three
listed duties are "policymaking," "representative," or "per-
14
sonnel" functions comport with our "common sense judgment" on
the matter. See Jimenez Fuentes, 807 F.2d at 242. As the
___ _______________
district court correctly determined that O'Connor's political
affiliation was an appropriate criterion for the position that he
held, we affirm its grant of summary judgment on the political
discharge claim.
B. "Whistleblowing" Claim
B. "Whistleblowing" Claim
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O'Connor's alternative claim presents a closer ques-
tion. Essentially, O'Connor contends that he was discharged
because he disclosed Steeves' unauthorized use of the Department
account; that these disclosures dealt with a matter of signifi-
cant public concern; and that his First Amendment right to speak
out on the subject against the interests of Steeves, his
elected superior outweighed the Town's demonstrated interest
in protecting Department operations from any resulting disrup-
tions and inefficiencies. We agree, and since we are unable to
conclude, on the present record, that O'Connor's discharge could
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not have resulted from his protected speech (as opposed to his
___
unprotected speech, or his job performance as Superintendent), we
must vacate the grant of summary judgment for the Town and remand
to the district court for further proceedings.
1. Legal Standard and Standard of Review
1. Legal Standard and Standard of Review
_____________________________________
A government employee retains the First Amendment right
to speak out, as a citizen, on matters of public concern, so long
as the employee's speech does not unduly impede the government's
15
interest, as employer, in the efficient performance of the public
service it delivers through its employees. Pickering v. Board of
_________ ________
Educ., 391 U.S. 563, 568 (1968); see also Rankin v. McPherson,
_____ ___ ____ ______ _________
483 U.S. 378 (1987); Connick v. Myers, 461 U.S. 138 (1983);
_______ _____
Brasslett v. Cota, 761 F.2d 827 (1st Cir. 1985). Three tests
_________ ____
determine whether the court is presented with an actionable claim
for the infringement of a public employee's First Amendment
rights.
First, the court must determine, on the basis of "the
_____
content, form, and context of a given statement, as revealed by
the whole record," whether the employee was speaking "as a
citizen upon matters of public concern," or, alternatively, "as
an employee upon matters only of personal interest." Connick,
_______
461 U.S. at 147-48. If an employee's speech "cannot be fairly
characterized as constituting speech on a matter of public
concern," then its First Amendment value is low and "a federal
court is not the appropriate forum in which to review the wisdom
of a personnel decision" arising therefrom. Id. at 146-47.
___
Second, if the employee did speak out on a matter of
______
public concern, the court must balance the strength of the
employee's First Amendment interest, and any parallel public
interest in the information which the employee sought to impart,
against the strength of the countervailing governmental interest
in promoting efficient performance of the public service the
government agency or entity must provide through its employees.
Pickering, 391 U.S. at 568; Brasslett, 761 F.2d at 839. Though
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16
often imprecise,
[t]his balancing is necessary in order to
accommodate the dual role of the public
employer as a provider of public services and
as a government entity operating under the
constraints of the First Amendment. On the
one hand, public employers are employers,
_________
concerned with the efficient function of
their operations; review of every personnel
decision made by a public employer could, in
the long run, hamper the performance of pub-
lic functions. On the other hand, "the
threat of dismissal from public employment is
. . . a potent means of inhibiting speech."
Vigilance is necessary to ensure that public
employers do not use authority over employees
to silence discourse, not because it hampers
public functions but simply because superiors
disagree with the content of employees'
speech.
Rankin, 483 U.S. at 384 (citations omitted; emphasis in origi-
______
nal). As the Connick and Pickering determinations depend on
_______ _________
whether the employee statements "are of a character which the
principles of the First Amendment . . . protect," Connick, 461
_______
U.S. at 150 n.10, these determinations are always subject to de
__
novo review. Id.; see also Rankin, 483 U.S. at 385-86; Brass-
____ ___ ___ ____ ______ ______
lett, 761 F.2d at 835; see generally Bose Corp. v. Consumers
____ ___ _________ __________ _________
Union of United States, Inc., 466 U.S. 485, 499 (1984) ("in cases
____________________________
raising First Amendment issues we have repeatedly held that an
appellate court has an obligation to 'make an independent exami-
nation of the whole record' in order to make sure that 'the
judgment does not constitute a forbidden intrusion on the field
of free speech'") (citations omitted).
Third, and finally, if the court determines that the
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public employee's First Amendment interests in speaking out
17
outweigh a legitimate governmental interest in curbing the
employee speech, the plaintiff-employee must show that the pro-
tected expression was a substantial or motivating factor in the
adverse employment decision; and, if the plaintiff meets this
test, the defendant governmental entity must be afforded an
opportunity to show "by a preponderance of the evidence that [it]
would have reached the same decision . . . even in the absence of
the protected conduct." Mt. Healthy, 429 U.S. at 287; see also
___________ ___ ____
Duffy v. Sarault, 892 F.2d 139 (1st Cir. 1989). This third test
_____ _______
implicates questions of fact; "clear error" review is appropriate
where judgment was entered after a trial on the merits, see
___
Duffy, 892 F.2d at 144-45, whereas plenary review applies at the
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summary judgment stage. See Mesnick, 950 F.2d at 822.
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2. Threshold Inquiry: "Matters of Public Concern"
2. Threshold Inquiry: "Matters of Public Concern"
_____________________________________________
The courts of appeals have adopted various approaches
for determining whether a topic of employee speech is of "public
concern," under the "threshold inquiry" required by Connick, 461
_______
U.S. at 146. See, e.g., D. Gordon Smith, Note, "Beyond Public
___ ____ ______________
Concern: New Free Speech Standards for Public Employees," 57 U.
_________________________________________________________
Chi. L. Rev. 249, 258-61 (1990) (surveying case law). Some
courts have adopted a content-based analysis, focusing exclusive-
ly on "'which information is needed or appropriate to enable the
members of society' to make informed decisions about the opera-
tion of their government," McKinley v. City of Eloy, 705 F.2d
________ _____________
1110, 1113-14 (9th Cir. 1983) (quoting Thornhill v. Alabama, 310
_________ _______
U.S. 88, 102 (1946)), in effect providing per se protection to
___ __
18
public-employee speech on certain topics of "inherent" public
interest, such as official malfeasance or abuse of office. See
___
Koch v. City of Hutchinson, 847 F.2d 1436, 1446 n.17 (10th Cir.)
____ __________________
(en banc), cert. denied, 488 U.S. 909 (1988). Other courts have
_____ ______
adopted an analysis which turns either entirely or in part on the
employee's subjective intent, i.e., on whether the employee's
____
speech "was calculated to disclose misconduct" or to inspire
___ __________
public debate on some issue of significant public interest.
Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988) (emphasis in
_______ _____
original); see also Callaway v. Hafeman, 832 F.2d 414, 417 (7th
___ ____ ________ _______
Cir. 1987) ("while the content of [plaintiff's] communications
touched upon an issue of public concern generally. . . . such
speech stands unprotected from employer scrutiny when uttered in
the pursuit of purely private interests"); Terrell v. University
_______ __________
of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986),
________________________
cert. denied, 479 U.S. 1064 (1987) ("the mere fact that the topic
_____ ______
of the employee's speech was one in which the public might or
would have had a great interest is of little moment"); Linhart v.
_______
Glatfelter, 771 F.2d 1004, 1010 (7th Cir. 1985) (Connick "re-
__________ _______
quires us to look at the point of the speech in question: was it
_____
the employee's point to bring wrongdoing to light? Or to raise
other issues of public concern, because they are of public
concern? Or was the point to further some purely private inter-
est?").4
____________________
4We identify these approaches, somewhat inexactly, as the
"contextual" and "content-based" approaches to Connick's thresh-
_______
old test for determining the level of First Amendment speech
19
As our own case law implicitly recognizes, the circum-
stances of a particular case may govern the appropriate approach
under Connick. Where a public employee speaks out on a topic
_______
which is clearly a legitimate matter of inherent concern to the
________
electorate, the court may eschew further inquiry into the employ-
ee's motives as revealed by the "form and context" of the expres-
sion. See, e.g., Brasslett, 761 F.2d at 844 n.14 (according no
___ ____ _________
apparent consideration to public employee's personal motive,
where fire chief's public commentary on available fire protec-
tion, and on Town Council's actions in dealing with associated
problems, plainly qualified as matters of inherent "public
concern"). On the other hand, public-employee speech on a topic
which would not necessarily qualify, on the basis of its content
__ ___ _____ __ ___ _______
alone, as a matter of inherent public concern (e.g., internal
_____ ____
working conditions, affecting only the speaker and co-workers),
may require a more complete Connick analysis into the form and
_______
context of the public-employee expression, "as revealed by the
whole record," Connick, 461 U.S. at 146, with a view to whether
_______
____________________
protection. Under the "content-based" approach, the objective
content of an employee's statement is determinative, and the
"form and context" of the statement are examined only in close
cases, to determine whether the content of the statement is of
_______
"public concern." Under the "contextual" approach, the three
factors are considered seriatim. A determination that the
________
content of the expression addresses a "matter of public concern,"
_______
while often described as "the greatest single factor in the
Connick inquiry," Breuer v. Hart, 909 F.2d 1035, 1039 (7th Cir
_______ ______ ____
1990) (quoting Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th
____ ________________
Cir. 1988)), does not end the inquiry; in certain circumstances
the employee may still be disciplined if the "form and context"
of the speech indicate that the employee was driven by purely
personal concerns.
20
the community has in fact manifested a legitimate concern in the
__ ____
internal workings of the particular agency or department of
government, and, if so, whether the "form" of the employee's
expression suggests a subjective intent to contribute to any such
public discourse. See, e.g., Alinovi v. Worcester School Commit-
___ ____ _______ ________________________
tee, 777 F.2d 776, 787 (1st Cir. 1985), cert. denied, 479 U.S.
___ _____ ______
816 (1986) (letters of reprimand issued to teacher by school
administration did not implicate an issue of "public concern"
under Connick, despite tangential connection to an incident
_______
implicating the teacher's Fourth Amendment rights; "when [the
teacher] posted the letters . . . she was not concerned with any
_________ ____
possible violation of her Fourth Amendment rights, but rather,
with [a] purely personal issue concerning the lack of action on
the part of the administration regarding her disciplinary prob-
lem") (emphasis added). Since "almost anything that occurs
within a public agency could be of concern to the public,"
_____
Terrell, 792 F.2d at 1362 (emphasis in original), a full-fledged
_______
"form and context" analysis is appropriate in these instances.
"To presume that all matters which transpire within a government
office are of public concern would mean that virtually every
remark and certainly every criticism directed at a public
official would plant the seed of a constitutional case". See
___
Connick, 461 U.S. at 149.5
_______
____________________
5The circumstances presented in Connick itself required both
_______
forms of analysis. There, an assistant district attorney,
opposing her transfer to another department, circulated a ques-
tionnaire "concerning office transfer policy, office morale, the
need for a grievance committee, the level of confidence in super-
21
In our own case, O'Connor's allegations were not
limited to internal personnel procedures, affecting only himself
and other Department employees. Rather, O'Connor's revelations
____________________
visors, and whether employees felt pressured to work in political
campaigns." 461 U.S. at 141. Analyzing the "content, form and
context" of the employee's statements, the Supreme Court noted
that the employee "did not seek to inform the public that the
District Attorney's office was not discharging its governmental
responsibilities . . . [or] seek to bring to light actual or
potential wrongdoing or breach of trust on the part of [public
officials]." Id. at 148. However, it held, that the content of
___ ___ _______ __
one question did touch upon a "matter of interest to the communi-
___ ________ ___ _____ ____ _ ______ __ ________ __ ___ ________
ty," i.e., whether assistant district attorneys were pressured to
__ ____
work in political campaigns. The Court then proceeded to evalu-
ate that question separately, under the second "balancing" step
in the Pickering analysis. See id. at 149-154. The separate
_________ ___ ___
treatment given the one item of "inherent public concern" on the
employee questionnaire is consistent with our exempting such
clear First Amendment speech from the full-scale threshold
inquiry into the employee's motives in speaking, undertaken in
Connick in relation to the other items on the questionnaire. See
_______ ___
Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.) ("[w]ere motivation
_______ _______
rather than content dispositive [in Connick], the Court would
_______
have had no reason to isolate the one question that was of public
concern"), cert. denied, 488 U.S. 899 (1988).
_____ ______
Rankin v. McPherson, supra, is the only other Supreme
______ _________ _____
Court case to consider, in depth, the application of Connick's
_______
threshold test. Rankin concerned a law enforcement employee's
______
private comment to a co-worker, in the aftermath of the assas-
sination attempt against President Reagan: "if they go for him
again, I hope they get him." 483 U.S. at 381. The Court found
that the statement, in context, "plainly dealt with a matter of
__ _______
public concern," insofar as it "came on the heels of a news
bulletin regarding what is certainly a matter of heightened
public attention: an attempt on the life of the President." Id.
__
at 386 (emphasis added). The Court paid little attention to the
"form and context" of McPherson's statement, insofar as those
factors bore on her motives for speaking; indeed, if the Court
_______
had done so, it probably would have found that the statement
(which apparently occurred without premeditation, in a private
conversation between co-workers) was motivated by little or no
civic concern to inform the public on any relevant issue. Rankin
______
suggests that the courts are to proceed to the second-stage
Pickering inquiry whenever public-employee speech, objectively
_________
viewed in the context of a broader public discourse, addresses
(with reasonable specificity) an issue or topic implicating
_____ _____
"core" First Amendment concerns.
22
directly implicated a topic of inherent concern to the community
official misconduct by an incumbent elected official. Given
their direct bearing on Steeves' fitness for elective office, we
think O'Connor's allegations of improper purchases clearly
constituted a matter of legitimate public concern, obviating the
need for a threshold analysis of his dominant motive for speaking
out on these issues.6 Accordingly, we reject the Town's conten-
tions, based on the "form and context" of O'Connor's speech, that
O'Connor's personal motives should result in the denial of First
Amendment protection at the threshold. Cf. Pickering, 391 U.S.
___ _________
at 572 (recognizing that government employees "are, as a class,
the members of a community most likely to have informed and
____________________
6The district court noted that the summary judgment record
included only five Department invoices signed by Steeves during
the entire period in question, representing cumulative personal
purchases amounting to approximately $500, on which a total state
sales tax approximating $20-25 would have been due. Based on
these small sums, and the fact that Steeves repaid the monies
expended by the Department, the district court considered Steev-
es' alleged misconduct de minimis. Given their bearing on
__ _______
Steeves' fitness for elective office, these improper purchases
clearly pertained to a matter of legitimate public interest to
the community. If their infrequency, modest amount, and repay-
ment tempered their seriousness as a reflection upon Steeves'
suitability for elective office, that was a matter for the Nahant
electorate. See, e.g., Patrick v. Miller, 953 F.2d 1240, 1247-48
___ ____ _______ ______
(10th Cir. 1992) (perceived illegalities in City's budgeting
activities constituted topic of "inherent" public concern;
"'[s]peech which discloses any evidence of corruption, impropri-
ety or other malfeasance on the part of city officials, in terms
of content, clearly concerns matter of public import'") (quoting
Conaway v. Smith, 853 F.2d 789, 796) (10th Cir. 1988)); Breuer v.
_______ _____ ______
Hart, 909 F.2d 1035, 1038 (7th Cir. 1990) (County Sheriff's
____
alleged conversion of County property was "plainly of public
concern in its substance"); Brawner v. City of Richardson, 855
_______ ___________________
F.2d 187, 191-92 (5th Cir. 1988) (Police Department's alleged
misconduct in covering up internal investigations was "a matter
of public interest and therefore deserves constitutional protec-
tion").
23
definite opinions" about allocation of funds).
3. The Pickering Scale
3. The Pickering Scale
___________________
As the content of O'Connor's allegations was of inher-
ent "public concern" for First Amendment purposes, we proceed to
the second test. Under Pickering, we are required to balance the
_________
significance of the interests served by the public-employee
speech including the employee's interests in communicating,
and the interests of the community in receiving, information "on
matters of public importance" against the governmental employ-
er's legitimate interests in preventing unnecessary disruptions
and inefficiencies in carrying out its public service mission.
391 U.S. at 568-575.
We note at the outset that O'Connor's motives for
speaking out are properly weighed in the balance under Pickering.
_________
See, e.g., Versarge v. Township of Clinton, 984 F.2d 1359, 1366
___ ____ ________ ___________________
(3d Cir. 1993) (according "little weight," under Pickering, to
_________
plaintiff's "vengeful and obstructionist interests in speaking
out on issue of public concern"). Thus, insofar as self-interest
is found to have motivated public-employee speech, the employee's
expression is entitled to less weight in the Pickering balance
_________
than speech on matters of public concern intended to serve the
public interest. Id. Furthermore, we agree with the district
___
court that O'Connor's motives, prominently including the evident
self-interest in preserving his position as Superintendent, were
less than altruistic.
Nevertheless, the legitimate interest of the Town's
24
electorate in the type of information disclosed by O'Connor
represents a public benefit entitled to great weight in the
Pickering balance. Id. (citing O'Donnell v. Yanchulis, 875 F.2d
_________ ___ _________ _________
1059, 1061 (3d Cir. 1989)) ("On plaintiff's side of the balance,
we must also consider the interests of the public in plaintiff's
speech"). O'Connor's disclosures concerned alleged abuse of
public office on the part of an elected official, a matter
traditionally occupying "the highest rung of the hierarchy of
First Amendment values." Connick, 461 U.S. at 145.7 The strong
_______
public interest in such disclosures supplements O'Connor's rela-
______
tively slight personal interest in speaking out, heavily weight-
________
ing the Pickering scale in favor of First Amendment protection
_________
against retaliation for O'Connor's speech.8
On the other side of the Pickering scale, the Town has
_________
yet to demonstrate its legitimate interest, as employer, in
___________
____________________
7See also, e.g., Vasbinder v. Ambach, 926 F.2d 1333, 1339
___ ____ ____ _________ ______
(2d Cir. 1991) (public employee's Pickering interest is particu-
_________
larly great where speech involves charges of "fraudulent and
corrupt practices" or other "unlawful conduct" by elected offi-
cial); but cf. Breuer, 909 F.2d at 1041 (upholding dismissal of
___ ___ ______
deputy sheriff for "whistleblowing" on corruption by sheriff,
based on county's "particularly urgent need for close teamwork
among those involved in the 'high stakes' field of law enforce-
ment") (citation omitted).
8It is also relevant that O'Connor's factual allegations
about Steeves' purchasing practices are essentially undisputed by
the defendants. We are not faced with a case in which a public
employee has intentionally disseminated false information. Both
sides of the Pickering balance might be significantly affected in
_________
such circumstances. See Brasslett, 761 F.2d at 839 ("an employer
___ _________
has a greater interest in curtailing erroneous statements than
correct ones, and still a greater interest in curtailing deliber-
ate falsehoods . . . . Correspondingly, an employee's interest
in making public statements is heightened according to their
veracity.").
25
curtailing the specific disclosures which O'Connor alleges were
the basis for his termination. Although the Town has shown con-
siderable disruption in the Department operations, and serious
deterioration in the working relations between O'Connor and
Steeves, and their respective factions, it has not yet met its
burden of showing that the disruption was attributable to the
exercise of O'Connor's First Amendment right to speak out on this
subject, so as to warrant discharging him on speech-related
grounds. On the contrary, the disruption which occurred in
Department operations may as readily be attributed to unrelated
factors: for example, to Steeves' allegedly unauthorized inter-
ference in the Department operations. See, e.g., Zamboni, 847
___ ____ _______
F.2d at 79 ("in evaluating the disruption, if any, that resulted
from [plaintiff's] criticisms . . . the district court must
consider whether any unrest was caused directly by [the plain-
tiff's] speech or whether it was exacerbated by defendants'
actions"). Notwithstanding O'Connor's status as a "policymaking
or confidential employee," see Kinsey v. Salado Indep. Sch.
___ ______ ___________________
Dist., 950 F.2d 988, 995 (5th Cir. 1992), whose position required
_____
close working relations with the Board of Selectmen, including
Steeves, we cannot assume, absent some showing by defendants,
that the erosion of their working relationship was due to O'Con-
nor's protected speech. See Brasslett, 761 F.2d at 845-46
___ _________
("defendants must show that . . . [plaintiff's] allegedly pro-
_________ ____
tected activity had a detrimental impact on" working relation-
______ ________
ships) (emphasis added); see also Versarge, 984 F.2d at 1367-68
___ ____ ________
26
(declining to consider disruptive effects of speech that was not
alleged by defendants as grounds for plaintiff's expulsion).
_______
One final point warrants mention. As the district
court properly noted, O'Connor failed on several occasions to
publicize his allegations of Steeves' misconduct directly to the
________
community; instead, he chose to direct his disclosures to the
Board of Selectmen.9 Nevertheless, the decision to disclose his
allegations to the Board, rather than the community at large, did
not eliminate O'Connor's First Amendment interest in speaking
out. See, e.g., Givhan v. Western Line Consol. Sch. Dist., 439
___ ____ ______ _______________________________
U.S. 410, 415-16 (1979) (employee retains personal First Amend-
ment right to comment on issues of public concern, even if
comments are made in private; "[n]either the Amendment itself nor
our decisions indicate that [the right to speak out is] lost to
the public employee who arranges to communicate privately with
his employer rather than to spread his views before the public");
see also Rankin, 483 U.S. at 378 (private comment to co-worker
___ ____ ______
held protected under Pickering balance). Moreover, in addition
_________
to controlling O'Connor's employment, the Board of Selectmen is
the Town's highest elective body, with representative responsi-
bility for acting in the best interests of the Town and its
citizenry. Hence, O'Connor's decision to address the Board,
____________________
9Although O'Connor raised allegations against Steeves' at
several "public meetings" prior to July 1990, the district court
noted that few, if any, members of the public attended these
meetings. O'Connor also published several internal memoranda, on
Department stationery, discussing misuse of Department accounts,
but the memoranda did not mention Steeves.
27
rather than the community at large, was no mere private communi-
cation, nor did it in any sense extinguish the inherent public
interest in his disclosures of Steeves' alleged misconduct.10
Everything considered, and viewing the record in the light most
favorable to O'Connor, we are unable to conclude that the Town's
interest in suppressing O'Connor's speech outweighed the impor-
tance of the legitimate public interest in O'Connor's disclo-
sures.11
____________________
10Indeed, a public employee, whose disclosures have the
potential to disrupt the employing agency or department, may act
responsibly by taking steps to minimize disruption by limiting
dissemination to the public authorities most directly concerned.
See Rankin, 483 U.S. at 389 (noting that employee "had [not] dis-
___ ______
credited the office by making her statement in public," where
offensive remark "was evidently made in a private conversation
with another employee"); Hubbard v. E.P.A., 949 F.2d 453, 458
_______ ______
(D.C. Cir. 1991) ("This case does not present a situation in
which a government employee has jeopardized an employer's opera-
tion by calling a press conference or indiscriminately leaking
sensitive information"); Breuer, 909 F.2d at 1042 (finding
______
employee's statements on official corruption unprotected, despite
the fact that the employee "may have genuinely hoped to force the
sheriff to make changes for the ultimate benefit of the Depart-
ment," because the employee's "method . . . was to immerse
himself in an intra-departmental contest with the sheriff");
Conaway, 853 F.2d at 798 ("[t]he relatively low key context in
_______
which [the public employee] voiced his complaints further per-
suades us that the Pickering balance tilts in his favor").
_________
11As the district court determined, however, O'Connor's
claims against the Selectmen must be dismissed on the ground of
qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818
______ __________
(1982). "Because Pickering's constitutional rule turns upon a
_________
fact-intensive balancing test, it can rarely be considered
'clearly established' for purposes of the Harlow qualified
______
immunity standard," at least where substantial disruption has
been shown to exist as a basis for the discharge. Bartlett v.
________
Fisher, 972 F.2d 911, 916-17 (8th Cir. 1992) (collecting cases).
______
See also Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992)
___ ____ _______ ______
("if the existence of a right or the degree of protection it
warrants in a particular context is subject to a balancing test,
the right can rarely be considered 'clearly established,' at
least in the absence of closely corresponding factual or legal
28
5. Causation
5. Causation
_________
The Town may have reserved its strongest defense for
the next round. On the record before us, O'Connor would have
grave difficulty demonstrating that the protected speech was a
"substantial or motivating" factor in his discharge by the Town.
Mt. Healthy, 429 U.S. at 27412. O'Connor's alleged lack of
____________
qualifications for the Superintendent's position, combined with
the public concern over the Town water crisis, may well have
provided neutral, non-speech related reasons for Edwards' and
Steeves' votes against O'Connor's retention. Unless O'Connor can
present evidence demonstrating that the discharge was motivated
by his protected speech, the Town may yet be entitled to judgment
____________________
precedent").
12The purpose of the Mt. Healthy test is to ensure that the
___________
employee is not placed
in a better position as a result of the exer-
cise of constitutionally protected conduct
than he would have occupied had he done
nothing . . . . A borderline or marginal can-
didate should not have the employment ques-
tion resolved against him because of consti-
tutionally protected conduct. But that same
candidate ought not to be able, by engaging
in such conduct, to prevent his employer from
assessing his performance record and reaching
a decision not to rehire on the basis of that
record, simply because the protected conduct
makes the employer more certain of the cor-
rectness of its decision.
429 U.S. at 285-86. Here, O'Connor's last-minute public revela-
tion of Steeves' purchasing practices, at the July 10 Board
meeting, suggests the precise situation which Mt. Healthy sought
___________
to avoid: an effort by O'Connor (when his discharge appeared
inevitable) to place himself "in a better position" to raise a
later constitutional challenge to his discharge.
29
under the Mt. Healthy test. We are not in a position to make
___________
this determination, however, as the Town assumed, for summary
judgment purposes, a causal link between the protected speech and
O'Connor's subsequent discharge.
III
III
CONCLUSION
CONCLUSION
__________
As political affiliation was an appropriate qualifi-
cation for the Superintendent position, we affirm the grant of
summary judgment for the Town on O'Connor's political discharge
claim. The judgment dismissing all claims against the individual
defendants on the grounds of qualified immunity is likewise
affirmed. Finally, we vacate the summary judgment dismissing
O'Connor's "whistleblowing" claim against the Town, and remand
for further proceedings consistent with this opinion.
The judgment of the district court is affirmed in part,
The judgment of the district court is affirmed in part,
_______________________________________________________
vacated in part, and the case is remanded for further proceedings
vacated in part, and the case is remanded for further proceedings
_________________________________________________________________
consistent herewith. Costs are awarded to the individual defen-
consistent herewith. Costs are awarded to the individual defen-
___________________ ___________________________________________
dants. The appellee Town and appellant O'Connor shall bear their
dants. The appellee Town and appellant O'Connor shall bear their
_____ _________________________________________________________
own costs.
own costs.
_________
30