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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