Filed: Feb. 04, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-4-2004 Curinga v. Clairton Precedential or Non-Precedential: Precedential Docket No. 03-1278 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Curinga v. Clairton" (2004). 2004 Decisions. Paper 966. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/966 This decision is brought to you for free and open access by the Opinions of the United
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 2-4-2004 Curinga v. Clairton Precedential or Non-Precedential: Precedential Docket No. 03-1278 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Curinga v. Clairton" (2004). 2004 Decisions. Paper 966. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/966 This decision is brought to you for free and open access by the Opinions of the United ..
More
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-4-2004
Curinga v. Clairton
Precedential or Non-Precedential: Precedential
Docket No. 03-1278
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Curinga v. Clairton" (2004). 2004 Decisions. Paper 966.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/966
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL SAMUEL J. CORDES, ESQUIRE
(ARGUED)
UNITED STATES Ogg, Cordes, Murphy & Ignelzi
COURT OF APPEALS 245 Fort Pitt Boulevard
FOR THE THIRD CIRCUIT Pittsburgh, Pennsylvania 15222
Attorney for Appellant
No. 03-1278 RONALD D. BARBER, ESQUIRE
(ARGUED)
Strassburger, McKenna, Gutnick &
Potter
DOMENIC J. CURINGA, 322 Boulevard of the Allies, Suite 700
Appellant Pittsburgh, Pennsylvania 15222
Attorney for Appellees
v.
CITY OF CLAIRTON; OPINION OF THE COURT
GEORGE ADAM SON, City Council
Member, in his individual capacity;
THOM AS MEADE, City Council SCIRICA, Chief Judge.
Member, in his individual capacity;
DOMENIC VIRGONA,City Council At issue is whether a city council
Member, in his individual capacity lawf ully d ismiss ed it s p r i n ci p al
policymaking employee who campaigned
against winning councilmanic candidates
in a primary election. The City of Clairton
On Appeal from the fired its municipal manager, Dominic
United States District Court for the Curinga, after he campaigned against an
Western District of Pennsylvania incumbent city council member who won
D.C. Civil Action No. 00-cv-00907 re-election and against another successful
(Honorable Robert J. Cindrich) councilmanic candidate. Curinga asserts
the city council’s decision to terminate him
violated his First Amendment right to
speak freely on a matter of public concern.
Argued July 31, 2003 Summary judgment was granted for
defendants. We will affirm.1
Before: SCIRICA, Chief Judge,
RENDELL and AMBRO, Circuit Judges
1
We exercise appellate review over the
(Filed February 4, 2004) entry of summary judgment under 28
U.S.C. § 1291. Our standard of review is
plenary. Morton Int’l, Inc. v. A.E. Staley
I. year. His employment contract allowed at-
will termination.
In August 1997, Dominic Curinga
was appointed municipal manager of the In 1999, while employed as
City of Clairton, Pennsylvania. Prior to municipal manager, Curinga ran for the
this appointment, Curinga had served two position of District Justice as an “Action
terms on the Clairton City Council and one Team” Democrat. The “Action Team”
term as its mayor. The city council, which ticket ran against the “regular” Democratic
included Mayor Dominic Serapiglia and Party’s ticket in the primary election. The
four council members, voted 4-1 in favor “regular” party’s endorsed ticket included
of Curinga’s appointment as municipal City Councilman incumbent George
manager. Curinga and all council Adamson and candidate Dominic Virgona,
members were members of the Democratic who was challenging incumbent City
Party. Councilwoman and “Action Team”
Democrat Ruth Pastore.
Curinga was responsible to the city
council “for the administration of all In his deposition, Curinga admitted
municipal affairs placed in the Manager’s speaking out during the primary election
charge.” Curinga described his position as campaign in favor of Pastore and against
“run[ning] the day-to-day business Adamson and Virgona. At one point in the
operations of the city.” In this capacity, he primary campaign , all Demo cratic
oversaw all city departments and candidates were present at a roundtable
supervised and managed all city question and answer session of a “Meet the
employees, including the finance director, Candidates” forum sponsored by the First
public safety director, public works AME Church of Clairton. During the
director, fire chief and police chief. session, a member of the audience
Curinga also implemented city council questioned Curinga about alleged racial
decisions in various departments within discrimination at the Sons of Columbus, an
the municipality. He had the power to Italian ethnic heritage organization to
appoint, suspend, or remove all municipal which Curinga and other candidates
employees and administrative unit heads belonged. The audience member asked,
with the advice and consent of the council. “How could you say you are going to be a
Curinga received a salary of $39,000 per fair magistrate when you’re a member of
an organization, a club, that does not allow
blacks admittance[?]” Curinga was upset
that two other club members present at the
Mfg. Co., 343 F.3d 669, 679 (3d Cir.
forum, Virgona and Curinga’s opponent
2003). A motion for summary judgment is
for District Justice, Armand Martin, failed
properly granted when the record reveals
to come to the club’s defense.
no genuine issue of material fact, and the
movant is entitled to judgment as a matter The incident prompted Curinga to
of law. Id. at 680.
write “An Open Letter to the Membership association with our organization.
of the Sons of Columbus, Clairton:” Elect: Domenic J.
Curinga—District Justice; Ruth
This forum was attended by
Pastore—Council; . . . .
a majority of African-American
citizens. During the question (emphasis in original). The letter was
period of the forum, the audience signe d by “ The ‘A ction Tea m ’
began to question President Democrats.” Curinga admits he wrote the
Curinga as to why African- letter.
American people are not permitted
Following the letter’s distribution to
to join the Sons of Columbus. You,
the membership, the Sons of Columbus
the members of the Sons of
expelled Virgona from the club. Virgona
Columbus should know that
later stated that this letter and the resulting
Domenic Virgona and Armand
expulsion damaged his relationship with
Martin both stood back and were
Curinga: “I was highly upset [about the
ashamed to admit that they are
letter] . . . [because Curinga] was attacking
members of our organization. Why
me and I wasn’t running against him. But
did they just step back? Why didn’t
he had a purpose for attacking me that if
they help to explain that our
Ruth Pastore won, he was sure that his job
organization is an ethnic society,
still existed.” Virgona also explained,
promoting our Italian heritage?
“[t]his letter did it all. And then after that,
Instead, these two members were
I mean we were having arguments all
aligned with the people sponsoring
through, at every meeting of the Sons of
the forum, in an attempt to present
Columbus.”
a negative impression on [sic] the
A frican-American people in During his campaign for District
attendance about our organization Justice, Curinga took off eleven weeks
and our heritage. from work with pay, claiming he deserved
“comp time” because of his prior
An appeal is made to all
attendance at evening and weekend city
members of the Sons of Columbus
meetings. The city council never approved
in Clairton, to NOT remember
this use of “comp time.”
these two members on Election
Day. The same way that they did On May 18, 1999, Curinga lost to
not remember they were members Martin in the District Justice primary
of our organization at the forum. election. Adamson was re-elected and
Pastore lost her seat on the city council to
It is up to you, the
Virgona. Thus the “regular” Democratic
membership, to vote and support
Party candidates prevailed over the
people that our [sic] proud of their
“Action Team” Democrats and the balance
Italian heritage and of their
of power in the city council shifted to the
“regular” Dem ocratic Party problems. Taking the facts in the light
representatives. most favorable to Curinga, we assume he
was fired because of his political speech,
In the summer of 1999, Curinga and
including the Sons of Columbus letter.
two other defeated candidates filed an
election challenge in the Court of Curinga brought suit under U.S.
Common Pleas of Allegheny County. The Const. amend. I and 42 U.S.C. § 1983
court dismissed the lawsuit, noting it was against the City of Clairton and the three
“grossly insufficient procedurally and council members who voted for his
substantively.” Pastore et al. v. Virgona et termination, claiming the Clairton City
al., GD 99-8592 (C.P. Allegheny Cty., July Council had retaliated against him for
2 2 , 1 9 9 9). T h e P e n n s yl v a n ia exercising his right to free speech in
Commonw ealth Court dismissed a writing the Sons of Columbus letter and
subsequent appeal because petitioners for filing the election fraud lawsuit. In a
failed to provide notice to defendants. Repo rt and Recommend ation, the
Pastore et al. v. Virgona et al., 741 A.2d Magistrate Judge recommended summary
256 (Pa. Commw. Ct., Oct. 21, 1999). judgment for all defendants. The District
C o u r t a d opted the R epor t a n d
On January 3, 2000, the new city
Recommendation. Curinga timely
council met a nd term inated the
appealed.
employment contracts of the municipal
manager and municipal solicitor. Council II.
members Adamson, Thomas Meade, and
A.
Virgona voted in favor of Curinga’s
termination, while Mayor Serapiglia and This matter falls at the intersection
Councilman Terry Lee Julian voted of two separate First Amendment
against. doctrines: freedom of speech and freedom
of association. Both are implicated when
According to council minutes, the
a high-level government employee speaks
newly appointed municipal solicitor stated
out against his public employer during an
that the city council fired Curinga because
election campaign. Wilbur v. Mahan, 3
he violated the Home Rule Charter by
F.3d 214, 215 (7th Cir. 1993). The First
campaigning on city time and using
Amendment protects an employee who
taxpayer money to fund his campaign.
speaks out on a matter of public concern,
Reasons for Curinga’s termination cited in
so long as the employee’s interests
the council members’ depositions included
outweigh the government’s interest in
campaigning on city time; excessive
efficient operations. At the same time,
absences during the campaign; the lawsuit
public officials may be able to terminate a
alleging election fraud; a conviction for
policymaking employee on the basis of
driving under the influence of alcohol; the
political affiliation and conduct, regardless
Sons of Columbus letter; and interpersonal
of freedom of association rights. While
this case implicates both doctrines, the At the same time, the government
result here is the same, because the public has an interest in regulating the speech of
employer’s interest is especially strong. its employees to promote “efficiency and
integrity in the discharge of official duties,
Although there has been little
and [in maintaining] proper discipline in
disparity in application and outcome, the
the public service.” Connick, 461 U.S. at
various courts of appeals have divided
150-51.2 These interests must be balanced
over whether to employ an analysis based
against the employee’s interest in
on freedom of speech or on freedom of
addressing matters of public concern and
association. In cases such as these, under
enabling the electorate to make informed
both doctrines, the outcome is likely to be
decisions. 391 U.S. at 572.
the same. Nevertheless, we believe that in
most cases, where a confidential or policy The Pickering balancing test
making employee engages in speech or considers “whether the statement impairs
conduct against his public employer, the discipline by superiors or harmony among
better analytical approach is found under co-workers, has a detrimental impact on
the freedom of speech doctrine. close working relationships for which
personal loyalty and confidence are
B.
necessary, or impedes the performance of
Public employees have a First the speaker’s duties or interferes with the
Amendment right to speak freely on
matters of public concern. See, e.g., Perry
2
v. Sindermann, 408 U.S. 593, 597 (1972); Justice Powell elaborated:
Pickering v. Board of Educ.,
391 U.S. 563, To this end, the Government, as an
571-72 (1968), (teacher’s speech against employer, mu st hav e w ide
school board is protected as a matter of discretion and control over the
public concern); Watters v. City of management of its personnel and
Philadelphia,
55 F.3d 886, 891 (3d Cir. internal affairs. This includes the
1995) (“judicial vigilance is required to prerogative to remove employees
ensure that public employers do not use whose conduct hinders efficient
their authority to silence discourse on operation and to do so with
matters of public concern simply because dispatch. Prolonged retention of a
they disagree with the content of the d i s r u p ti v e or oth e r w i s e
employee’s speech.”). But there is unsatisfactory emp loyee can
protection only for speech in matters of adversely affect discipline and
public concern, Connick v. Myers, 461 morale in the work place, foster
U.S. 138, 146 (1983), and that which is not disharmony, and ultimately impair
likely to disrupt the efficient operation of the efficiency of an office or
the workplace.
Pickering, 391 U.S. at 568. agency.
Arnett v. Kennedy, 416 U.S. 134, 168
(1974) (Powell, J., concurring in part).
regular operation of the enterprise.” insure the efficiency of the public
Rankin v. McPherson, 483 U.S. 378, 388 workplace, stating that “mere political
(1987). The test also takes into account association is an inadequate basis for
the extent of authority entailed in the imputing disposition to ill-willed conduct.”
employee’s position.
Id. at 390.
Id. at 364-65.
In a public employee’s retaliation At the same time, the Court in
claim for engaging in protected activity, Elrod allowed dismissals based on
there are three factors to consider. First, political affiliation for “policymaking”
the employee must demonstrate that the positions. Policymaking employees with
speech involves a matter of public concern dif f e r ent politic al affiliations o r
and the employee’s interest in the speech orientations could thwart the will of the
outweighs the government employer’s electorate and block the implementation of
countervailing interest in providing new policies.
Id. at 367. Those who were
efficient and effective services to the not “policymakers” were “not in a position
public. Pro v. Donatucci,
81 F.3d 1283, to thwart the goals of the in-party” and
1288 (3d Cir. 1996). Next, the speech were protected.
Id. The Court refined the
must have been a substantial or motivating policymaker exception four years later in
factor in the alleged retaliatory action. Branti v. Finkel,
445 U.S. 507 (1980),
Baldassare v. New Jersey,
250 F.3d 188, holding “the ultimate inquiry is not
194-95 (3d Cir. 2001); Green v. Phila. whether the label ‘policymaker’ or
Hous. Auth.,
105 F.3d 882, 885 (3d Cir. ‘confidential’ fits a particular position;
1997). Finally, the employer can show rather the question is whether the hiring
that it would have taken the adverse action authority can demonstrate that party
even if the employee had not engaged in affiliation is an appropriate requirement
protected conduct.
Pro, 81 F.3d at 1288. for the effective performance of the public
The second and third factors are questions office involved.”
Id. at 518.
of fact, while the first factor is a question
This court has considered factors
of law. Id.
that might lead to an Elrod exception. The
More than twenty five years ago, determining test in Ness v. Marshall was
the Supreme Court set forth a separate whether a difference in party affiliation
an alys is for p olitically mo tivated was “highly likely to cause an official to
discharges of public employees. In Elrod be ineffective in carrying out” his duties.
v. Burns, 427 U.S. 347 (1976), the Court
660 F.2d 517, 521 (3d Cir. 1981). In
restricted the dismissal of public Brown v. Trench, we held a key factor was
employees for partisan reasons to protect whether the employee has “meaningful
the employees’ freedom of political belief input into decisionmaking concerning the
and
association. 427 U.S. at 357-58 nature and scope of a major township
(Brennan, J., plurality opinion). The Court program.”
787 F.2d 167, 168 (3d Cir.
also restricted the use of patronage to
1986). 3 See also Zold v. Township of 1995); Williams v. City of River Rouge,
Mantua,
935 F.2d 633 (3d Cir. 1991)
909 F.2d 151, 153 n.4 (6th Cir. 1990).
(applying the Branti test to determine These courts have upheld terminations
whether party affiliation is an appropriate under Elrod-Branti of policymaking
requirement for the effective performance employees who open ly suppo rted
of the duties of the public office). campaigns against their current or
subsequently elected employer. Kaluczky,
Elrod has been traditionally applied
57 F.3d at 204-05; Williams, 909 F.2d at
to terminations based on an employee’s
153-54.
different political affiliation. Members of
the same party are presumed to share So the Supreme Court has
common interests and goals, and patronage apparently crafted two methods of
appointments usually come from the same analyzing First Amendment claims
party as the elected official. Hall v. Ford, depending on the constitutional rights
856 F.2d 255, 263 (D.C. Cir. 1988). But implicated – the right of free speech
identical party affiliation does not (addressed by the Pickering balancing test)
necessarily ensure the subordinate’s loyal and the right of political affiliation
adherence to the superior’s policies. (addressed by Elrod/Branti). But, as
Primary election fights can be famously noted, Pickering and Elrod may easily
brutal, sometimes more so than contests in overlap in situations involving campaign
the general election, and animosity speech against one’s public employer.
between candidates is likely to result. See
C.
Robertson v. Fiore, 62 F.3d 596, 600 (3d
Cir. 1995);
Wilbur, 3 F.3d at 219. The Supreme Court has not yet
Recognizing this, other courts of appeals directly confronted a situation where a
have broadened the definition of “political policymaker is terminated both for
affiliation” to include commonality of political affiliation and speech. The
political purpose, partisan activity, and District Court here applied the Pickering
political support. See Kaluczky v. City of balancing test to the Sons of Columbus
White Plains,
57 F.3d 202, 208 (2d Cir. letter and the election fraud lawsuit, citing
O’Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712, 718-20 (1996).4
3
Brown listed specific factors in this
determination, including “whether the
4
employee participates in . . . discussions or The Court in O’Hare stated:
other meetings, whether the employee Our cases call for a
prepares budgets or has authority to hire or different, though related, inquiry
fire employees, the salary of the employee, where a government employer
and the employee’s power to control others takes adverse action on account of
and to speak in the name of policymakers.” an employee or service provider’s
787 F.2d at 169. right of free speech. There, we
But the plaintiff in O’Hare was not a
policymaking or confidential employee.
See Rose v. Stephens, 291 F.3d 917, 921
apply the balancing test from
(6th Cir. 2002). Nonetheless, O’Hare
Pickering . . . Elrod and Branti
implied that Pickering balancing should be
involved instances where the raw
used when termination is motivated by
test of political affiliation sufficed
both a public employee’s speech and
to show a constitutional violation,
political affiliation:
without the necessity of an inquiry
more detailed than asking whether A reasonableness analysis will also
the requirement was appropriate for accommodate those many cases,
the employment in question. There perhaps including the one before
is an advantage in so confining the us, where specific instances of the
inquiry where political affiliation employee’s speech or expression,
alone is concerned, for one’s which require balancing in the
beliefs and allegiances ought not to Pickering context, are intermixed
be subject to probing or testing by w ith a politic a l a f f iliation
the government. It is true, on the requirement. In those cases, the
other hand, as we stated at the balancing Pickering mandates will
outset of our opinion, supra, at 714, be inevitable.
that the inquiry is whether the
518 U.S. 712, 719-20 (1996). Not only the
affiliation requirement is a
balancing, but the outcome as well, may be
reasonable one, so it is inevitable
inevitable because the public employer’s
that some case-by-case adjudication
interest may weigh so heavily that no other
will be required even where
outcome is possible.5 The speech may
political affiliation is the test the
government has imposed. A
reasonableness analysis will also requires in the administration and
accommodate those many cases, awarding of contracts over the
perhaps including the one before whole range of public works and
us, where specific instances of the the delivery of governmental
employee’s speech or expression, services.
which require balancing in the Id. at 719-20 (citation omitted).
Pickering context, are intermixed
5
with a politica l affiliation For this reason, the Court of Appeals
requirement. In those cases, the for the Sixth Circuit recently held that
balancing Pickering mandates will “where a confidential or policymaking
be inevitable. This case-by-case public employee is discharged on the basis
process will allow the courts to of speech related to his political or policy
consider the necessity of according views, the Pickering balance favors the
to the government the discretion it government as a matter of law.” Rose, 291
adversely affect the public employer’s p o l i ti c a l l y l o y a l e m p l o y e e s t o
ability to effectively run its operations and policymaking positions converges with its
accomplish its objectives. At the same interest in running an efficient workplace.
time, the speech may impair the public
D.
employer’s ability to implement policies
through loyal subordinates. Hall, 856 F.2d To establish a First Amendment
at 263. violation under Pickering, Curinga must
demonstrate that his speech involved a
In these situations, it may be
matter of public concern, and that his
difficult to distinguish where the efficient
interest in the speech outweighs any
functioning of the government workplace
poten tial disruption of the work
ends and the employee’s loyalty and ability
environment and decreased efficiency of
to implement the public employer’s
the office. Curinga openly campaigned
policies begins. See McEvoy v. Spencer,
against the “Regular Team” Democrats by
124 F.3d 92, 99 (2d Cir. 1997). In this
writing the Sons of Columbus letter and
sense, Elrod considerations of fidelity may
urging members of the organization to
easily converge with the government’s
vote for his ticket and against his
interest in managing an efficient
opponents. His speech and conduct
workplace under the Pickering spectrum.
involved a matter of public concern.6 See
See, e.g., Kinsey v. Salado Indep. Sch.
Green, 105 F.3d at 885-86 (“A public
Dist.,
950 F.2d 988, 994 (5th Cir. 1992)
employee’s speech involves a matter of
(en banc) (“[C]ases involving public
public concern if it can be ‘fairly
employees who occupy policymaker or
considered as relating to any matter of
confidential positions fall much closer to
political, social or other concern to the
the employer’s end of the spectrum, where
community’”) (citations omitted). See also
the government’s interests more easily
Bass v. Richards, 308 F.3d 1081, 1088-89
outweigh the employee’s (as a private
(10th Cir. 2002) (holding that speech
citizen).”); Hall, 856 F.2d at 263 (“Given
regarding political elections involves a
the similarity in the bases and
matter of public concern); Brady v. Fort
countervailing interests recognized in
Bend County, 145 F.3d 691, 706-07 (5th
P i c k e rin g and E lrod-B ranti, the
Cir. 1998) (stating that campaigning for a
government interest recognized in the
affiliation cases is also relevant in the
employee speech cases.”). The
6
government’s interest in appointing The District Court found that
Curinga’s letter addressed only a matter of
personal concern. We disagree. The letter
F.3d at 921. Whether or not this can be contained a mixture of personal and public
decided as a matter of law, the matters. For our purposes, however, there
government’s interest in these kinds of was sufficient content of public concern to
cases is likely dispositive. warrant consideration under Pickering.
political candidate relates to a matter of Nor can Curinga prevail under
public concern); Gardetto v. Mason, 100 Elrod-Branti. The District Court held that
F.3d 803, 812 (10th Cir. 1996) (“In the political “affiliation” was a reasonable
spectrum of expression protected by the requirement for Curinga’s position. We
First Amendment, we place great value agree. The duties of the city manager
upon political speech in the electoral required the management of all city
process.”). departments, hiring and firing city
employees, representing the city at
But Curinga cannot establish that
meetings, and implementing policies
his interest in speech outweighed the
promulgated by the city council. No non-
government’s interest in efficiency. See
elective position in the City of Clairton
Baldassare, 250 F.3d at 195; Swineford v.
c a r r i e d g r e a te r p o li c y m a k i n g
Snyder County, 15 F.3d 1258, 1280 (3d
responsibility. Because of Curinga’s
Cir. 1994). Curinga’s campaign against
conduct, the “regular” Democratic council
the candidates who won the election
members had good reason to doubt
impaired the reconstituted city council’s
whether they could rely on him to follow
interest in efficient operations. The record
and implement their policies, or whether
strongly supports this conclusion. As
he would instead “obs truct[] th e
noted, Curinga occupied the most
implementation of policies of the new
sensitive, high-level policy making
administration, policies presumably
appointive position in the City of Clairton,
sanctioned by the electorate.” Elrod, 427
one that required confidentiality and a
U.S. at 367. For these reasons, Curinga’s
close working relationship with city
policy making responsibilities exempt him
council members to effectively implement
from Elrod/Branti protections generally
their policies. Under this set of facts, the
afforded to patronage dismissals.
strong government interest outweighs the
employee’s speech. Pickering, 391 U.S. at Curinga, therefore, cannot prevail
581.7 under either constitutional doctrine.
Although in this case the outcome will be
the same, we believe the dispositive
7
As noted, defendants provided several analysis should fall under the Pickering
reasons for terminating Curinga, including balancing standard.8
Curinga’s prior DUI conviction; his job
performance and track record as City
Manager; his excessive absences during of Clairton.” The District Court believed
the campaign; the Sons of Columbus the Sons of Columbus letter provided the
letter; his suit alleging election fraud; and p r i n c ip a l mo tiv ation b ehin d th e
the desire of the city council to retain a termination.
City Manager “more acceptable and
8
compatible with their policies, beliefs, As noted, the other courts of appeals
desires, and aims for the future of the City have taken somewhat different approaches
III.
To summarize, the Clairton City
to similar fact situations. The Fifth, Tenth Council did not unlawfully terminate
and Eleventh Circuits have applied the Curinga for stumping for the “Action
Pickering test when a policymaker speaks Team” Democrats and against the
against his employer during an election “regular” Democratic candidates.
campaign. See Kinsey, 950 F.2d at 994-96 Although the result is likely to be the
(5th Cir. 1992) (upholding the termination
under Pickering of a school district
superintendent for vocally opposing school opposed her employer’s party and
board members); Kent v. Martin, 252 F.3d endorsed candidates from an opposing
1141, 1142-43 (10th Cir. 2001) (applying party);
Kaluczky, 57 F.3d at 204-05 (2d
Pickering to analyze the termination of a Cir. 1995) (upholding demotion of
deputy clerk who unsuccessfully ran personnel officer under Elrod for actively
against the county clerk); Stough v. endorsing mayor who was not re-elected);
Gallagher,
967 F.2d 1523, 1528-29 (11th
Williams, 909 F.2d at 153-54 (6th Cir.
Cir. 1992) (finding deputy sheriff’s 1990) (upholding termination of city
demotion for supporting political opponent attorney under Elrod for distributing
of sheriff violated deputy sheriff’s First campaign literature that criticized a
Amendment rights under Pickering). subsequently elected member of city
The First, Second, Sixth, and council); Heideman v. Wirsing, 7 F.3d
Seventh Circuits have upheld terminations 659, 662 (7th Cir. 1993) (upholding
or other disciplinary measures taken by the suspension and termination under Elrod of
government under the Elrod/Branti a deputy sheriff who actively campaigned
exception when an employee speaks out against the subsequently elected sheriff);
against his employer during an election Wilbur, 3 F.3d 214, 217-18 (7th Cir. 1993)
campaign. See Rosenberg v. City of (upholding under Elrod unpaid leave for
Everett,
328 F.3d 12, 17-18 (1st Cir. 2003) deputy sheriff who announced his
(upholding termination of television candidacy for office against the current
station director by current mayor under sheriff). The Ninth Circuit allows for
Elrod because the director allowed the disciplinary action against policymakers
former mayor to submit his candidacy for any type of speech under Elrod,
videotape after the station’s established including speech not related to policy
deadline, creating a perceived lack of views or a political agenda. Fazio v. City
political support for the current mayor); & County of San Francisco, 125 F.3d
Regan v. Boogertman,
984 F.2d 577, 581- 1328, 1332 (9th Cir. 1997) (upholding
82 (2d Cir. 1993) (holding that the termination under Elrod of assistant
dismissal of a public employee for district attorney who filed papers to run
“partisan political reasons” was allowable against district attorney in upcoming
under Elrod when the employee actively election).
same under Elrod and Pickering, when
an employee’s speech is intermixed with
political affiliation, the Pickering
balancing standard is the better analysis
to apply. Because the City of Clairton’s
interest in efficient management strongly
outweighs Curinga’s interests, his
political speech in this case is not
protected under Pickering.
IV.
For the reasons stated, we will
affirm the grant of summary judgment
for defendants.
