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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