Foote v. Town of Bedford

United States Court of Appeals
For the First Circuit

No. 10-2094

WILLIAM FOOTE,

Plaintiff, Appellant,

v.

TOWN OF BEDFORD ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Mark A. Stull for appellant.
Charles P. Bauer, with whom Beth A. Deragon and Gallagher,
Callahan & Gartrell, P.C. were on brief, for appellee Town of
Bedford.
Brian J.S. Cullen, with whom CullenCollimore PLLC was on
brief, for individual appellees.

April 21, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. A town council refused to

reappoint the plaintiff to an unpaid advisory commission after he

publicly criticized certain of the council's policies. The

plaintiff sued, but the district court jettisoned his case at the

summary judgment stage. Foote v. Town of Bedford, No. 1:09-cv-171,

2010 WL 3238315 (D.N.H. Aug. 13, 2010). The plaintiff's appeal

presents a nuanced First Amendment question about the relationship

between policymakers and policy-related speech in the public

sector. After careful consideration, we conclude that the refused

reappointment, though premised on a lawful exercise of the

plaintiff's right to free speech, did not transgress the First

Amendment. Consequently, we affirm the judgment below.

I. BACKGROUND

We draw the facts from the summary judgment record and

rehearse them in the light most favorable to the nonmovant (here,

the plaintiff). Galloza v. Foy, 389 F.3d 26, 28 (1st Cir. 2004).

The organic governing document of Bedford, New Hampshire

(the Town), is the town charter, which vests primary responsibility

for the administration of municipal affairs in a seven-member town

council (the Council). The charter imbues the Council with

authority to appoint the members of municipal boards and

commissions, including the Bedford Recreation Commission (the

Commission). The Commission's bailiwick is to propound

recommendations to the Council and the Town Manager about "the

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acquisition, holding, and disposition" of recreational facilities,

the staffing of those facilities, and the "rules and regulations"

for their operation. Bedford, N.H., Charter art. 1-11-1(c)(2).

The Commission holds regular meetings that are open to

the public. It is composed of five members, all of whom serve

without compensation. They are appointed by the Council, typically

for staggered three-year terms (although some appointments are for

shorter periods, say, if a commissioner dies or resigns mid-term).

On May 11, 2005, the Council appointed plaintiff-

appellant William Foote to fill a vacancy in the Commission's

ranks. Upon completing the unexpired portion of that term, he was

reappointed for three years. For aught that appears, his service

was exemplary.

In January of 2009, the plaintiff received a letter

reminding him that his term would expire in March and inquiring

about whether he wished to continue. The letter made pellucid that

reappointment would be in the Council's sole discretion. The

plaintiff replied that he would be pleased to return to the

Commission.

On March 6, the plaintiff attended a meeting of a

committee formed to assist in developing a community park project

denominated as Bedford Village Common (BVC). At the meeting, he

voiced opposition to the Council's plan to revise certain aspects

of the proposed project and (over the Council's objections)

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advocated the use of impact fees as a funding mechanism to assure

financial viability. In a particularly pointed exchange, he

accused the Council of "trying to kill the project with a thousand

paper cuts."

A municipal election took place on March 10. The

plaintiff lost a bid for a seat on the school board. In defeat, he

warned that he would be watching how the school board handled its

budget.

With the election in his rear-view mirror, the plaintiff

continued to press his candidacy for reappointment to the

Commission. To that end, he met with members of the newly

constituted Council. At a meeting held on March 16, the Council,

voting four to three, proposed filling the two vacancies on the

Commission with other aspirants. In a later vote, the Council

named those aspirants to the Commission.

Asserting that his vocal criticism in connection with the

BVC project led to this rebuff, the plaintiff sued the Town and

four councillors who had voted to deny him reappointment (William

Dermody, Michael Izbicki, Paul F. Roy, Sr., and Robert Young). He

brought his suit in a New Hampshire state court, alleging a First

Amendment claim under 42 U.S.C. § 1983 and three supplemental

state-law claims. The defendants removed the case to federal

district court, see 28 U.S.C. §§ 1331, 1441(b), 1446, and in due

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season sought summary judgment, see Fed. R. Civ. P. 56. The

plaintiff opposed summary judgment.

The district court entered summary judgment on the

section 1983 claim and remanded the remaining claims to state

court. Foote, 2010 WL 3238315, at *4-5. It reasoned that the

defendants' "strong interest" in appointing like-minded people to

the Commission outweighed the plaintiff's First Amendment rights.

Id. at *4. This timely appeal followed.

II. DISCUSSION

We divide our substantive discussion into four segments.

A. Standard of Review.

We review the entry of summary judgment de novo. Houlton

Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.

1999). In performing this tamisage, we scrutinize the facts in the

light most agreeable to the nonmovant, ceding all reasonable

inferences therefrom in his favor. Cox v. Hainey, 391 F.3d 25, 29

(1st Cir. 2004). Summary judgment is appropriate only if the

record, viewed in the required light, reveals no genuine issue of

material fact and demonstrates that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56. Withal, we are

not married to the trial court's rationale but may uphold its

ruling on any ground made manifest by the record. Houlton

Citizens' Coal., 175 F.3d at 184; Garside v. Osco Drug, Inc., 895

F.2d 46, 48-49 (1st Cir. 1990).

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 B. The Decisional Framework.

The plaintiff's case stands or falls on his claim that

the individual defendants impermissibly refused to reappoint him to

the Commission because of his public opposition to, and criticism

of, certain municipal policies. For summary judgment purposes, the

district court assumed that this reason underpinned his failed bid

for reappointment, and so do we. This assumption is important

because "the First Amendment protects a public employee's right, in

certain circumstances, to speak as a citizen addressing matters of

public concern."1 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).

As this case illustrates, that right is not absolute.

When speech by a public employee is involved, courts

typically choreograph a three-step chaconne. The first step is to

determine whether the employee spoke as a citizen on a matter of

public concern. Id. at 415-16. The second step is to balance the

employee's First Amendment interests against the interests of the

government, as an employer, in providing effective and efficient

services. Waters v. Churchill, 511 U.S. 661, 668 (1994). At the

third and final step, the employee must "show that the protected

expression was a substantial or motivating factor in the adverse

1
Of course, the plaintiff was an unpaid member of an advisory
board rather than a full-fledged employee, and he was denied
reappointment rather than discharged. We explain infra why we
nonetheless consider the dismissed-employee analogy apt.

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employment decision." Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.

2007).

For present purposes, the defendants do not dispute that

the plaintiff spoke out as a citizen and that his public commentary

related to matters of community concern. Thus, his speech triggers

First Amendment analysis. See Connick v. Myers, 461 U.S. 138, 146

(1983). The third step here is a foregone conclusion; we already

have noted our assumption that the commentary was a substantial

cause of the Council's refusal to reappoint the plaintiff to a new

term on the Commission. It necessarily follows that this appeal

hinges on the second step in the chaconne: the "balance between the

interests of the [plaintiff], as a citizen, in commenting upon

matters of public concern and the interest of the [government], as

an employer, in promoting the efficiency of the public services it

performs through its employees." Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968).

The Pickering balancing test is heavily dependent on

context, and the Supreme Court has established a corollary to this

test with respect to policymaking employees. The seminal case is

Elrod v. Burns, 427 U.S. 347 (1976), in which the Court held that

a government employer cannot discharge an employee merely because

he is not affiliated with a particular political party. Id. at 373

(plurality op.). But the Court noted an exception: a government

employer can terminate a policymaking employee based on party

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affiliation. Id. at 367. "This exception helps to ensure that

elected representatives will not be hamstrung in endeavoring to

carry out the voters' mandate." Galloza, 389 F.3d at 28.

The Court later broadened the exception to include any

employee for whom "party affiliation is an appropriate requirement

for the effective performance of the public office involved."

Branti v. Finkel, 445 U.S. 507, 518 (1980). Thus, when a

government employer takes an adverse employment action against such

a policymaking employee based on the latter's political

affiliation, it has "demonstrate[d] a compelling interest in

infringing First Amendment rights." Rutan v. Repub. Party of Ill.,

497 U.S. 62, 71 n.5 (1990).

The Supreme Court has not squarely addressed the question

of whether, or how, the Elrod/Branti exception applies to a

policymaking employee's First Amendment claim premised on speech

rather than political affiliation. Nevertheless, a number of

courts of appeals have concluded that the principles undergirding

the Elrod/Branti exception provide roughly comparable shelter for

a government employer where a policymaker is cashiered for policy-

related speech. See, e.g., Rose v. Stephens, 291 F.3d 917, 921

(6th Cir. 2002); Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir.

1995); Hall v. Ford, 856 F.2d 255, 263 (D.C. Cir. 1988). These

courts sensibly "recognize[] the inherent inconsistency in a rule

that protects a policymaking employee who overtly expresses his

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disloyalty while denying that same protection to one who merely

belongs to a different political party." Rose, 291 F.3d at 922;

accord Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964,

971-72 (7th Cir. 2001). Although acknowledging that the Pickering

balance must still be struck, these courts employ Elrod/Branti

principles to inform that exercise. See Vargas-Harrison, 272 F.3d

at 971. In public employee/public speech cases involving

policymakers, those principles ordinarily will tip the balance in

favor of the government as a matter of law.2 See Rose, 291 F.3d at

922; Vargas-Harrison, 272 F.3d at 971.

The key precedent in this circuit fits tongue and groove

with this case law. See Flynn v. City of Boston, 140 F.3d 42, 47

(1st Cir. 1998). That decision involved a challenge to the

dismissal of two policymaking employees on both free speech and

free association grounds. In ruling for the employer, we wrote:

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.

2
One circuit has gone even further, ruling that the
Elrod/Branti exception for policymakers replaces Pickering in
policymaker cases involving policy-related speech. See Fazio v.
City and Cnty. of San Francisco, 125 F.3d 1328, 1332 (9th Cir.
1997). Under that view, a determination that the employee is a
policymaker "dispos[es] of any First Amendment retaliation claim."
Biggs v. Best, Best & Krieger, 189 F.3d 989, 994-95 (9th Cir.
1999). We hesitate to go so far.

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Id. "Precisely because [the plaintiffs'] speech did bear on the

job and on their working relationship," the employer "was permitted

to conclude reasonably that she did not have the necessary trust

and confidence to retain them." Id. (internal quotation marks

omitted).

We think that this approach follows logically from the

Supreme Court's repeated admonition in the political affiliation

cases that the government must be allowed to accomplish its policy

objectives through loyal, cooperative deputies whom the public will

perceive as sharing the administration's goals. See Rutan, 497

U.S. at 74; Rankin v. McPherson, 483 U.S. 378, 388 (1987). In the

political affiliation cases, the Court made a "[c]ategorical

judgment[] based on experience and common sense" that an "elected

official is entitled to insist on the loyalty of his policymaking

subordinates." Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir. 1993).

The same commonsense tenets are in play when a policymaker, by

espousing contrary views, openly undermines the appointing

authority's interest in ensuring that its policies will be

implemented. See Vargas-Harrison, 272 F.3d at 971.

"[D]isagreement between the employer and the policymaking employee

over job-related policy issues causes the same failure of loyalty

and shared political mission between superior and subordinate as

inconsistent political affiliation or viewpoint." Bonds v.

Milwaukee Cnty., 207 F.3d 969, 978 (7th Cir. 2000).

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 We add that transplantation of Elrod/Branti principles to

speech cases is consistent with Pickering's goal of balancing the

government's interest in effective governance with the employee's

right to speak out on matters of public concern. See Pickering,

391 U.S. at 568. The Pickering Court recognized the "significantly

different considerations" that attend the dismissal of an employee

in circumstances in which loyalty is essential. Id. at 570 n.3;

see Rankin, 483 U.S. at 388. In a case involving policy-related

speech, like this one, those considerations ought to weigh heavily

in the Pickering balance.3

What we have said to this point dictates the decisional

framework that applies here. The Elrod/Branti line of cases must

inform the Pickering balance whenever a policymaking employee is

dismissed for speech elucidating his views on job-related public

policy.

C. Distinguishing Characteristics.

Thus far, our analysis has focused on the First Amendment

rights of policymakers ousted from public employment due to

3
We recognize that some courts have thus far confined the
application of Elrod and Branti to cases involving political
affiliation. See, e.g., Hinshaw v. Smith, 436 F.3d 997, 1006 (8th
Cir. 2006); Curinga v. City of Clairton, 357 F.3d 305, 314 (3d Cir.
2004); Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999). But the
distinction, if one exists, is a matter of degree; those courts
freely acknowledge that when the affected employee holds a
policymaking position, the government's interest weighs quite
heavily in the Pickering balance. See Hinshaw, 436 F.3d at 1007;
McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997).

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political affiliation and/or speech. The plaintiff does not fit

that mold precisely. For one thing, he was not a government

employee but, rather, a volunteer. For another thing, he was not

fired but, rather, denied reappointment. In the circumstances of

this case, however, neither of those distinctions inhibits the

applicability of either Pickering or Elrod/Branti principles. We

explain briefly.

Although some courts have ruled that volunteers hold

their unpaid government positions in the unfettered discretion of

the appointing authority, see, e.g., Griffith v. Lanier, 521 F.3d

398, 404 (D.C. Cir. 2008); Versarge v. Twp. of Clinton, 984 F.2d

1359, 1370 (3d Cir. 1993), we need not solve that riddle. For

present purposes, it is enough to say that the government's

interest in ensuring that its policymakers sing from the same sheet

music applies equally to policymakers who are hired hands and

policymakers who are unpaid advisors.

By like token, the fact that the plaintiff was denied

reappointment, rather than dismissed, does not alter the relevant

calculus. See Barton v. Clancy, 632 F.3d 9, 26 (1st Cir. 2011);

Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993). Where, as here,

the adverse action involves the denial of an appointment to an

unpaid advisory post that deals with policy matters, the

government's interest in effective and efficient operation is on a

par with its interest when the action involves the removal of an

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employee from a paid policymaking position. See Barton, 632 F.3d

at 26.

D. The Merits.

Having determined that the principles underpinning the

Elrod/Branti exception are transferable to public employee/public

speech cases, we turn to whether the position that the plaintiff

sought was policymaking in nature and, if so, whether the speech

that prompted the denial of reappointment was policy related. See

Rose, 291 F.3d at 924; Warzon, 60 F.3d at 1239. These are

quintessentially legal questions. See Flynn, 140 F.3d at 44.

This inquiry is both position-specific and speech-

specific. See Bonds, 207 F.3d at 977-78; see also Galloza, 389

F.3d at 29. First, we examine position-specific features starting

with a "high-level glimpse" at whether the particular position

deals with matters that are potentially subject to differences of

opinion on policy grounds. Galloza, 389 F.3d at 29. This

assessment encompasses the extent to which the position has the

capacity to "influence[] the resolution of such matters." Mendez-

Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir. 1987).

We need not tarry. The Commission is obviously a

policymaking body. Its principal function is to advise the

Council, which is the Town's legislative and policymaking arm. See

N.H. Rev. Stat. Ann. § 49-B:2(IV)(d); Town of Hooksett v. Baines,

813 A.2d 474, 475-76 (N.H. 2002). State law and the town charter

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confer upon the Commission broad duties relating to the formulation

and implementation of park policy and the responsibility to work

with other governmental actors to coordinate and promote

recreational activities. N.H. Rev. Stat. Ann. § 35-B:3; Bedford,

N.H., Charter art. 1-11-1(c). The Commission's responsibilities

call for the exercise of discretionary judgment on matters of

importance to the Town and its inhabitants and involve policy

issues on which there is room for disagreement as to both goals and

methods of implementation. See Jimenez Fuentes v. Torres

Gaztambide, 807 F.2d 236, 241-42 (1st Cir. 1986) (en banc). That

these responsibilities are exercised subject to Council approval

does not alter their fundamental character.

The second element of this position-specific assessment

focuses on whether the responsibilities of the position itself

"sufficiently resemble those of a policymaker." Galloza, 389 F.3d

at 29. An important datum is whether the ability to do the work

effectively will be enhanced by the appointment of persons who hold

particular policy views. An office-holder who is principally

involved with policy, "even if only as an adviser," qualifies as a

policymaker. Flynn, 140 F.3d at 46.

The position in question fits neatly within this

paradigm. Although there is no formal job description for the

position, the Commission's raison d'être involves policymaking, and

members of the Commission are the instruments for carrying out that

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mission. Individual Commission members work directly with elected

officials and have a considerable capacity to influence municipal

decisions affecting parks and recreation. They are, therefore,

policymakers. See Vargas-Harrison, 272 F.3d at 971; Ortiz-Piñero

v. Rivera-Arroyo, 84 F.3d 7, 14 (1st Cir. 1996).

The plaintiff suggests that because the position is

merely advisory, it cannot involve policymaking. This suggestion

sets up a false dichotomy. A person need not possess the ultimate

decisionmaking authority in order to qualify as a policymaker.

Advisors can be policymakers. See Elrod, 427 U.S. at 368; Flynn,

140 F.3d at 46.

The last piece of the puzzle is speech-specific. We ask

whether the speech in question fairly can be said to conflict with

the appointing authority's stated policies on matters related to

the Commission's work. See Rose, 291 F.3d at 924; Vargas-Harrison,

272 F.3d at 973. This aspect of the matter is open and shut.

In the weeks before the Council took the challenged

action, the plaintiff made it crystal clear (openly and

vociferously) that he disagreed with the Council's approach to the

BVC project. In addition, he publicly opposed the Council's choice

of a preferred funding mechanism for the project. These views are

plainly policy related and bear directly on matters that the

Council reasonably could expect to fall within the purview of the

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Commission. On the undisputed facts, the necessary link between

the speech and the position has been forged.4

In an effort to change the trajectory of the debate, the

plaintiff argues that diversity of viewpoints among Commission

members is beneficial to enlightened governance. That may be true,

but the choice is up to the Council. The First Amendment does not

require that an appointing authority surround itself with

policymakers who represent divergent viewpoints. See Wilbur, 3

F.3d at 218; see also Connick, 461 U.S. at 146 ("[G]overnment

officials should enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary in the name of the

First Amendment.").

In this case, all roads lead to Rome. A position-

specific assessment makes manifest that compatibility of views is

a reasonable requirement for appointment to the Commission. A

speech-specific assessment makes manifest that the plaintiff's

comments on matters within the purview of the Commission could

reasonably have been seen by the defendants as demonstrating a lack

of the desired compatibility. Under these circumstances,

4
The plaintiff also alleges that his animadversions against
the school board contributed to the refusal to reappoint him to the
Commission. This allegation adds nothing to the equation. After
all, the Council reasonably could have regarded those comments as
interfering with his ability to carry out one of the essential
functions of the Commission: coordinating park policy with other
public officials. See N.H. Rev. Stat. Ann. § 35-B:3; Bedford,
N.H., Charter art. 1-11-1(c).

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Elrod/Branti principles require a finding that the defendants'

interest in providing effective and efficient government

preponderates over the plaintiff's First Amendment interest in free

expression of his views. See O'Hare Truck Serv., Inc. v. City of

Northlake, 518 U.S. 712, 719 (1996); Bonds, 207 F.3d at 977.

Consequently, the Pickering balance must be struck in favor of

permitting the defendants to rely on the plaintiff's public

comments as a reason for declining to reappoint him to the

Commission. See Vargas-Harrison, 272 F.3d at 974.

III. CONCLUSION

We need go no further. While the plaintiff was within

his rights to criticize the Council's vision of the BVC project,

the defendants were likewise within their rights in choosing not to

reappoint a foe of their policies to serve on a board whose primary

function was to give them policymaking advice. Thus, the district

court did not err in rejecting the plaintiff's First Amendment

claim.

Affirmed.

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