Rosenberg v. City of Everett

United States Court of Appeals
For the First Circuit

No. 02-1542

STEVEN ROSENBERG,

Plaintiff, Appellant,

v.

CITY OF EVERETT and DAVID RAGUCCI,
in his official capacity as Mayor of the
City of Everett and individually,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Shannon Liss-Riordan, with whom Harold L. Lichten and Pyle,
Rome, Lichten & Ehrenberg, P.C. were on brief, for appellant.
Alan D. Rose, with whom Alan D. Rose, Jr. and Rose &
Associates were on brief, for appellees.

May 1, 2003
 TORRUELLA, Circuit Judge. In January 1998, plaintiff-

appellant Steven Rosenberg was terminated from his position as

Director1 of Everett Community Television ("ECTV") after more than

eleven years at the station. Rosenberg believes he was fired

because of his handling of station programs concerning the mayoral

election of 1997. He brought suit against defendants-appellees

City of Everett and Mayor David Ragucci, claiming that Rosenberg's

firing was in breach of public policy and in violation of the First

Amendment's prohibition against political discrimination. The

district court dismissed Rosenberg's public policy claim and later

granted appellees' motion for summary judgment on his political

discrimination claim. After careful review, we affirm.

I. Facts

ECTV, which produces programming for three local cable

channels, is funded entirely by Time Warner Cable Company; none of

its budget comes from City funds. The station is administered

through City government. Rosenberg began working for ECTV in 1986

and consistently earned high reviews. At the time of his firing,

he oversaw and directed public access cable programming in Everett

and was responsible for the daily administrative, technical, and

programming operations of ECTV.

1
Rosenberg's position was also referred to as "Cable Project
Manager," "Cable Manager," and "Executive Director."

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 Throughout Rosenberg's employment, he reported directly

to Mayor John McCarthy and worked with the Mayor on a daily basis.

Among other duties as Director of ECTV, Rosenberg produced

candidate forums and election coverage. Prior to the 1997

elections, Paul Schlosberg, an independent producer in Everett,

offered to organize a candidates’ forum entitled "Decision '97" and

Rosenberg agreed to assist with its production and broadcast. By

letter dated September 23, 1997, Schlosberg invited each candidate

to the ECTV studio to record a videotape before October 3, 1997.

Those candidates received minor assistance in producing the tape

from the ECTV staff. Alternatively, candidates could submit their

own videotape before the deadline. The station planned to begin

airing candidates' segments on or around October 16, 1997.

Mayoral candidate Ragucci, a City Alderman, submitted his

tape before the deadline. Mayor McCarthy requested an extension

because his schedule prevented him from preparing the video prior

to October 3, 1997. Rosenberg granted an extension to McCarthy (as

well as to all other candidates who requested one), and McCarthy

recorded his video at ECTV on or about October 9, 1997. This was

before any candidate's segment had appeared on television.

Ragucci was furious with Rosenberg for permitting

McCarthy to submit his videotape after October 3. Ragucci accused

Rosenberg of applying two sets of rules -- one to Mayor McCarthy

and one to the rest of the candidates. Rosenberg attempted to

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defend his actions by telling Ragucci that he and the television

channel were apolitical. At the next Board of Aldermen meeting,

which was broadcast on ECTV, the Board reprimanded Rosenberg for

his handling of "Decision '97."

On November 4, 1997, Ragucci was elected Mayor of the

City of Everett. On December 12, 1997, Mayor-elect Ragucci

terminated Rosenberg, effective January 6, 1998. Ragucci did not

identify a reason for the termination. Schlosberg applied for the

Director's position but was given a lower position because, he was

told, Ragucci did not perceive that Schlosberg had shown enough

support for his campaign before the election. Rosenberg's position

was filled by Geralyn Reardon, who had served as Ragucci's campaign

communications director. Ragucci removed a number of other long-

term employees in Everett and replaced them with his political

supporters and relatives.

On August 12, 1999, Rosenberg initiated the current

litigation. His public policy claim was dismissed on April 3,

2000, and summary judgment was granted in favor of the defendants

on April 22, 2002. This timely appeal followed.

II. Discussion

A. Public Policy

Rosenberg challenges the district court's dismissal of

his public policy claim. We review the dismissal de novo,

accepting all well-pleaded allegations as true and affording

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Rosenberg reasonable inferences in his favor. Cooperman v.

Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Dismissal is

proper if the complaint presents no set of facts justifying relief.

Fed. R. Civ. P. 12(b)(6) (2003).

Rosenberg was an at will employee. As such, he was

subject to termination for any reason or for no reason at all.

Upton v. JWP Businessland, 425 Mass. 756, 757 (1997). There is an

exception to this general rule however -- an employee may not be

"terminated for a reason that violates a clearly established public

policy." Id. Public policy prevents terminating an employee for

doing what the law requires. Id.

Rosenberg claims that McCarthy's request for an extension

was simply a request for an equal opportunity that Rosenberg was

legally obligated to permit. See 47 U.S.C. § 315 (2003). He

argues that because he was fired for granting this extension, his

termination is in violation of public policy. Appellees respond

that Rosenberg was not required to grant McCarthy an extension and

that doing so arguably violated the law that prohibits

discriminating against candidates. See 47 C.F.R. 76.205(e) ("[N]o

system shall . . . make or give any preference to any candidate for

public office . . . .").

Federal Communications Commission ("FCC") regulations

provide: "If any licensee shall permit any person who is a legally

qualified candidate for any public office to use a broadcasting

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station, he shall afford equal opportunities to all other such

candidates for that office in the use of such broadcasting station

. . . ."2 47 U.S.C. § 315(a). As used in the statute, "licensee"

refers, inter alia, to the operator of a community television

station, in this case Rosenberg. Id. at § 315(c). This equal time

doctrine has been described as a "contingent right of access"; it

does not require a licensee to offer time to any candidate, but

once a candidate is permitted to use the station, the station must

provide other candidates "with equal time at an equal rate, at a

comparable hour of the day, and with a similar format for

presentation." Kennedy for President Comm. v. FCC, 636 F.2d 432,

437 n.33, 438 (D.C. Cir. 1980). The purpose of the equal time

doctrine is to facilitate political debate by qualified candidates.

Farmers Educational & Cooperative Unit v. WDAY, Inc., 360 U.S. 525,

529 (1959). A candidate seeking equal opportunity must request it

no more than seven days after another candidate's broadcast. 47

C.F.R. § 76.205(c) (2003). Candidates who feel they have not

received equal time may file a complaint with the FCC.

The regulations seem to assume a situation whereby one

candidate purchases airtime or is offered free airtime, and an

opposing candidate seeks (within seven days of the broadcast) to

purchase or secure without charge the same amount of airtime. The

2
A similar state law is guided by the FCC rules and regulations.
See Mass. Gen. Laws ch. 166A, § 5(j) (2003).

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laws forbid a licensee from influencing an election by only

permitting one viewpoint to be heard. Here, however, ECTV

established a forum and invited all candidates to participate. All

candidates were offered use of the station to facilitate taping,

and a deadline was chosen to allow ECTV time to prepare the

documents for airing.

ECTV complied with the statute by offering equal time to

all candidates -- every candidate had the same opportunity to film

and submit a tape. The station was legally obligated to honor that

equal opportunity by accepting all tapes submitted before the

deadline. But a station is not prohibited from establishing a

reasonable, neutral deadline, as ECTV did here. In opening its

station to all candidates, ECTV guaranteed that the public had

access to all candidate’s views, provided that the candidate met

the clearly established deadline.

Rosenberg’s decision to offer McCarthy an extension did

not prejudice Ragucci, and was done in good faith.3 However,

neither appellant’s brief nor our own research reveal any case law

suggesting that the extension was required by law. Thus, even if

3
In a subsequent broadcast that had been planned as an
opportunity for mayoral candidates to speak to the community in an
uninterrupted forum, Rosenberg granted Ragucci's request to submit
a taped thirty-minute presentation, rather than tape an unedited
segment at the station. This belies appellees' claim that
Rosenberg was favoring McCarthy over Ragucci.

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Rosenberg was fired because of this extension, he is not protected

by the public policy exception to at will employment.

B. Political Discrimination

Rosenberg brought suit for damages under 42 U.S.C. § 1983

alleging that his First Amendment rights were violated when he was

terminated due to his perceived lack of political loyalty for the

incoming mayor. The district court granted summary judgment in

favor of the City and Mayor Ragucci on this claim of political

discrimination.

Summary judgment is proper if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(c) (2003). We

review the summary judgment decision de novo, construing the record

in the light most favorable to Rosenberg and resolving all

reasonable inferences in his favor. Rodríguez v. Smithkline

Beecham, 224 F.3d 1, 5 (1st Cir. 2000). We may affirm the decision

on any grounds revealed by the record. Id.

There are separate standards for imposing liability

against government officials and the municipality. Under the

doctrine of qualified immunity, "[g]overnment officials are not

liable for monetary damages in § 1983 suits unless their actions

violate 'clearly established constitutional or statutory rights of

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which a reasonable person would have known.'" Valiente v. Rivera,

966 F.2d 21, 23 (1st Cir. 1992) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)). In contrast, the City can be liable only if

(1) a constitutional harm occurred, and (2) the harm was caused by

the "'execution of a government's policy or custom.'" De Feliciano

v. De Jesús, 873 F.3d 447, 449 (1st Cir. 1989) (quoting Monell v.

NY City Dept. of Social Servs., 436 U.S. 658, 694 (1978)). As we

determine below, there was no constitutional harm in this case, and

therefore, there can be no liability.

Although appellees have offered other reasons for

Rosenberg’s termination, we assume for this part that Rosenberg has

shown that Ragucci terminated him because of a perceived lack of

political support. In general, a public employee4 may not be fired

solely because of his political affiliation. Branti v. Finkel, 445

U.S. 507, 517 (1980); Elrod v. Burns, 427 U.S. 347, 373 (1976).

Dismissal based on political patronage is permissible, however, if

"the hiring authority can demonstrate that party affiliation is an

appropriate requirement for the effective performance of the public

office involved." Jiménez Fuentes v. Torres Gaztambide, 807 F.2d

236, 240 (1st Cir. 1986) (en banc) (quoting Branti, 445 U.S. at

518). Political discharge is permitted to give a new

administration an opportunity to fulfill expectations by

4
Although ECTV is funded by a private cable company, the parties
agree that Rosenberg, who was hired and fired by the City, is a
City employee for purposes of this case.

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surrounding itself with "agency leaders and top subordinates

responsive to the elected officials' goals." Flynn v. City of

Boston, 140 F.3d 42, 46 (1st Cir. 1998). Whether or not a position

is subject to political discharge is a legal question for the

courts. Id. at 44. Party affiliation is an appropriate

requirement for a public position if (1) "the discharging agency's

functions entail 'decisionmaking on issues where there is room for

political disagreement on goals or their implementation,'" and (2)

"'the particular responsibilities of the plaintiff's position

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 tenure.'" Roldán-Plumey v. Cerezo-Suárez, 115 F.3d 58,

61-62 (1st Cir. 1997) (quoting Jiménez Fuentes, 807 F.2d at 241-

42).

First, we find that there was room for political

disagreement regarding decisions made by ECTV. Local governments

are held accountable for the services they provide, and ECTV

unquestionably provided an important community service.

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. . . . [T]here is clearly
room for principled disagreement in the
development and implementation of plans to
achieve that goal.

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O'Connor, 994 F.2d at 910 (quoting Tomczak v. City of Chicago, 765

F.2d 622, 641 (7th Cir. 1985)). ECTV addressed customer concerns

regarding cable television, and it controlled programming on three

stations. The programs often covered the local government and

issues of importance to the community. The station unquestionably

"handled matter potentially subject to partisan political

differences." Id. (quotation omitted).

Second, we find that the Director's position at ECTV

resembles those positions for which political affiliation is an

appropriate requirement. In determining the second factor, we

consider "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."

O'Connor v. Steeves, 994 F.2d 905, 910 (1st Cir. 1993) (quotation

omitted). Among other duties, the Director of ECTV is responsible

for negotiating and overseeing the contract with the cable company;

working as a liaison between the cable company and the City in

settling customer disputes; maintaining open dialogue with the

community; and overseeing the budget, programming, and staffing of

the station. The Director establishes and implements all policy

for the station and exercises control over all ECTV employees.

Although Rosenberg claims that he and ECTV were apolitical, this

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does not immunize him from political firing because he was still

involved in policymaking. See Flynn, 140 F.3d at 46.

The Director reports directly to the Mayor, and speaks on

the City's behalf in negotiations with the cable company.

Rosenberg's "responsibilities meant that policy disagreements with

his politically appointed supervisor could lead to less effective

implementation of policy goals." Flynn, 140 F.3d at 45. The

functions of the Director of ECTV thus include many of the factors

present in other positions for which we found political patronage

to be a valid requirement. See, e.g., Duriex-Gauthier v. López-

Nieves, 274 F.3d 4, 10 (1st Cir. 2001) (political dismissal upheld

where employee was "responsible for the planning and supervision of

all the personnel activities," analyzing organizational problems

and acting as a liaison with a higher office); Jiménez Fuentes,

807 F.2d at 243-46 (finding position to be one of policymaking

where employee "proposes, establishes, and implements public

policy, is privy to confidential information, and acts as a

spokesperson for the agency"); see also Flynn, 140 F.3d at 45

(noting that dismissal on political ground has been upheld in this

circuit "where the plaintiff merely represented the agency's policy

positions to other entities or to the public").

Rosenberg mounts a slightly different First Amendment

argument, asserting not that he should be free to express his

political beliefs, but that the public interest is served by media

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independence. Rosenberg asserts that his duties are more aptly

described as producing independent and unbiased coverage of City

news and events, and that the public benefits from a public access

cable station that is not beholden to City government. We refuse

to take such a narrow view of Rosenberg's job duties. A court

considers the duties inherent to the position in question. Roldán-

Plumey, 115 F.3d at 62. The job description provided by appellees,

as well as Rosenberg's deposition testimony, reveal that the

Director is responsible for many policy-related duties and is not

simply charged with creating unbiased programming.

Rosenberg relies on Gierbolini Colón v. Aponte Roque, 666

F. Supp. 334 (D.P.R. 1987), aff'd, 848 F.2d 331 (1st Cir. 1988), to

support his argument that the First Amendment does not permit

political loyalty to be a job requirement for the head of a

government-run media broadcasting station. Although the district

court in Gierbolini Colón stated that "[d]emocracy requires a

robust and wide open discussion of all positions on the great

issues of our day, and it is too important a task to let the

government and the politicians who run it decide how and when those

discussions may be heard, all at taxpayers' expense," 666 F. Supp.

at 339, we affirmed the case on different grounds, and did not

address the issue of whether political affiliation was an

appropriate qualification for the position of radio station

Director. Gierbolini Colón, 848 F.2d at 333 n.3. Rosenberg's case

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is critically different because the Director's position in

Gierbolini Colón was a protected civil service position under the

laws of Puerto Rico, terminable only for cause. Id. ("Puerto Rico

itself, therefore, does not treat the position as one where a

particular administration is entitled to insist on appointing

someone with whom it has special affinity."). Here, Rosenberg's

position was not protected by the legislature, so Gierbolini Colón

is inapposite.

When we "weigh all relevant factors and make a common

sense judgment in light of the fundamental purpose to be served,"

we find that Rosenberg's position as Director of ECTV was one for

which political affiliation is an appropriate requirement for

effective performance. Jiménez Fuentes, 807 F.2d at 242. As such,

Rosenberg's termination by the incoming mayor was permissible.

Because there was no violation of Rosenberg's constitutional

rights, neither Ragucci nor the City is liable under the First

Amendment.

III. Conclusion

The decision of the district court is affirmed.

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