concurring in part and dissenting in part.
I concur in the majority’s analysis of the due process issue. However, it is my opinion that Patteson’s testimony before the legislative hearing committee was not constitutionally protected speech and, as such, I would affirm the district court. When Patteson’s remarks are viewed in light of the political nature of his appointment, the nature of his job, the necessity of a close working relationship with the appellee, the fact that the information was already public and may not have been of great public importance in any event, I must respectfully dissent from Part IIB of the majority’s opinion.
The majority correctly defined the court’s duty to balance the state’s interest as an employer against Patteson’s interest as a citizen, as mandated by the Supreme Court’s holding in Pickering v. Board of *234Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). At 231. However, the majority then misapplied the Pickering principles to the facts of this case and consequently, in my view, erred in striking the balance for Patteson.
In Connick v. Myers, — U.S. —, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court recently clarified its position on how to properly apply the Pickering balance test in a case quite similar to this case. The majority should have applied the teaching of Connick to this case instead of trying to sidestep its analysis by an attempted distinction. At 232-233. This case involves an employment dispute between a subordinate and his superior. Because Con-nick is controlling and the district court opinion comports with Connick, I do not see the necessity of a remand.
The Court in Connick held that relevant considerations in applying the Pickering balance test are: 1) whether a close working relationship is necessary; 2) the manner, time and place in which the speech occurred; and 3) the context in which the dispute arose. All of these factors are germane in this case and require striking the balance in favor of the appellee. First, the necessity of a close working relationship between a deputy auditor and the state auditor who appointed him goes without saying. Second, the manner, time and place in which Patteson’s remarks arose indicate his true motive in speaking to the legislative committee. Patteson was not requested by the committee to testify but volunteered such information after appellee had left the hearing. Moreover, his opening statement made it clear that he was giving a political speech which was certain to cause dissension within the office. At 231-232, n. 4. Third, in discussing the significance of the context in which the dispute arose, the Court in Connick stated:
When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor’s view that the employee has threatened the authority of the employer to run the office.
Id. at 1693.
This statement is clearly applicable ' to Patteson’s statements to the legislative committee. Patteson’s speech arose from an employment dispute concerning office policy on signing the audit of the Governor’s office. Shortly after Johnson and Patteson disagreed on the application of such policy to Johnson in this instance, Johnson voluntarily testified before the legislative committee. Thus, according to Con-nick, additional weight must be given to Johnson’s view that Patteson had threatened his authority to run the office.
I believe that the majority misapplied Connick when they ignored one of the most important findings made by the district court. The district court stated:
The facts of the present case show that the relationship between the plaintiff and the defendant as subordinate and superi- or was supposed to be, and needed to be for the effective running of the office, exceptionally close. The plaintiff was to act in the place of the defendant when the defendant was absent. The plaintiff assisted in the making and carrying out of policies of the office; the defendant depended upon him to discern and articulate to the defendant all kinds of matters relating to the office. As the closest associate in the office, the plaintiff occupied a special position of trust and confidence. Therefore, whatever would cause a material breach of that relationship was destructive to vital interests of the state. Accordingly, the case fits the facts of Sprague v. Fitzpatrick, 546 F.2d 560 (C.A. 3rd Cir.1976), more closely than it fits Van Ooteghem v. Gray, 628 F.2d 488 (C.A. 5th Cir.1980). It must be remembered that even though the defendant knew in advance that the plaintiff was going to testify at the legislative hearing, and had no objection to that, he did not know what the plaintiff intended to say and did not know at the time he consented to the plaintiff’s testifying that the plaintiff would testify about his disagree*235ment with the defendant’s report of the audit of the governor’s office of several months earlier. In that testimony the plaintiff made it known that he thought the audit “did not disclose everything it needed to disclose in order for [him] to sign it.” Plaintiff’s Exhibit 2, page 27. Later in campaign literature, when the plaintiff was running against the defendant for the office of Auditor of Public Accounts, he said that he had “refused to sign a shoddy, inaccurate audit.” Defendant’s Exhibit 105. The disagreement between the plaintiff and defendant about the audit of the governor’s office had been for several months before and at the time of the legislative testimony was deep and devisive. In that setting the testimony wherein the plaintiff indicated his ambition for the office held by the defendant, his declaring his competency ás a Certified Professional Accountant, and his statement of disagreement with his superior’s decision regarding the audit of the governor’s office became a significant interference with the operation of the defendant’s office. As such, it was not protected speech.
(Emphasis mine.) The majority opinion cited part of the above passage. At 232, n. 5. However they did not cite, nor did they consider, the crucial factual and legal conclusion drawn by the district court: that appellant’s conduct became “a significant interference with the operation of defendant’s office” and that whatever caused a material breach of an exceptionally close relationship was destructive to the vital interests of the state. The district court discussed the very factors relied upon in Con-nick and reached a similar conclusion.
In sum, I find, as did the Supreme Court in Connick, that the limited first amendment interest involved here does not require that Johnson tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Patteson’s discharge therefore did not offend the first amendment and the judgment of the district court should be affirmed.