Mullin v. Town of Fairhaven

United States Court of Appeals
For the First Circuit

No. 00-2355
WILLIAM MULLIN, ANTONIO LOPES,
DAVID GAMMONS, and WILLIAM MARKEY,

Plaintiffs, Appellants,
v.

TOWN OF FAIRHAVEN, JOHN T. HAALAND,
and BRYAN WOOD,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and Stearns,* District Judge.

Harvey A. Schwartz, with whom Kimberly H. Scheckner and
Rodgers, Powers & Schwartz were on brief for appellants.
John J. Cloherty, III, with whom John J. Davis and Pierce,
Davis, & Perritano, LLP were on brief for appellees.

* Of the District of Massachusetts, sitting by designation.

March 19, 2002
 LIPEZ, Circuit Judge. This case requires us to apply

First Amendment law to the decision of a town to remove for cause

appointed local officials unwilling to comply with the directive of

the Board of Selectmen that they rescind a vote. Plaintiffs claim

that the Board of Selectmen of the Town of Fairhaven violated their

First Amendment rights when it removed them from the Town's

Conservation Commission for the exercise of their votes to replace

the Chair and co-Chair of the Commission. Upon the close of

plaintiffs' evidence at a bench trial, the district court found no

First Amendment violation and entered judgment in favor of the Town
of Fairhaven and two members of the Board of Selectmen

(collectively "defendants"). This appeal ensued. We affirm.

I.

A. The Controversy

The Town of Fairhaven Conservation Commission

("Commission") consists of seven members appointed by the Board of

Selectmen ("Board") for an unpaid term of three years. The

plaintiffs in this action -- William Mullin, Antone Lopes, David
Gammons, and William Markey (collectively "plaintiffs") -- were

four of the seven members serving on the Commission in 1997.

The Town bylaw establishing the Commission mandates that
"[t]he Commission shall elect by majority vote from among the
members a Chair and Co-Chair, each for a term of one (1) year."

The Commission customarily holds its annual elections on the same
day as the Town meeting. Accordingly, in June 1997, the Commission

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conducted its annual elections following the Town meeting, naming

Marinus Vander Pol as Chair and Winfred Eckenreiter as co-Chair.

Prior to the June 1997 elections, Mullin had been serving as
Commission Chair.

At a Commission meeting held on October 20, 1997, only

four months into the one-year term of the new Chair and co-Chair,
Mullin moved to reorganize the Commission. Markey seconded

Mullin's motion. Vander Pol, who understood the bylaws to

prescribe a one-year term, stated that the Commission would vote on

Mullin's motion, whether a reorganization would be "lawful or not."

Although the Commission's annual chairmanship elections are

typically included on the meeting agenda, the October 1997 mid-term

reorganization was not on the agenda.
Co-Chair Eckenreiter was absent from the October 20

meeting. The six other members were present. The motion to

reorganize passed by a 3 to 2 margin, with one abstention by
Gammons, who abstained from voting because of Eckenreiter's

absence. Mullin and Markey nominated each other for the positions

of Chair and Co-Chair respectively.1 The Commission then voted

Mullin as Chair and Markey as co-Chair.

The mid-term reorganization prompted the Board of

Selectmen to consult the Town Counsel, who advised in an opinion

1
Vander Pol declined a nomination as Chair for the
reorganization vote. We do not interpret this as an endorsement of
the mid-term reorganization, particularly in light of Vander Pol's
expressed doubts as to whether the move to reorganize mid-term was
"lawful or not."

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letter that the Commission did not have legal authority to remove

the Chair and co-Chair from their positions mid-term:

The Town by-laws provide that "[t]he
[Conservation] Commission shall elect by
majority vote from among the members a Chair
and Co-Chair, each for a term of one (1)
year." Town by-laws, c.8, §8-1. There is no
provision in the by-laws or in any other
applicable law authorizing the Commission to
remove either the chairman or the co-chairman
from that office prior to the expiration of
his one-year term. General law c.40 §8C which
provides for the appointment of Conservation
Commissions is silent on this issue.

Under similar provisions the Massachusetts
courts have held that an appointing authority
does not have the authority to remove an
appointee from office during his term unless
that authority is expressly stated in the
general laws. I am aware of no reason that
the same law of construction should not apply
to a town by-law.
Accordingly, it is my opinion that under these
circumstances the Conservation Commission did
not have legal authority to remove the
chairman and co-chairman from their respective
positions.
On November 5, 1997, the Board sent identical letters to

each of the seven Commission members, notifying them that their

October 20, 1997, reorganization violated the Town's bylaw, and

enclosing a copy of Town Counsel's opinion letter and the relevant

Town bylaw. In the letters, the Board indicated that they had

voted two to one to require the Commission to rescind as illegal

this reorganization at its next meeting.2 The letter also advised

2
The plaintiffs highlight the fact that the letter directed
the Commission to "rescind" the reorganization rather than
"reconsider" the reorganization, as was apparently voted by the
Selectmen. The district court determined (and we agree) that it is
immaterial whether the word "rescind" or "reconsider" was used: "We

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that failure to rescind would "lead to additional action by the

Board of Selectmen."

Prior to the transmittal of these letters, a curious
event transpired at the Commission meeting held on November 3,

1997, which commenced with Mullin and Markey sitting as Chair and

co-Chair. Deposed co-Chair Eckenreiter moved to reorganize the
Commission again. Gammons and Lopes were absent from this meeting;

all other Commission members were present. The motion to

reorganize again was unanimously passed by all members present,

including Mullin and Markey. Eckenreiter nominated Vander Pol as

Chair, his nomination was seconded, and the Commission members

unanimously elected Vander Pol as Chair.

After the meeting adjourned, Mullin decided that this
latest reorganization had no binding effect because he believed it

had been initiated by Eckenreiter only to prove the point that the

Commission could "do this back and forth" every week if mid-term
reorganizations were valid. Thus, at the subsequent Commission

meeting on November 17, 1997, Mullin and Markey disregarded the

November 3 reorganization and reassumed the positions of Chair and

co-Chair. At that meeting, in response to the November 5 letter by

the Selectmen, Mullin moved that the Commission reconsider the

October 20 reorganization "subject to a second legal opinion" to be

obtained at Town expense. Eckenreiter then moved to rescind the

October 20 reorganization. The motion to rescind failed by a vote

get a motion for reconsideration all the time here but what people
are really asking us to do is rescind what we have done and do
something different, not just think about it again."

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of three in favor to four opposed. Plaintiffs were the four

members who refused to rescind the October 20 reorganization,3

despite having been advised of its illegality of the
reorganization.4
In response to plaintiffs' refusal to rescind the

allegedly unlawful reorganization, the Board informed them in
separate letters dated December 1, 1997, that it would hold a

hearing to determine whether to remove plaintiffs from their

positions on the Commission, in accordance with the Town bylaws.

Under these bylaws, Commission members "may be removed [for cause]

by [the] Board pursuant to the provisions of [Mass. Gen. Laws ch.]

40, § 8C." Section 8C provides that an individual appointed to the

Conservation Commission "may, after a public hearing, be removed
for cause by the appointing authority." Mass. Gen. Laws ch. 40,

§ 8C. The letters indicated the Board's intention to consider "any

or all of the following as possible grounds for removal" of
plaintiffs:

[Their] recent participation in the removal
of the chairman and co-chairman of the
Commission despite their election, pursuant
to Town By-Law c. 8, section 8-1, to a one

3
Although Gammons had originally abstained from the October
reorganization, he voted against the motion to rescind the
reorganization. Gammons contended at trial that he did not feel he
could rescind his prior vote because he had previously abstained.
On cross-examination, however, he acknowledged that he knew he
could abstain again on the motion to rescind the reorganization if
the prior abstention was his concern.
4
Selectman Haaland had telephoned Mullin prior to the
November 17 meeting to request that Mullin simply wait six months
until the annual Chairmanship elections in order to take over as
Chair of the Commission. Mullin refused Haaland's request.

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 year term to those positions on June 30,
1997.
[Their] improper denial of an order of
conditions for a project (30 Fisherman Road)
without supporting facts, and on grounds not
allowed under the Wetlands Protection Act.

The letters to Mullin and Markey also referenced their "recent

participation, and apparent organization, of an appeal for a
superseding order from an order approved by the Commission for the

AT&T project." In addition, Mullin was notified that his "apparent

failure to comply with the Wetlands Protection Act" at his home at

27 Silvershell Beach could also be considered as a possible basis

for his removal.

On December 22, 1997, the Board conducted the removal

hearing (at which plaintiffs were represented by counsel) and voted
to remove plaintiffs from the Commission. As cause therefor, the

Board stated that it had "less than complete confidence in [their]

competency and efficiency in [their] positions based upon the
record in this matter."

B. The Trial

On January 6, 1998, plaintiffs brought an action in
federal district court pursuant to 42 U.S.C. § 1983 against

defendants Town of Fairhaven and John T. Haaland and Bryan Wood
(individually and in their capacity as members of the Fairhaven
Board of Selectmen),5 alleging violations of the First and

5
Plaintiffs sued only two of the three Selectmen on the
Board, apparently because those two voted to remove plaintiffs from
the Commission, although there was no direct evidence submitted as
to how each Selectman voted.

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Fourteenth Amendments. Plaintiffs sought damages and equitable

relief for their alleged wrongful removal from the Commission.

Specifically, plaintiffs sought (1) a preliminary injunction
enjoining defendants from appointing replacement members to the

Commission and (2) a permanent injunction requiring their

reinstatement to the Commission. The district court refused to
grant the preliminary injunction. All parties then moved for

summary judgment, and all motions were denied.

A bench trial commenced on August 15, 2000. At the close

of plaintiffs' evidence, the district court, upon defendants'

motion, entered judgment for defendants, stating inter alia, that:

[U]nder any circumstance I think the Board of
Selectmen had the authority to give fair
warning that they felt that the bylaws are
being violated. They gave an opinion of
counsel to that effect. And the Commission
persisted in its position. And I think that
that justified a removal for cause which was
within the authority of the Board of
Selectmen. So I am going to allow the motion.
This appeal followed.

II.

The trial court's decision, issued at the close of
plaintiffs' case in a bench trial, was a judgment as a matter of

law on partial findings under Fed. R. Civ. P. 52(c).6 See N.E.

6
Rule 52(c) provides in relevant part:

Judgment on Partial Findings. If during a trial without
a jury a party has been fully heard on an issue and the
court finds against the party on that issue, the court
may enter judgment as a matter of law against that party
with respect to a claim or defense that cannot under the
controlling law be maintained or defeated without a

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Drilling, Inc. v. Inner Space Servs., Inc., 243 F.3d 25, 37 (1st

Cir. 2001) (characterizing defendant's motion for judgment at close

of plaintiff's case at bench trial as motion for judgment on
partial findings, rather than as a motion for judgment as a matter

of law under Fed. R. Civ. P. 50(c), which is applicable only in

jury trials); Palmacci v. Umpierrez, 121 F.3d 781, 785 & n.1 (1st

Cir. 1997) (same). In our review of Rule 52(c) judgments, we

evaluate the district court's conclusions of law de novo, see Rego

v. ARC Water Treatment Co., 181 F.3d 396, 400 (3d Cir. 1999), and

typically examine the district court's underlying findings of fact

for "clear error," United States v. Davis, 261 F.3d 1, 57 (1st

Cir. 2001).

However, where First Amendment interests are implicated,
our review must be more searching. "[I]n cases raising First

Amendment issues . . . an appellate court has an obligation to

'make an independent examination of the whole record' in order to
make sure that 'the judgment does not constitute a forbidden

intrusion on the field of free expression.'" Bose v. Consumers

Union, 466 U.S. 485, 499 (1984) (quoting New York Times v.

Sullivan, 376 U.S. 254, 284-86 (1964)). See also O'Connor v.

Steeves, 994 F.2d 905, 912-13 (1st Cir. 1993). We conduct our

review accordingly.

favorable finding on that issue . . . .

Fed. R. Civ. P. 52(c).

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 III.

We have extended First Amendment protection to votes on

"controversial public issue[s]" cast by "a member of a public

agency or board." Miller v. Town of Hull, 878 F.2d 523, 532 (1st

Cir. 1989) ("There can be no more definite expression of opinion

than by voting on a controversial public issue."); see also Stella

v. Kelley, 63 F.3d 71, 75-76 (1st Cir. 1995). This protection is

far from absolute, however. In their capacity as public officials

voting on matters of public concern, plaintiffs retain First

Amendment protection "so long as [their] speech does not unduly
impede the government's interest . . . in the efficient performance

of the public service it delivers through" its appointed officials.
O'Connor, 994 F.2d at 912 (citing cases). Accordingly, to
determine the scope of First Amendment free speech protections

applicable to public officials, we have employed a three-part test
extracted largely from two Supreme Court opinions, Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), and

Pickering v. Bd. of Educ., 391 U.S. 563 (1968). See Tang v. R.I.

Dep't of Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 1998) (setting
forth three-part test); O'Connor, 994 F.2d at 912-13 (same).

First, we must determine whether the speech at issue
involves "matters of public concern." Connick v. Myers, 461 U.S.

138, 147-48 (1983). If it does not, then its First Amendment value

is low, and a "federal court is not the appropriate forum in which
to review the wisdom" of internal decisions arising therefrom. Id.

at 147. Second, if the speech does pertain to matters of public

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concern, the court must, under the Supreme Court's decision in

Pickering, balance the strength of plaintiffs' and the public's

First Amendment interests 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 public officials. O'Connor, 994 F.2d at

912 (citing Pickering, 391 U.S. at 568). Albeit not an exact

science, Pickering 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."7 Rankin v. McPherson, 483 U.S. 378, 384

(1987). Because these first two prongs involve assessing whether

plaintiffs' votes "'are of a character which the principles of the
First Amendment . . . protect,' these determinations are always

subject to de novo review." O'Connor, 994 F.2d at 912 (quoting

Connick, 461 U.S. at 150 n.10) (internal citation omitted).
Third, and finally, if First Amendment interests outweigh

a legitimate government interest in curtailing the speech under the
Pickering balancing test, plaintiffs must then show that the

protected expression was a substantial or motivating factor in the

decision to remove them from their posts on the Commission. See

Mt. Healthy, 429 U.S. at 287. If plaintiffs can make this showing,

7
We are aware that the Board, acting as an appointing body,
is not a "public employer" in a literal sense. We see no reason,
however, why First Amendment jurisprudence in the public-employer
context should not apply with equal force to the Board's removal of
appointed, unpaid public officials. See, e.g., Miller, 878 F.2d at
531-33; Stella, 63 F.3d at 74-75.

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the burden of persuasion shifts to defendants who must then prove

by a preponderance of the evidence that plaintiffs would have been

removed "even in the absence of the protected conduct." Id.

"[C]learly erroneous" review is appropriate on this third-step

inquiry. Duffy v. Sarault, 892 F.2d 139, 145-46 (1st Cir. 1989);

see also O'Connor, 994 F.2d at 913.

IV.

Invoking First Amendment protections, plaintiffs claim

that the Board removed them from the Commission on the basis of the

mid-term reorganization, as well as other issues alluded to in the
November 3 notice of the removal hearing as "possible grounds" for

their removal. Notwithstanding the inclusion of these other issues
in the November 3 notice, however, there was no evidence introduced
at trial that the Selectmen actually considered these other grounds

as bases for its removal decision. The district court, as fact-
finder, found that the unlawful mid-term reorganization was the
basis for plaintiffs' removal, specifically finding that

plaintiffs' insistence on the mid-term reorganization in violation
of the Town bylaws "justified a removal for cause which was within
the authority of the Board of Selectmen." This conclusion about

the basis for the removal of the plaintiffs is not clearly
erroneous. See Duffy, 892 F.2d at 146-47 (reviewing district

court's Mt. Healthy causation determinations for clear error). We

therefore apply our First Amendment analysis to that ground for
removal.

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A. Matters of Public Concern

The Supreme Court has held that "[w]hether an employee's

speech addresses a matter of public concern must be determined by

the content, form and context of a given statement, as revealed by

the whole record." Connick, 461 U.S. at 147-48. That

determination may require an inquiry into the employee's motive for

the speech. See, e.g., Alinovi v. Worcester Sch. Comm., 777 F.2d

776, 787 (1st Cir. 1985) (concluding that speech found to be

motivated by a purely personal issue did not implicate matter of

public concern, notwithstanding attenuated connection of speech to
incident raising Fourth Amendment concerns). In that endeavor, we

examine the extent to which plaintiffs intended their speech to
contribute to any "public discourse," or if it simply reflected
personal or internal Commission concerns. O'Connor, 994 F.2d at

914.
Here, the district court perceived the reorganization as
primarily a power-grab by plaintiffs, stating in the midst of

plaintiffs' case, "you've got people that want someone else in
power . . . that's not First Amendment." Some elements of the
record certainly support the district court's view that the

reorganization was simply a grab for power: the reorganization took
place without notice at the end of a meeting, and absent members
could not and were not polled as to their views. However, the

district court's observation, and this evidence, speak to how
plaintiffs conducted the reorganization vote and not to their

motives, at least not directly.

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 Our independent examination of the record instead reveals

a mix of motives at play. O'Connor, 994 F.2d at 912 (mandating de

novo review of public-concern determinations, given importance of
First Amendment values involved). The friction between plaintiffs

and Vander Pol sprang in part from a clash of personal styles and

from disagreements over the internal policies and workings of the
Commission -- such as the maintenance of files and the manner in

which a secretary was hired -- all matters of little concern to the

public. See Connick, 461 U.S. at 149 ("[T]he First Amendment does

not require a public office to be run as a roundtable for employee

complaints over internal office affairs."); Curtis v. Okla. City

Pub. Schs. Bd. of Educ., 147 F.3d 1200, 1212 (10th Cir. 1998)

("Speech concerning individual personnel disputes or internal
policies will typically not involve public concern."). At the same

time, plaintiffs claimed dissatisfaction with Vander Pol's

leadership because of his views on controversial public issues
before the Commission.

Moreover, beyond the question of motive, the speech at

issue is a vote, not simply the expression of a point of view on a

controversial issue. That vote had tangible consequences for the

community in terms of the Commission's leadership. Given the

responsibility of the Commission "for the promotion and development

of the Town's natural resources and for the protection of watershed

resources," Mass. Gen. Laws ch. 40, § 8C, there is a significant

public dimension to the votes cast for its Chair and co-Chair. As

with any local board, agency or commission, its leaders bear

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primary responsibility for the articulation of policy to the public

and other government entities. Accordingly, in view of the

responsibilities of the Commission, the important roles of its
Chair and co-Chair, and the public issues that contributed to the

dissension on the Commission, we conclude that the vote at issue

here involves a matter of public concern.

B. Pickering Balancing Test

Under the Pickering test, we must balance the First

Amendment interests at stake against the Town's "legitimate

interests in preventing unnecessary disruptions and inefficiencies
in carrying out [the Commission's] public service mission."

O'Connor, 994 F.2d at 915 (citing Pickering, 391 U.S. at 568-75).
1. Plaintiffs' Interests

In evaluating the strength of plaintiffs' First Amendment

interests, we must again consider the motives behind plaintiffs'
efforts to reorganize the Commission mid-term. See id. ("[I]nsofar

as self-interest is found to have motivated [plaintiffs'] speech,

[their] expression is entitled to less weight in the Pickering

balancing than speech on matters of public concern intended to
serve the public interest."). Although we have acknowledged the

public concern implicated by the vote to reorganize, we also find
the import of that concern diminished by plaintiffs' preoccupation
with personal disagreements and internal disputes over the workings

of the Commission. Also, so far as we can tell from the record,
there was little or no effort by plaintiffs to involve the public

in a debate over the reorganization of the Commission. The plan to

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conduct the reorganization vote was not even noted on the agenda

for the meeting. Plaintiffs are hard pressed to elevate the First

Amendment stakes by invoking the interests of the community in a
public discourse that they appear to have done so little to foster.

2. Town's Interests

We have noted that the government has a "greater interest
in curtailing erroneous statements, than correct ones." Brasslett

v. Cota, 761 F.2d 827, 839 (1st Cir. 1985). Here, the Town

undoubtedly has a vital interest in enforcing compliance with its

bylaws, which plaintiffs had sworn to uphold. Indeed, the district

court recognized these interests in its bench ruling for the

defendants:

The evidence that we have had so far, my analysis of it
is that . . . the Commission had no authority to
"reorganize." They had no authority to remove the
chairman and [co-Chair] midstream. They could have
made that move in July at the annual visit of that, to
that issue or they could have waited in eight months
and done it the next July. But there has been nothing
presented to me that indicates that there is any
authority for them to change the term once it has been
set. With respect to the Board of Selectmen, I think
that they were within their authority to advise the
committee that they were violating the law and to tell
them to rescind, whether you call it rescinding or
reconsideration. . . . And under any circumstance I
think the Board of Selectmen had the authority to give
fair warning that they felt that the bylaws were being
violated. They gave an opinion of counsel to that
effect. And the Commission persisted in its position.
And I think that that justified a removal for cause
which was within the authority of the Board of
Selectmen. So I am going to allow the motion.

We agree with the district court that the Board had a

sound legal basis for its determination that the mid-term

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reorganization was not authorized by law.8 The Town bylaws provide

that the Commission "shall elect by majority vote from among the

members a Chair and co-Chair, each for a term of one (1) year."
Town Counsel, as noted in his opinion letter, found no legal

authority permitting the Commission to remove either the Chair or

co-Chair prior to the expiration of such one-year term. Nor could
plaintiffs cite any such authority. At trial, plaintiffs relied

upon Robert's Rules of Order which, under Town bylaws, govern town

business meetings "so far as they are applicable and not

inconsistent" with the bylaws. Plaintiffs specifically cited to

Section 60 which states in part:

Remedies Against Misconduct or Dereliction of
Duty in Office
. . . .
[A]ny regularly elected officer of a permanent
society can be deposed from office for cause
-- that is, misconduct or neglect of duty in
office -- as follows: . . . If . . . the
bylaws provide that officers shall serve only
a fixed term . . . an officer can be deposed
from office only by following the procedures
for dealing with offenses by members outside a
meeting; that is, an investigating committee
must be appointed, it must prefer charges, and
a formal trial must be held.

Gen. Henry M. Robert, Robert's Rules of Order § 60, at 656-57 (9th

ed. 1990).

As the district court noted, this reliance on § 60 is

misplaced for two reasons. First, the record does not demonstrate

8
To be sure, we are not called upon here in our Pickering
balancing inquiry to decide definitively the merits of the Board's
ruling on the illegality of the mid-term reorganization. Rather,
we must decide the more limited issue of whether the Board had a
sound legal basis for that ruling, thereby justifying its
insistence on compliance.

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the "misconduct or dereliction of duty" necessary to trigger these

remedies on the part of Vander Pol or Eckenreiter. Further, even

if such circumstances were present, plaintiffs did not follow the
requisite § 60 procedure. In the absence of other supporting

authority for their actions, plaintiffs thus fail to raise any

colorable dispute about the illegality of the mid-term
reorganization challenged by the Board.9

In addition, the record reveals the inefficiencies

created by the unlawful mid-term reorganization. At the Commission

meeting held on November 3, 1997, after the mid-term reorganization

took place, deposed co-Chair Eckenreiter moved again to reorganize.

His motion was passed unanimously, and Vander Pol was unanimously

elected to reassume his position as Chair (though Mullin later
disregarded the reorganization). This November 3 reorganization

was initiated by Eckenreiter only to prove the point that the

Commission could "do this back and forth every week" if mid-term
reorganizations were indeed valid. Reorganizing outside the

designated time creates significant inefficiencies in the

9
Plaintiffs rely upon Stella for the proposition that the
illegality of their mid-term reorganization cannot be a "for cause"
basis for their removal where First Amendment interests are
implicated. We, however, do not read Stella to stand for that
principle. Stella involved the removal of members of a local
zoning board because of their votes to grant several controversial
(arguably illegal) variances. 63 F.3d at 72. That case, however,
came to us by way of interlocutory appeal from a denial of
defendants' summary judgment motion as to qualified immunity. Id.
at 73. As such, we merely made explicit our intention not to
engage in "fact-bound delving into illegality" precluded by the
interlocutory nature of the appeal. Id. at 77 (citing Johnson v.
Jones, 515 U.S. 304 (1995)). Our decision in Stella contains
nothing that would prevent us from factoring the illegality of
plaintiffs' mid-term reorganization into our analysis.

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Commission which would "hamper the [Town's] performance of public

functions." Rankin, 483 U.S. at 384. The district court recognized

the costs of such inefficiency, characterizing the numerous
reorganizations as "a lot of activity with consequences to the

taxpayers of the town." See Connick, 461 U.S. at 151 ("Government,

as an employer, must have wide discretion and control over the
management of its personnel and internal affairs . . . [including]

the prerogative to remove employees whose conduct hinders efficient

operation and to do so with dispatch."); see also Brasslett, 761

F.2d at 839 ("[T]he government also has a more legitimate concern
for speech which actually impairs its functions than for that which

does not.").
3. Balancing Analysis

Balancing the First Amendment interests of the plaintiffs

here against the Town's countervailing interests in operational
efficiency and enforcement of its bylaws, we conclude that the
Board's actions to correct the illegal mid-term reorganization, and

to bring the Commission into compliance with the Town bylaws, did
not abridge any First Amendment protections. The Board did not
have to tolerate the plaintiffs' unlawful mid-term reorganization,

with its disruptive effect on the work of the Commission. The
Town's interest in enforcing its bylaws, by directing plaintiffs to
rescind the illegal reorganization or otherwise face removal from

office, outweighs any First Amendment protection that extends to
plaintiffs' right to vote to reorganize mid-term.

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 Having reached this conclusion, our First Amendment

inquiry ends, and we need not reach the final step of the three-

part test -- namely, the Mt. Healthy causation inquiry in which
the court examines whether the protected expression was a

substantial or motivating factor in the decision to remove

plaintiffs from office. See Mt. Healthy, 429 U.S. at 287.

C. For Cause Removal

With the First Amendment issue thus resolved against

plaintiffs, we have rejected the only substantive objection raised

by plaintiffs to their removal for cause. We also reject their
related procedural argument that the First Amendment implications

of their removal from the Commission required the Board to forego
the for cause removal procedure provided by Massachusetts law in
favor of a court action to remove plaintiffs. Accepting that

argument would needlessly weaken the executive authority of the
Board of Selectmen. If the exercise of that authority abuses First
Amendment rights, the courts are available for redress, as this

case demonstrates. Here, however, there was no abuse.

Affirmed.

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