Harold Werkheiser v. Pocono Township

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-3646

_______________

HAROLD WERKHEISER, individually and in his official

capacity as a supervisor for the Township of Pocono

v.

POCONO TOWNSHIP; FRANK HESS, Supervisor;

HENRY BENGEL, Supervisor

Frank Hess; Henry Bengel,

Appellants

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-13-cv-01001)

District Judge: Hon. A. Richard Caputo

____________

Argued December 8, 2014

BEFORE: VANASKIE, GREENBERG, AND COWEN,

Circuit Judges

(Opinion Filed: March 6, 2015)

_______________

OPINION

_______________

Edward J. Easterly, Esq.

Steven E. Hoffman, Esq. (Argued)

Norris, McLaughlin & Marcus

1611 Pond Road

The Paragon Centre, Suite 300

Allentown, PA 18104

Counsel for Appellants

Michael S. Fettner, Esq.

Cletus P. Lyman, Esq. (Argued)

Michael T. Sweeney, Esq.

Lyman & Ash

1612 Latimer Street

Philadelphia, PA 19103

Counsel for Appellee

COWEN, Circuit Judge.

2

This matter requires us to decide whether elected

officials are entitled to qualified immunity when they retaliate

against a fellow official by denying him reappointment to a

non-elected position because of comments he made in his

capacity as an elected official. Because we conclude that the

contours of the First Amendment right at issue were not

clearly established, we hold that Appellants are entitled to

qualified immunity on their federal claim.1

I.

In 2007, Harold Werkheiser was elected to serve on

the three-member Board of Supervisors within Pocono

Township. His six-year term began in January of 2008 and

was scheduled to expire at the end of 2013. In addition to

Werkheiser, the Board of Supervisors was comprised of

Defendant Frank Hess, who was elected in 2009, and

Defendant Henry Bengel, who was elected in 2011 (together,

“Appellants”). Defendant Pocono Township (the

“Township”), is a Second Class Township within the County

of Monroe, Pennsylvania.

Township Supervisors are permitted to hold positions

of employment with the Township, including Roadmaster.

The Roadmaster, or Director of Public Works, is a Township

1

In denying Appellants’ motion to dismiss, the District

Court allowed both Werkheiser’s federal claim and state law

claim to proceed. Appellants have not appealed the District

Court’s denial of their motion as it pertains to Werkheiser’s

state law claim and review of that decision is not before us.

3

employee responsible for the supervision of all the activities

of the Township Road Department and the Township Parks

and Recreation Department. In 2008, Werkheiser was

appointed Roadmaster by the Board of Supervisors.

Hess began receiving wages in 2011 and, in 2012,

assumed administrative duties previously performed by a

predecessor supervisor. He received approximately $36,000

per year in salary, health insurance, and other employee

benefits, and holds the titles of Chairman of the Board of

Supervisors, Secretary, and Treasurer. In 2012, Hess became

temporarily disabled and took leave from the Township for

ten days. During his absence, Frank Froio was selected by a

consultant to the Township to assume Hess’s administrative

duties. Froio was not appointed by the Board of Supervisors.

On February 6, 2012, Bengel made a motion, seconded by

Hess, to hire Froio as Township Administrator. Froio was to

receive compensation of approximately $70,000 annually.

Werkheiser opposed the motion, but it nonetheless carried.

As Froio’s position developed, Hess’s responsibilities

and workload decreased. Hess, however, continued to collect

approximately the same compensation. Werkheiser voiced

his objection to the cost of Froio’s position to the Township

and to the creation of a new position with greater expense.

He also objected to paying Hess when his duties were being

performed by Froio, as well as to the appointment of an

outside grant-writer, who would be performing work that

Werkheiser asserted should be performed by Froio and Hess.

In December of 2012, Appellants decided they no

longer wanted Werkheiser to serve as Roadmaster. Along

4

with several others, they began private deliberations to

discuss denying Werkheiser reappointment for 2013 and to

instead replace him with Bengel. In January of 2013,

Werkheiser was formally denied reappointment as

Roadmaster at a noticed reorganization meeting.

As a result of the decision to not reappoint him,

Werkheiser commenced an action in Pennsylvania state court.

Defendants removed the action to federal court, and

Werkheiser subsequently filed an amended complaint. In that

complaint, Werkheiser asserted a claim for First Amendment

retaliation, as well as a state law claim under the Second

Class Township Code and Pennsylvania Sunshine Law. As to

his First Amendment retaliation claim, Werkheiser alleges

that he was denied his position as Roadmaster as a result of

speech he expressed in his capacity as an elected official

concerning the Board of Supervisors’ overpayment for

administrative duties.

II.

Appellants filed a motion to dismiss both claims,

asserting, among other things, that they were entitled to

qualified immunity as to Werkheiser’s federal claim against

them. They argued that because Werkheiser’s speech

concerning Township resources and payments were made in

his official capacity as an elected representative of the

Township, the Supreme Court’s decision in Garcetti v.

Ceballos, 547 U.S. 410 (2006), applied. Accordingly, they

asserted, Werkheiser’s speech was not protected by the First

Amendment, and he was unable to demonstrate the violation

5

of his constitutional rights. For his part, Werkheiser disputed

the applicability of Garcetti, arguing that speech by elected

officials should be treated differently than speech by public

employees, and that, as an elected official, his speech was

entitled to First Amendment protection not granted to public

employees. The District Court agreed with Werkheiser,

noting that there were important differences between the

public employees discussed in Garcetti and elected officials.

It therefore concluded that Werkheiser had established a

constitutional violation.

Appellants also argued that they were entitled to

qualified immunity because the law regarding Werkheiser’s

rights was not clearly established. The District Court rejected

this argument as well. The District Court concluded that the

Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116,

136-37 (1966), clearly established that elected officials are

entitled to exercise their First Amendment rights free from

retaliation. Further explaining that the Supreme Court had

said nothing in Garcetti that overruled or altered its opinion

in Bond, the District Court denied Appellants’ motion to

dismiss. The current appeal followed.

III.

The Supreme Court has established a two-step analysis

that governs whether an official is entitled to qualified

6

immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).2 First,

whether the facts alleged by the plaintiff show the violation of

a constitutional right, and second, whether the right at issue

was clearly established at the time of the alleged misconduct.

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.

2010) (citing Saucier, 533 U.S. at 201). We may address the

two Saucier prongs in either order, at our discretion. Pearson

v. Callahan, 555 U.S. 223, 236 (2009). Because we do not

believe the right at issue here was clearly established, we

begin with the second step.

“A Government official’s conduct violates clearly

established law when, at the time of the challenged conduct,

‘[t]he contours of [ a] right [are] sufficiently clear’ that every

‘reasonable official would have understood that what he is

doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct.

2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987) (all alterations in original)). “In determining

whether a right has been clearly established, the court must

define the right allegedly violated at the appropriate level of

specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.

2012). The Supreme Court recently emphasized that “‘[w]e

do not require a case directly on point’ before concluding that

2

The District Court began its analysis with a

discussion of Werkheiser’s constitutional rights and,

specifically, whether elected officials are entitled to First

Amendment protection for their official speech. Because we

conclude that the law was not clearly established as to the

existence of such a right, we need not probe the merits of the

District Court’s analysis on this point.

7

the law is clearly established, ‘but existing precedent must

have placed the statutory or constitutional question beyond

debate.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting al-

Kidd, 131 S. Ct. at 2083).

A. It was Not Clearly Established that an

Elected Official’s Speech is Entitled to

First Amendment Protection

The District Court concluded that Appellants are not

entitled to qualified immunity because “a reasonable official

would have understood that retaliating against Werkheiser

because he spoke as an elected official on issues concerning

the Township would violate his constitutional rights.”

Werkheiser v. Pocono Twp., 13-cv-1001, 2013 WL 4041856,

at *14 (M.D. Pa. Aug. 8, 2013). We disagree, and conclude

that Werkheiser’s First Amendment rights, as an elected

official, were not sufficiently defined as to warrant denying

8

Appellants qualified immunity.3 We pause here to emphasize

that we do not today decide whether Garcetti is applicable to

elected officials’ speech or not. Rather, we conclude only

that the law was not clearly established on this point.

In Garcetti, a non-elected deputy district attorney

brought a section 1983 action alleging First Amendment

retaliation against the county and his supervisors. In his

capacity as deputy district attorney, he had prepared a

memorandum discussing concerns he had about potential

government misconduct. Allegedly motivated by the

expressions in his memorandum, the deputy district attorney

was then subjected to a series of retaliatory employment

actions. In its opinion, the Supreme Court drew a distinction

between a “public employee,” like the attorney, and an

ordinary citizen who speaks out for him or herself. Garcetti,

547 U.S. at 417. In the case of public employees, restrictions

3

Although not discussed by the District Court or

mentioned in any party’s brief before this court, Werkheiser

suggested at oral argument that we apply the holdings of two

First Amendment freedom of association cases, Elrod v.

Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S.

507 (1980), whereby the Supreme Court explained that an

individual may establish a retaliation claim based on an

adverse action taken against him or her based on political

association. However, these cases are inapposite here, where

Werkheiser has not advanced any freedom of association

claim and instead bases his claim against Appellants entirely

on his contention that they violated his First Amendment

freedom of speech.

9

on speech are permissible because, “when a citizen enters

government service, the citizen must accept certain

limitations on his or her freedom.” Id. at 418. Accordingly,

the Court held that the plaintiff’s memorandum was not

protected speech under the First Amendment. Id.

Of course, “public employees do not surrender all their

First Amendment rights by reason of their employment.

Rather, the First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen

addressing matters of public concern.” Id. at 417. Thus, the

Supreme Court explained, “[s]o long as employees are

speaking as citizens about matters of public concern, they

must face only those speech restrictions that are necessary for

their employers to operate efficiently and effectively.” Id. at

419.

Conversely, the Court noted that restrictions on speech

by public employees were less problematic than restrictions

on speech by ordinary citizens. This is so, in part because,

“[e]mployers have heightened interests in controlling speech

made by an employee in his or her professional capacity.

Official communications have official consequences, creating

a need for substantive consistency and clarity. ” Id. at 422.

Indeed, some restrictions on employee speech were deemed

necessary because “[s]upervisors must ensure that their

employees’ official communications are accurate,

demonstrate sound judgment, and promote the employer’s

mission.” Id. at 422-23. The court reasoned that greater

restrictions on public employees’ speech than on ordinary

citizens are therefore permissible because such restrictions

10

“simply reflect[ ] the exercise of employer control over what

the employer itself has commissioned or created.” Id. at 422.

Many of the reasons for restrictions on employee

speech appear to apply with much less force in the context of

elected officials. Werkheiser’s speech as an elected official is

not subject to prior review or approval. To use Garcetti’s

language, his speech is neither “controlled” nor “created” in

the same way that an employer controls the speech of a

typical public employee. And, as the Supreme Court

admonished, “[p]roper application of [its] precedents . . .

leads to the conclusion that the First Amendment does not

prohibit managerial discipline based on an employee’s

expressions made pursuant to official responsibilities.” Id. at

424 (emphasis added). But of course, there is no truly

comparable analog to “managerial discipline” when

discussing retaliation between elected officials.

And, because elected officials to a political body

represent different constituencies, there would seem to be far

less concern that they speak with one voice. In fact, debate

and diversity of opinion among elected officials are often

touted as positives in the public sphere. See Bond, 385 U.S.

at 136-37 (“Legislators have an obligation to take positions

on controversial political questions so that their constituents

can be fully informed by them . . . also, so [constituents] may

be represented in governmental debates by the person they

have elected to represent them.”).

Moreover, as the District Court here highlighted, the

notion that speech pursuant to a public employee’s “official

11

duties” is afforded no protection under the First Amendment

could have odd results if applied to elected officials. Relying

on another district court opinion from this circuit, the court

noted that “if Garcetti applied to elected officials, speaking

on political issues would appear to be part of an elected

official’s ‘official duties,’ and therefore unprotected. But

protection of such speech is the ‘manifest function’ of the

First Amendment.” Werkheiser, 2013 WL 4041856, at *9

(quoting Zimmerlink v. Zapotosky, No. 10-237, 2011 U.S.

Dist. LEXIS 53186 (W.D. Pa. Apr. 11, 2011)) (citing Bond,

385 U.S. at 135). Of course, Appellants may well have been

exercising a competing First Amendment right to make a

political statement by removing Werkheiser. See Blair v.

Bethel Sch. Dist., 608 F.3d 540, 545 (9th Cir. 2010) (noting

that “almost all retaliatory actions can be expressive” and

that, while an elected official may have the right to criticize

other officials for their votes, the elected officials he is

criticizing “had the corresponding right to replace [him] with

someone who, in their view, represented the majority view.”).

We are also sensitive to the fact that Supreme Court

precedent prior to Garcetti suggests that Werkheiser’s speech

may be entitled to some degree of First Amendment

protection. In Bond v. Floyd, the Supreme Court held that an

elected official’s First Amendment rights were violated when

the Georgia House of Representatives refused to seat him

because of statements he had made criticizing the Vietnam

War. 385 U.S. at 135-136. The Court noted that the

“manifest function of the First Amendment in a representative

government requires that legislators be given the widest

latitude to express their views of policy” and “debate on

12

public issues should be uninhibited, robust, and wide-open.”

Id. Indeed, the Court noted that it was part of a legislator’s

official duties “to take positions on controversial political

questions so that their constituents can be fully informed by

them, and be better able to assess their qualifications for

office; also so they may be represented in governmental

debates by the person they have elected to represent them.”

Id. at 136-37. The Supreme Court did not deem it necessary

to address or revisit Bond in deciding Garcetti.

Notwithstanding then, that the underlying rationale in

Garcetti appears, to some extent, inapplicable to elected

officials, we take seriously the Court’s explicit

pronouncements that the “controlling factor” in that case was

that the expressions at issue “were made pursuant to [the

plaintiff’s] duties as a calendar deputy” and that the

“significant point is that the memo was written pursuant to

[the plaintiff’s] official duties. Restricting speech that owes

its existence to a public employee’s professional

responsibilities does not infringe any liberties the employee

might have enjoyed as a private citizen.” Garcetti, 547 U.S.

at 421-22. Indeed, the Court’s stated holding was simply that

“when public employees make statements pursuant to their

official duties, the employees are not speaking as citizens for

First Amendment purposes, and the Constitution does not

insulate their communications from employer discipline.” Id.

While there may be sound reasons to assert that Garcetti does

not apply to elected officials’ speech, we cannot accept the

District Court’s inherent conclusion that it is “beyond debate”

that this was clearly established law at the time of

13

Werkheiser’s non-appointment. Stanton, 134 S. Ct. at 5

(quoting al-Kidd, 131 S. Ct. at 2083).4

4

Werkheiser argues that even if Garcetti’s “public

employee” analysis applies to elected officials, it is not

applicable to him because Town Supervisors are not

employees of the town.

14

In this regard, we note the unsettled nature of the law

amongst both the circuit courts and the district courts. In

Rangra v. Brown, 566 F.3d 515, 518 (5th Cir. 2009), a Fifth

Circuit panel grappled with whether elected officials’ speech

Relying on two lower state court cases, he argues that

Garcetti does not apply to township supervisors because they

are not “employees” of the town. However, Werkheiser

misconstrues the law. In those cases, the courts were merely

attempting to determine whether town supervisors were

employees for purposes of two specific state statutes: the state

Workmen’s Compensation law, Savage v. Mt. Pleasant Twp.

Supervisors, 181 A. 519, 520 (Pa. Super. Ct. 1935), and a

particular provision of the Second Class Township Code

authorizing premium payments, Appeal of Auditor’s Report of

Muncy Creek Twp., 520 A.2d 1241, 1245-46 (Pa. Cmwlth.

1987). The state courts’ decisions did not speak to whether

town supervisors are employees in any broader sense and, in

the latter case, noted that the provision at issue must not have

been intended to include supervisors because it would have

granted them “unfettered authority . . . to approve additional

compensation for themselves.” Appeal of Auditor’s Report of

Muncy Creek Twp., 520 A.2d at 1245-46. In any event, the

mere fact that, in certain contexts, state courts have declined

to deem Town Supervisors employees in no way compels the

conclusion that they are not public employees for purposes of

First Amendment analysis. Moreover, the question is not

necessarily whether elected officials are public employees,

but rather whether they are sufficiently similar to public

employees that Garcetti governs and they are not entitled to

First Amendment protection.

15

is entitled to First Amendment protection in the wake of

Garcetti, albeit outside of the retaliation context. In rejecting

Garcetti’s application to elected officials, the court concluded

that “when the state acts as a sovereign rather than as an

employer, its power to limit First Amendment freedoms is

much more attenuated. That is because a state’s interest in

regulating speech as a sovereign is ‘relatively subordinate . . .

[as] [t]he government cannot restrict the speech of the public

at large just in the name of efficiency.” Id. at 522-23 (citing

Waters v. Churchill, 511 U.S. 661, 675 (1994)). In holding

that elected officials' speech is entitled to First Amendment

protection, the court permitted the officials to challenge

certain provisions of the Texas Open Meetings Act that

criminalized the discussion of public matters by a quorum of

public officials when outside of an open meeting. Id. at 522;

see also Siefert v. Alexander, 608 F.3d 974, 981 (7th Cir.

2010) (applying strict scrutiny to certain provisions of

Wisconsin Code of Judicial Conduct and engaging in a

balancing test for others, but taking for granted that an elected

state court judge’s speech is entitled to some degree of First

Amendment protection).

The continuing viability of the panel's decision in

Rangra is, however, somewhat in doubt. Following

publication of its decision, the Fifth Circuit reheard the case

en banc, and, in a one sentence opinion devoid of any

analysis, simply ordered the case dismissed as moot. See

Rangra v. Brown, 584 F.3d 206, 207 (5th Cir. 2009) (en

banc). Moreover, at least one circuit court has expressed

skepticism that elected officials’ speech is entitled to any

protection whatsoever. See Parks v. City of Horseshoe Bend,

16

480 F.3d 837, 840 n.4 (8th Cir. 2007) (stating in a footnote

without analysis that the elected official-plaintiff’s speech

would not be protected under the First Amendment if it was

made in the course of her official duties).5

There is also substantial disagreement among the

district courts. Compare Hogan v. Twp. of Haddon, No. 04-

2036, 2006 WL 3490353 (D.N.J. Dec. 1, 2006), aff’d on other

grounds, 278 F. App’x 98 (3d Cir. 2008) (concluding that

defendant was entitled to qualified immunity on plaintiff’s

First Amendment claim because Garcetti applies to elected

officials’ speech and speech made in plaintiff’s capacity as

elected official was therefore not entitled to First Amendment

protection); Hartman v. Register, No. 06-cv-33, 2007 WL

915193 (S.D. Ohio Mar. 26, 2007) (dismissing First

Amendment retaliation claim on substantially same grounds);

Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606

(W.D. Mich. 2009) (granting defendants’ motion for

summary judgment on substantially same grounds), with

Zimmerlink, No. 10-237, 2011 U.S. Dist. LEXIS 53186, at

5

We note as well that we have not yet addressed

Garcetti’s application to elected officials. We had occasion

to do so, but, having affirmed the district court’s decision on

other grounds, expressly declined to reach the issue. See

Hogan v. Twp. of Haddon, 278 F. App’x at 102 n.1 (noting

that although the plaintiff had “argued that the District Court

improperly applied the Supreme Court’s precedent in Garcetti

v. Ceballos . . . because we conclude that [plaintiff’s] First

Amendment rights were not violated, we need not reach her

Garcetti arguments.”).

17

*6-7, 8-11 (denying defendants’ motion to dismiss because

“governmental interest in regulating speech of public

employees to promote efficient operations does not apply to

speech of an elected official”); Carson v. Vernon Twp., Civ.

No. 09-6126, 2010 WL 2985849, at *14 (D.N.J. July 21,

2010) (denying motion to dismiss claim of deprivation of free

speech, at least in part, because elected official’s political

expression on township matters was “unquestionably

protected under the First Amendment.”).

Although the Supreme Court has noted that qualified

immunity is not the guaranteed product of disuniform views

of the law, we find that the well-reasoned decisions on both

sides render the law sufficiently unclear at the time of

Appellants’ actions so as to shield them from liability.

Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364,

378 (2009).

B. It was Not Clearly Established that the Type

of Retaliation at Issue Here Would Violate

the First Amendment

In addition, we hold that the law was not clearly

established that the kind of retaliation Appellants engaged in

against Werkheiser violated his First Amendment rights.

Werkheiser essentially asks this court to declare that a

politically motivated act, undertaken by a majority of his

fellow elected Board of Supervisors, pursuant to their proper

authority, nonetheless violates the First Amendment if it is

taken in retaliation for speech made in his capacity as an

18

elected official. As this court has indicated, however, not all

retaliation violates the First Amendment. See Thomas v.

Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (noting

that the First Amendment requires “retaliatory action

sufficient to deter a person of ordinary firmness from

exercising his constitutional rights.”) (citation omitted)

(emphasis added).

To be sure, Bond, which the District Court heavily

relied on, signified that one kind of very serious retaliation by

elected officials is unlawful -- the exclusion of a duly elected

official from office. But we discern nothing in Bond that

suggests the Court intended for the First Amendment to guard

against every form of political backlash that might arise out

of the everyday squabbles of hardball politics. See, e.g.,

Camacho v. Brandon, 317 F.3d 153, 162 (2d Cir. 2003)

(concluding that a city council member’s aide could not bring

a First Amendment retaliation claim for his dismissal, in part,

because it would “subject to litigation all manners and

degrees of politically motivated, retaliatory conduct directed

at public officials.”); Zilich v. Longo, 34 F.3d 359, 363 (6th

Cir. 1994) (“The First Amendment is not an instrument

designed to outlaw partisan voting or petty political bickering

through the adoption of legislative resolutions.”). Rather, as

other courts to consider the issue have concluded, the First

Amendment may well prohibit retaliation against elected

officials for speech pursuant to their official duties only when

the retaliation interferes with their ability to adequately

perform their elected duties. See Blair, 608 F.3d at 545 n.4

(Ninth Circuit opinion noting that retaliation is unlawful

when it has the “effect, deleterious to democracy, of

19

nullifying a popular vote” or otherwise “deprive[s] [an

elected official] of authority he enjoyed by virtue of his

popular election.”).

Our opinion in Monteiro v. City of Elizabeth, 436 F.3d

397, 404 (3d Cir. 2006), similarly offers Werkheiser little

assistance. In that case, an elected member of the New Jersey

City Council claimed that his First Amendment rights were

violated when he was ejected from a Council meeting,

allegedly for expressing a particular viewpoint. The

defendants then sought to cloak themselves in the doctrine of

qualified immunity. On appeal, we were asked to decide only

whether, when entitlement to qualified immunity depends on

a disputed issue of fact – in that case, whether the plaintiff

had in fact been ejected for expressing a particular viewpoint

-- it is proper to submit that question to the jury. In affirming

the district court’s decision to deny summary judgment and

allow a jury to decide that question, we noted that “[i]t is

clearly established that when a public official excludes an

elected representative or a citizen from a public meeting, she

must conform her conduct to the requirements of the First

Amendment.” Id. But Monteiro, like Bond, focused on an

elected representative whose ability to fulfill his elected

obligations was purposefully impaired when he was

prevented from speaking at a Council meeting. Our opinion

says nothing about elected officials’ First Amendment rights

when the action at issue does not involve any such

impairment.

We also note in this regard decisions from the Fifth

and Ninth circuits. In Blair v. Bethel Sch. Dist., the Ninth

20

Circuit addressed whether an elected official could

successfully claim retaliation under the First Amendment for

speech made in his capacity as an elected official. 608 F.3d

at 541. The plaintiff in Blair was a publicly elected member

of the school board, who had also been elected by his peers to

serve as vice president. In his capacity as a member of the

school board, Blair served as a persistent critic of the school

district superintendent. Eventually, Blair’s fellow board

members voted to remove him as vice president. Id. at 543.

Blair then sued, alleging that the Board’s conduct constituted

impermissible retaliation against him for exercising his First

Amendment rights.

The Ninth Circuit held that retaliation against an

elected official is largely not actionable when it is at the

hands of his peers in the political arena. Id. The court

emphasized that Blair, like Werkheiser here, had been

removed from a position “by the very people who elected him

to the position in the first place.” Id. at 544. Importantly, the

Ninth Circuit noted that “despite [Blair’s] removal as Board

vice president, he retained the full range of rights and

prerogatives that came with having been publicly elected.”

Id. Absent such a deprivation, the court refused Blair’s

invitation to more broadly conclude “that the First

Amendment prohibits elected officials from voting against

candidates whose speech or views they don’t embrace.

Experience and political reality convince us this argument

goes too far.” Id. at 545. Accordingly, the court concluded

that the Board’s action did not amount to retaliation in

violation of the First Amendment. Id. at 546.

21

In Rash-Aldridge v. Ramirez, 96 F.3d 117 (5th Cir.

1996), the plaintiff was an elected member of the city council

who was later appointed to represent the council on a local

metropolitan planning board. In her capacity as an appointed

member of the body, she wrote a letter taking a position at

odds with one maintained by the city council. As a result of

her actions, the council removed her from her appointed

position and she sued. Id. at 118-119.

The plaintiff in Rash-Aldridge concededly made the

statements for which she was removed as an appointed

representative of the council, and not, as is alleged here, in

her capacity as an elected representative. However, that fact

was immaterial to the Fifth Circuit's decision. Rather, in

concluding that the plaintiff’s First Amendment rights had not

been violated, the Fifth Circuit emphasized that her removal

from the appointed office had “no implication of [her]

fundamental rights as an elected official.” Id. at 119. “Her

capacity as an elected official was not compromised because

the council did not try to remove her from her seat on the

council nor take away any privileges of that office because of

what she said or did.” Id.

The Fifth Circuit did not address whether the

plaintiff’s speech would be protected under the First

Amendment. But that is of little moment. In Rash-Aldridge,

as in Blair, the court drew an important distinction between

types of retaliation against elected officials: the type of

retaliation at issue in Bond, which impedes elected officials'

ability to serve as effective representatives, and is, therefore,

impermissible; and the type of retaliation at issue here, where

22

an elected official is removed from an unrelated position that

does not interfere with his or her role as an elected official

and that, accordingly, does not run afoul of the First

Amendment.6

To be sure, as we indicated in our discussion on the

applicability of Garcetti to elected officials’ speech, we do

not now decide these constitutional issues and what

retaliation against elected officials, if any, violates the First

Amendment. Rather, we consider this legal landscape to

decide whether Appellants are entitled to qualified immunity.

Contrary to the District Court, we conclude that these

opinions suggest that elected officials who are retaliated

against by their peers have limited recourse under the First

Amendment when the actions taken against them do not

interfere with their ability to perform their elected duties.

6

We are mindful that the underlying facts adduced at

trial in Squires v. Bonser, 54 F.3d 168, 171 (3d Cir. 1995), a

case cited by Werkheiser and decided by a panel of this court

that included the undersigned, bear a striking resemblance to

the current action. Nonetheless, on appeal in Squires, the

only question before us was whether the district court’s denial

of the former Roadmaster’s request for reinstatement as a

remedy was inappropriate. As a result, the analysis we

employed in Squires offers little guidance here. Nonetheless,

the fact that a jury awarded a plaintiff in Werkheiser’s

position damages on a nearly identical claim – a judgment

seemingly at odds with the remainder of the case law on this

issue – may suggest the unsettled nature of the law as to this

issue as well.

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There is no allegation here that the failure to reappoint

Werkheiser as Roadmaster in any way excluded him from

Town Supervisors’ meetings, interfered with his rights,

privileges, or responsibilities as an elected official, or

hindered his ability to fulfill his elected duties. Indeed, the

complaint indicates that although he was not reappointed as

Roadmaster in January of 2013, his term as Township

Supervisor did not expire until the end of that year and there

is no indication that he did not fully and ably serve until the

completion of his term. Thus, unlike in Bond or Monteiro,

where an elected body attempted to prevent an official from

carrying out the duties bestowed upon him by his

constituents, here, the Board of Supervisors merely declined

to offer Werkheiser a position that was wholly unrelated to

his position as an elected official and that it had provided him

with in the first place. Against this legal backdrop, and under

these circumstances, it is not beyond debate that a reasonable

official in Appellants’ position would have understood that

retaliating against Werkheiser by denying him reappointment

would violate his constitutional rights. As a result,

Appellants are entitled to qualified immunity.

IV.

For the foregoing reasons, we vacate the District

Court’s order and judgment dated August 8, 2013 and remand

for further proceedings consistent with this opinion.

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