Bonds, Michael v. Milwaukee County

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2282

Michael Bonds,

Plaintiff-Appellant,

v.

Milwaukee County, Karen Ordinans,

William Hart and Thomas Kuzma,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97 C 921--Joseph P. Stadtmueller, Chief Judge.

Argued October 14, 1999--Decided March 28, 2000

Before Harlington Wood, Jr., Cudahy and Kanne, Circuit

Judges.

Kanne, Circuit Judge. Defendant Milwaukee County

argues that this is a textbook case of protected

employment action under the policymaking employee

exception to the First Amendment. Plaintiff

Michael Bonds publicly criticized his government

employer on a matter of public concern, while

serving in a "policymaking" position, and

suffered adverse employment treatment based on

his speech. Indeed, if that was the case without

more, we would apply the policymaking employee

exception first enunciated in Elrod v. Burns, 427

U.S. 347, 367-68 (1976), in a straightforward

affirmance for the County.

The facts, however, are not so simple. While

working for the City of Milwaukee, Bonds appeared

at a public meeting and criticized a program that

the City adopted the previous day as "sinister"

and "pitting black against white." Based on this,

the County of Milwaukee rescinded its offer of

employment to Bonds. Thus, Bonds criticized the

City of Milwaukee, his government employer at the

time, but received adverse action from a

different government body, the County of

Milwaukee, for whom Bonds was to begin employment

in two weeks.

The policymaking employee exception does not

cover a government entity’s refusal to hire based

on the prospective employee’s criticism of a

different government entity for whom he had

worked. Nonetheless, we apply the balancing test

of First Amendment and government employer

interests from Pickering v. Board of Education,

391 U.S. 563 (1968), and find that the County’s

decision not to hire Bonds was justified by its

interests in government efficiency and workplace

harmony. We affirm judgment for the County.

I. History

The Community Development Block Grant Committee

for the City of Milwaukee ("City") is an elected

body of ten officials that makes all policy

decisions regarding the distribution of Community

Development Block Grant ("CDBG") funds received

by the City from the federal government. Michael

Bonds, who had endured a decade of postgraduate

study on the CDBG program, was a natural fit as

senior fiscal analyst for the Block Grant

Committee. In that position, Bonds evaluated

policy proposals for the distribution of CDBG

funds and oversaw the allocation of $30 million

in federal funding.

In the spring of 1997, Milwaukee Mayor John

Norquist proposed a novel method for the

distribution of CDBG money, called the

Neighborhood Strategic Planning Process ("NSPP").

The NSPP restructured the distribution process by

dividing Milwaukee into seventeen service areas

within each of which community groups would

compete for portions of their respective area’s

funding allocation. Pursuant to his duties for

the City, Bonds researched the NSPP and became a

staunch opponent. Bonds authored a highly

critical report, dated July 14, 1997, condemning

the NSPP as "seriously flawed" and warning that

it "pits poor people (black, white, and

hispanics) on the southside of the city against

those on the northside." Despite Bonds’s report

and amid intense public scrutiny focused on what

Bonds testified was "the hottest issue in City

government during that period," the City adopted

the NSPP in final form on July 25, 1997.

Unhappy with his role at the City, Bonds had

been contemplating a move out of city government

and had applied for employment as a research

analyst with the Milwaukee County Board of

Supervisors ("County" or "Board of Supervisors").

Karen Ordinans, chairperson of the Board of

Supervisors, interviewed Bonds after Bill Hart,

Ordinans’s chief of staff, selected Bonds as one

of five finalists for the position from more than

seventy applicants.

During the hour-long interview, Ordinans told

Bonds that she "expected staff to be providers of

information, to be objective about the research

and analysis and not get into the political part

of debating issues and making policy decisions."

Bonds replied that "he knew that whether he

disagreed or agreed with a decision made by the

County Board, that it was not his place to

publicly comment on it or get into it." Impressed

with Bonds’s experience and demeanor, Ordinans

offered the position to him around July 23, 1997.

Bonds accepted her offer in a letter dated July

25, 1997, and gave the City his notice of

resignation, effective August 8, 1997.

On July 26, 1997, one day after Bonds accepted

the position with Milwaukee County, Bonds

participated as a panelist in a "Community

Brainstorming Conference" on the NSPP at the

request and in place of Alderman Fred Gordon. The

forum, held at a Milwaukee church, featured five

speakers offering alternate viewpoints on the

block grant program and the NSPP. The schedule

for the forum listed Bonds as a "Community

Development Policy Committee Analyst." At trial,

the parties disputed the substance of Bonds’s

remarks at the forum, but the district court

determined that Bonds was openly critical of the

NSPP as "sinister" and attacked both the City,

still his employer at the time, and Mayor

Norquist. The Milwaukee Journal Sentinel reported

these events in its July 27, 1997, edition as

follows:

City analyst decries block grant funds shift

A Common Council decision to shift $660,000 in

Community Development Block Grant money from

north side neighborhoods to some on the south

side is "sinister" and should result in an

attempt to recall Mayor John Norquist if he does

not veto it, a city analyst told an applauding

north side audience Saturday.

"Anyone who is concerned about racial harmony

should be at City Hall raising hell," said

Michael Bonds, an analyst for the Block Grant

Policy Committee, at a meeting Saturday of the

Community Brain Storming Conference. "This is

pitting black against white when we should be

working together."

* * *

Bonds, who said he is quitting his city job to

take a similar position with the Milwaukee County

Board, was one of six panelists at the session

held at St. Matthew’s C.M.E. Church, 2944 N. 9th

St. He urged people to call Norquist and demand

that he veto the measure and to file protests

with the U.S. Department of Housing and Urban

Development. He also called on African-Americans

serving on the block grant task force to resign

in protest.

Reports of Bonds’s performance sparked immediate

outrage at Milwaukee County. Two county

supervisors, Daniel Diliberti and Jim McGuigan,

called Ordinans to voice concerns about Bonds’s

future employment with the County. Diliberti

testified that he left a message for Ordinans

saying that he would have found it "very

difficult to work with [Bonds] if he was giving

his opinion or would criticize the policy-making

body that he was working for." He explained, "I

wouldn’t want staff on the County Board that

disagreed with my decision and then publicly

criticize[d] me for it." McGuigan testified that

he left a message for Ordinans expressing concern

that Bonds was "trying to be a policymaker" and

warning that the County "didn’t need a 26th

supervisor." Another county supervisor, Robert

Krug, was "shocked" by the reports of Bonds’s

conduct and opined to Hart that Bonds’s

statements "were very wrong, and [he] would be

very concerned about having somebody on staff

that would be willing to make statements like

that publicly in the press."

Alarmed, Hart called Bonds on July 28, 1997, to

investigate the events described in the Milwaukee

Journal Sentinel. Bonds told Hart that the

newspaper account reported his comments out of

context but admitted that the "main thrust" of

the article was correct. Bonds explained that he

was simply trying to inform the community about

the NSPP and present it with different options

for protest. Later that day, in an attempt to

allay Hart’s concerns, Bonds faxed several

documents to Hart including a written apology to

Mayor Norquist and a memorandum to the Milwaukee

Common Council clarifying his comments at the

forum.

Ordinans was "very shocked" by Bonds’s conduct

at the forum. Ordinans hired Bonds for the

trusted analyst position believing that Bonds

would be discreet and reserve his personal

misgivings from public attention. Yet Bonds

displayed "extremely poor judgment" in openly

criticizing a decision of the policymaking body

for which he worked and making inflammatory

comments regarding a politically controversial

matter on which he had worked. Ordinans felt that

"if this guy is going to question the Common

Council as a policy-making body, he could

certainly do it again and question a policy

decision that was going to be made by the

Milwaukee County Board." She explained at trial

that his behavior "immediately sent signals to

[her] that [she] was going to have a big problem

on [her] hands if this person came on board."

Indeed, Bonds’s own superior Alderman Gordon was

stunned by Bonds’s inappropriate "diatribe" that

"created a fire storm" of unwanted political

controversy. Gordon explained that he had to

perform "damage control" and was "besieged with

phone calls" for days regarding the incident.

Gordon felt that Bonds certainly spoke on his own

behalf because he "never said to Mr. Bonds to

criticize the process as being sinister, [he]

never called for Mr. Bonds to state that the

Mayor should be recalled, [he] never said

anything like that."

Furthermore, Ordinans believed that Bonds would

cause dissension in her workplace. Bonds’s

performance was widely publicized, and Ordinans

felt that "the staff would have had resentment"

because "[t]hey do not conduct themselves as Mr.

Bonds did." Particularly given the small size of

her workplace, with only seven staffers serving

twenty-five supervisors, Ordinans sought "a staff

that works harmoniously as a team" and needed

"staff that any supervisor could feel comfortable

and confident going to." Yet several county

supervisors already expressed skepticism that

they would be able to work with Bonds. Hart

testified at trial that Bonds "would not have

started his tenure at the County Board of

Supervisors with a great degree of credibility,

and there were Supervisors who . . . from day one

would probably not trust Mr. Bonds." After

considering the concerns of Diliberti, McGuigan,

Krug and Hart, Ordinans decided to withdraw the

offer of employment. She feared that hiring Bonds

would turn out to be a "disaster" and explained

at trial, "If our seven research staff were out

in the community conducting themselves this way,

my job would be complete chaos."

On July 31, 1997, worried that Bonds might be

without a job once she withdrew her offer,

Ordinans called the City to confirm that Bonds

would be able to retain his job there. Satisfied

that Bonds could continue with the City, Ordinans

asked Hart to call Bonds and withdraw the offer

of employment, which he did that day.

A week later, on August 7, 1997, Bonds sued the

County in Milwaukee County Circuit Court under 42

U.S.C. sec. 1983 alleging that the County

withdrew its employment offer because of Bonds’s

public comments on July 26, 1997, in violation of

the First Amendment. Bonds also pleaded two state

law claims: wrongful termination and intentional

interference with a prospective contractual

relationship. The County removed the suit under

28 U.S.C. sec. 1441 to the Eastern District of

Wisconsin and moved for summary judgment on all

three counts. On April 20, 1998, the district

court denied summary judgment on Bonds’s First

Amendment claim but dismissed both Bonds’s state

law claims. Exactly one year later on April 20,

1999, after a bench trial, the district court

rendered judgment for the County on Bonds’s First

Amendment claim, ruling that Milwaukee County’s

interests as an employer outweighed Bonds’s free

speech interests. Bonds now appeals three

district court findings of fact and the judgment

against him.

II. Analysis

A. Findings of Fact

To begin, we address Bonds’s challenge to the

following district court findings of fact: (1)

Bonds’s comments created substantial disruption

for the City; (2) Alderman Gordon viewed Bonds’s

comments as inflammatory and inappropriate and

requested an apology from Bonds; (3) Bonds issued

apologies to the Common Council and Mayor

Norquist for his comments at the forum. We will

reverse the district court’s findings of fact

only if we are convinced that those findings are

clearly erroneous. See Hudson v. Burke, 913 F.2d

427, 431 (7th Cir. 1990).

None of these challenged findings constitutes

clear error. Bonds contends that the first two

findings are unsupported by the record, but both

derive directly from the deposition testimony of

Alderman Gordon. Gordon explained unequivocally

in his deposition that Bonds’s comments were

absolutely inappropriate and sparked a "fire

storm" of outrage that besieged him with phone

calls for several days. Although Gordon did not

testify that he demanded an apology, Gordon asked

Bonds to explain himself, and Bonds immediately

apologized for his remarks at the forum.

Regarding the third finding of fact, Bonds argues

that Bonds’s letters to the Common Council and

Mayor Norquist were not "apologies," but rather

clarifications of his comments at the July 26

forum. Bonds’s private intent notwithstanding,

the district court reviewed the letters and found

that these letters, which expressed Bonds’s

regret for his conduct at the forum, constituted

apologies to the Council and the Mayor. This was

not clear error.

B. First Amendment Retaliation

Bonds’s central claim on appeal is that the

County violated his First Amendment rights by

discriminating against him based on his speech

and conduct at the July 26 community forum.

Bonds’s claim highlights the fact that the First

Amendment places the government in two

potentially conflicting roles with respect to its

public employees. The government qua government

owes public employees the First Amendment

protections that it owes all citizens. Although

public employees once forfeited First Amendment

protection by virtue of their employment with the

government, see Adler v. Board of Educ., 342 U.S.

485 (1952); McAuliffe v. Mayor of New Bedford, 29

N.E. 517 (Mass. 1892), this is no longer so.

Speech by government employees, completely

divorced from the employment context, is

protected under the same standard as speech by

those who are not government employees. See Perry

v. Sindermann, 408 U.S. 593, 597 (1972);

Keyishian v. Board of Regents, 385 U.S. 589, 605-

06 (1967). The government qua employer, however,

may apply legitimate employment standards in

regulating the workplace and promoting efficient

operation. This often requires the government to

regulate the speech of its employees in a manner

that, outside the employer-employee relationship,

would violate the First Amendment. In navigating

between these weighty concerns, courts must

balance the First Amendment against the

government’s interests as an employer.

The Supreme Court first framed this balance in

Pickering v. Board of Education, 391 U.S. 563,

568 (1968), explaining that "the State has

interests as an employer in regulating the speech

of its employees that differ significantly from

those it possesses in connection with regulation

of the speech of the citizenry in general." Thus

it is necessary to "arrive at a balance between

the interests of the [citizen], in commenting

upon matters of public concern and the interest

of the State, as an employer, in promoting the

efficiency of the public services it performs

through its employees." Id. In evaluating a

public employer’s regulation of its employee’s

speech on matters of public concern under the

First Amendment, Pickering balancing requires the

court to weigh the employer’s interest in

government efficiency and effectiveness on one

hand, and the public employee’s free speech

interests on the other hand.

Subsequent to Pickering, the Court developed a

"policymaking employee exception" to Pickering

balancing under the First Amendment. In Elrod v.

Burns, 427 U.S. 347, 367 (1976), the Court held

in a plurality opinion that patronage dismissals

of non-policymaking employees, based on their

partisan affiliation, violated the First

Amendment. However, the Court also carved a

narrow exception for termination based on

partisan affiliation of an employee who acts "as

an adviser or formulates plans for the

implementation of broad goals," id. at 368,

because "representative government [should] not

be undercut by tactics obstructing the

implementation of policies of the new

administration, policies presumably sanctioned by

the electorate." Id. at 367. For these sensitive

government positions, termed "policymaking" jobs,

the government employer has a heightened need for

trust and confidence that its subordinates are

guided by the same political compass and will

exercise their discretion in a manner consistent

with their shared political agenda. Here, the

government employer’s need for political

allegiance from its policymaking employee

outweighs the employee’s freedom of expression to

such a degree that it obviates Pickering

balancing.

The Court expanded this exception in Branti v.

Finkel, 445 U.S. 507, 518 (1980), beyond

employees with policymaking input, to any

employee for whom "party affiliation is an

appropriate requirement for the effective

performance of the office involved." We have

interpreted this definition of a policymaking

employee to include positions in which "’the

individual authorizes, either directly or

indirectly, meaningful input into government

decisionmaking on issues where there is room for

principled disagreement on goals or their

implementation.’" Warzon v. Drew, 60 F.3d 1234,

1239 (7th Cir. 1995) (quoting Nekolny v. Painter,

653 F.2d 1164, 1170 (7th Cir. 1981)). In his

position with the County, Bonds would have

contributed meaningful input on County policy by

producing research on which the Board of

Supervisors would base its decisions, and Bonds

conceded that his analyst job would have

constituted a "policymaking" position.

The unique facts of this case present the

following question in unusually sharp relief--

whether the policymaking employee exception to

the First Amendment exempts adverse employment

action based on speech unrelated to political

affiliation or viewpoint. While conceding his

status as a "policymaker," Bonds argues that

Pickering balancing applies nevertheless because

his termination was not based on "political

reasons" as contemplated by Elrod and Branti. In

fact, the County agrees that "political reasons,"

defined in the usual sense, were not the basis

for its decision to rescind the offer. That is,

it had no objection to the substance of Bonds’s

statements regarding the NSPP at the July 26

forum but instead found it dismaying that Bonds

chose to speak publicly against his then-

employer. In the typical case, the public

employer objects to the fact that the

policymaking employee speaks publicly against it,

but also objects to the substance of the

employee’s speech, namely that it contradicts and

criticizes its own positions. The twist in this

case is that Bonds was not yet working for the

County on July 26, and the speech at issue

criticized his then-employer, the City of

Milwaukee, and not the entity whose employment

decision is at question here, the County. The

County did not object to Bonds’s speech on the

basis of its viewpoint, but rather objected to

the fact that Bonds publicly criticized his

employer. We therefore must decide whether a

refusal to hire based on political speech

qualifies for the policymaking employee exception

when the motivation is unrelated to political

viewpoint. The district court’s refusal to apply

the policymaking employee exception is a question

of law which we review de novo. See Selch v.

Letts, 5 F.3d 1040, 1043 (7th Cir. 1993).

To date, following Elrod and Branti, we have

interpreted the policymaking employee exception

to exempt employer action from Pickering

balancing when it is based primarily on political

motivations. In addition to political

affiliation, we extended the exception to cover

employer action against political expression in

Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993).

There, the policymaking employee exception

protected a sheriff’s termination of a deputy

sheriff who decided to run against him in the

upcoming sheriff’s election. See id. at 217-18.

Although the deputy sheriff belonged to the same

political party as his superior, the rationale of

the exception covered political expression, such

as running for office against one’s superior,

that compromised the trust and loyalty from

policymaking employees essential to government

employers. We noted that the First Amendment does

not require "a public official to hire, or

retain, in a confidential or policymaking job,

persons who are not his political friends and may

be his political enemies." Id. at 218. The

exception rests upon the need of a public

employer to "trust the occupants of the

confidential positions to keep his secrets [and]

the occupants of the policymaking positions to

carry out his policies with fidelity and

diligence." Id. at 217. When a policymaking

subordinate contests his superior’s elected

position in an election, "the political enmity

that the candidacy is certain to engender

entitles the boss to fire him." Id. at 218.

In Warzon v. Drew, 60 F.3d 1234, 1238 (7th Cir.

1995), we held that the rationale for the

policymaking employee exception also covered

viewpoints relating to the policymaking

employee’s duties. We ruled that the termination

of a policymaking employee, whose duties included

management of the Milwaukee County health-care

plan and who openly challenged her superior’s

health-care policy positions, did not violate the

First Amendment. See id. Consistent with the

policymaking employee exception, disagreement

between the employer and the policymaking

employee over job-related policy issues causes

the same failure of loyalty and shared political

mission between superior and subordinate as

inconsistent political affiliation or viewpoint.

In deference to the public employer’s interests

in government effectiveness and efficiency, we

decided that an employer can punish policymaking

employees who disagree with it on job-related

policy. Id.; see also Flynn v. City of Boston,

140 F.3d 42, 47 (1st Cir. 1998); Hall v. Ford,

856 F.2d 255, 265 (D.C. Cir. 1988).

This case, however, presents a more complicated

factual posture. Ordinans explained that the

County chose not to hire Bonds because his

remarks evidenced shortcomings of

trustworthiness, propriety and loyalty to his

public employer. The County conceded that Bonds’s

substantive viewpoint on the NSPP was basically

untroubling, given its distance from the

development and implementation of the program.

Instead, the County viewed Bonds’s speech as

insubordination against his then-employer and

feared that Bonds might repeat such an episode in

his new job with the County.

The policymaking employee exception does not

immunize public employer action unconnected to

and unmotivated by need for political loyalty.

For example, in Marshall v. Porter County Plan

Commission, 32 F.3d 1215, 1221 (7th Cir. 1994),

we held that a government employer could not

terminate a policymaking employee for speech

criticizing her employer’s abuse of office

because the speech did not involve her political

or policy viewpoints. Furthermore, we explicitly

have left open the question whether a government

employer could cite the policymaking employee

exception to limit its policymaking employees’

speech unrelated to the performance of their

duties. See Ryan v. Illinois Dep’t of Children &

Fam. Servs., 185 F.3d 751, 759 (7th Cir. 1999);

Warzon, 60 F.3d at 1239 n.1; Marshall, 32 F.3d at

1221; Wilbur, 3 F.3d at 218.

Although an employee’s status as a policymaker

bears considerable attention when weighing the

interests of the government, the policymaking

employee exception does not apply and courts must

apply Pickering balancing when the speech at

issue does not implicate the employee’s politics

or substantive policy viewpoints. The

policymaking employee exception does not cover

all employee speech, see Wilbur, 3 F.3d at 217,

and speech unrelated to job duties or political

viewpoint runs too remote from the interests that

animate the exception. True, Bonds’s speech

addressed a controversial issue in a political

setting, but the County did not decide against

him for the political viewpoint of his speech.

Bonds was not hired because County executives

believed he was disloyal and indiscreet. The

policymaking employee exception does not apply to

the rescission of Bonds’s job offer because the

County did not withdraw its offer for "political

reasons," and Pickering balancing thus applies.

Under Pickering, a government employee must

satisfy the following two-part inquiry to prove

unlawful discharge under the First Amendment: (1)

the speech must address a matter of public

concern; and (2) the employee’s First Amendment

interest on this matter must not be outweighed by

any injury that the speech might inflict on the

government interest in promoting the efficiency

of its public services. See Pickering, 391 U.S.

at 568. We review de novo the district court

application of the Pickering test. See Messman v.

Helmke, 133 F.3d 1042, 1046 (7th Cir. 1998);

Hulbert v. Wilhelm, 120 F.3d 648, 653 (7th Cir.

1997).

Under the first prong of Pickering, we consider

"the content, form, and context of a given

statement" to determine whether Bonds’s speech

regarded a matter of public concern. Connick v.

Myers, 461 U.S. 138, 147 (1983). Bonds addressed

a subject of great public interest, and his

particular statements were relevant to the public

at large, not just Bonds personally. Bonds

intended to provide information about the NSPP,

which had been approved just a day earlier by the

City and was the subject of intense public

attention, at a community forum for interested

citizens. This certainly constituted

participation "in a public dialogue on matters of

interest to the public" and discussion of "public

issues rather than merely a personal grievance."

Dinshow v. School Dist. of Rib Lake, 77 F.3d 194,

197 (7th Cir. 1996).

The County admits that the NSPP was a widely

publicized matter of much political controversy

and importance, but insists that Pickering

protects speech by a government employee on a

public concern only when spoken within the

employee’s role "as a citizen" and not "as an

employee." The County argues that all Bonds’s

comments were made "as an employee" because he

represented the City at the forum and would not

have appeared but for his employment duties.

According to the County, Bonds’s speech is thus

unprotected regardless whether it addressed a

matter of public import. However, the County’s

proposed approach improperly places decisive

weight on the fact that Bonds appeared at the

forum as part of his job, without evaluating the

speech itself at all.

The cases cited by the County, which

purportedly apply its approach, consider whether

the employee spoke pursuant to her employment

duties as a contextual factor in deciding that

the relevant speech did not touch on a matter of

public concern. These cases hold that speech is

unprotected when the employee is not voicing her

personal opinions, but instead is conveying

information on behalf of another as part of her

duties, see Youker v. Schoenenberger, 22 F.3d

163, 165 (7th Cir. 1994), speaking about personal

grievances that relate only tangentially to a

greater political issue, see David v. City &

County of Denver, 101 F.3d 1344, 1355-56 (10th

Cir. 1996); Thomson v. Scheid, 977 F.2d 1017,

1020-21 (6th Cir. 1992); Terrell v. University of

Texas Sys. Police, 792 F.2d 1360, 1361-62 (5th

Cir. 1986), or speaking without any intent to

comment publicly, see Morris v. Crow, 142 F.3d

1379, 1382-83 (11th Cir. 1998) (holding that a

police officer’s written report and court

testimony pursuant to his job duties were

unprotected because the speech could not be

"characterized as an attempt to make public

comment"); Buazard v. Meredith, 172 F.3d 546, 548

(8th Cir. 1999). In other words, this caselaw

addresses the speaker’s status only insofar as it

relates to the context and purpose of the speech.

Some courts have explained that the relevant

inquiry is whether the employee speaks more in

his role "as employee" or "as citizen." See,

e.g., Wallace v. Texas Tech Univ., 80 F.3d 1042,

1050 (5th Cir. 1996). When courts refer to

"speech as a citizen," it is shorthand for the

constitutionally protected expression of

personally-held views regarding a public concern.

The underlying substantive question is whether

the particular speech at issue constitutes the

employee’s own personal expression, intended as

public comment, on a matter of public interest,

rather than mere articulation of the employer’s

position or speech directed by a private

grievance. When public employees offer their

opinions in roles as representatives or employees

of the government, the government’s interest as

an employer is greater than if the speech comes

divorced from the employment context, and the

second prong of Pickering should honor that

enhanced interest; however, the employee’s speech

may qualify as speech by a citizen on a public

concern under the first prong of Pickering

nonetheless. Indeed, we commonly have found

speech by public employees spoken pursuant to

their employment duties to constitute speech on

a public concern. See, e.g., Hulbert, 120 F.3d at

653-54; Campbell v. Towse, 99 F.3d 820, 828 (7th

Cir. 1996); Wright v. Illinois Dep’t of Children

& Fam. Servs., 40 F.3d 1492, 1503 (7th Cir.

1994). As Connick instructs, we consider the

content, context and purpose of Bonds’s speech at

the forum as factors in deciding that his speech

touched on a matter of public concern. See

Connick, 461 U.S. at 147; Waters v. Churchill,

511 U.S. 661, 668 (1994) (analyzing "what the

speech was, in what tone it was delivered, what

the listener’s reactions were" in deciding

whether the speech regarded a matter of public

concern).

Even though he participated in the forum at

Alderman Gordon’s direction, Bonds articulated

many independent views about the NSPP and did not

serve as a mere surrogate for Council positions.

Gordon testified that Bonds spoke for himself at

the forum and that Bonds’s criticisms of the NSPP

and the Mayor went well beyond the scope of

Gordon’s instructions. Indeed, this personal

initiative is precisely that which troubled

Ordinans and the Board of Supervisors. Bonds

spoke his own mind about the wisdom underlying

the NSPP, how the NSPP would affect the lives of

Milwaukee citizens and how concerned citizens

ought to respond politically. Bonds satisfies the

first prong of the Pickering test because he

commented for himself on a topic of public

concern.

The second prong of Pickering presents the

thornier question whether Bonds’s First Amendment

interests outweighed the County’s interests in

government efficiency and workplace harmony.

Factors to consider in applying the Pickering

test include (1) whether the speech would create

problems in maintaining discipline or harmony

among co-workers; (2) whether the employment

relationship is one in which personal loyalty and

confidence are necessary; (3) whether the speech

impeded the employee’s ability to perform her

responsibilities; (4) the time, place and manner

of the speech; (5) the context in which the

underlying dispute arose; (6) whether the matter

was one on which debate was vital to informed

decisionmaking; and (7) whether the speaker

should be regarded as a member of the general

public. See Kokkinis v. Ivkovich, 185 F.3d 840,

845 (7th Cir. 1999); Wright, 40 F.3d at 1502;

Knapp v. Whitaker, 757 F.2d 827, 839 (7th Cir.

1985).

As the County stresses, Bonds appeared at the

forum within the scope of his responsibilities to

the City and otherwise would not have spoken

there at all. This fact tempers his First

Amendment interests. If Bonds had appeared simply

as a surrogate for the City and said nothing on

his own behalf, then his speech would be

unprotected because his personal freedom of

expression would not be implicated. See, e.g.,

Bausworth v. Hazelwood Sch. Dist., 986 F.2d 1197,

1199 (8th Cir. 1993). However, in addition to

representing the City, Bonds expressed his

personal views about the NSPP at a community

forum for open discussion, and personal views on

a public concern are protected speech under

Pickering. Furthermore, putting aside for a

moment the costs and disruption caused by

disclosure of sensitive government information,

the public employee’s opinions have particular

First Amendment value for the public because his

access to inside information places him in a

unique position to evaluate government

performance. See Waters, 511 U.S. at 674; Wilbur,

3 F.3d at 215. Bonds provided a unique

perspective on the NSPP and contributed to

meaningful public debate with his expert opinion

on an arcane, but important City program which he

had studied and researched.

This indicates that Bonds’s First Amendment

interests were significant, but not that they

necessarily outweigh the government’s interests

here. In fact, we find the opposite to be true.

Under Pickering, we consider among other things

whether the speech would create workplace

dissension; whether the employment relationship

requires heightened personal loyalty and

confidence; and whether the speech impedes the

employee’s ability to perform his

responsibilities. See Wright, 40 F.3d at 1502.

Bonds’s status as a policymaking employee speaks

to each of these factors and swings the balance

in the County’s favor. The special loyalty and

confidentiality needed from policymaking

employees like Bonds exacerbates the damage to

the employment relationship and government

effectiveness caused by their insubordinate,

disloyal or inappropriate speech.

Although the policymaking employee exception

does not apply, an employee’s policymaking status

therefore remains a critical factor in applying

Pickering balancing. The policymaking employee

exception represents a subset of Pickering cases

where the government’s interests so far outweigh

the policymaking employee’s interests that a

categorical exception is appropriate. See Warzon,

60 F.3d at 1238; Marshall, 32 F.3d at 1220;

Wilbur, 3 F.3d at 218-19. But see Stough v.

Gallagher, 967 F.2d 1523, 1527-28 (11th Cir.

1992). The government interests advanced both by

the policymaking employee exception and Pickering

balancing overlap considerably. See Warzon, 60

F.3d at 1238. Under the same rationale embodied

by the policymaking employee exception itself,

the government employer possesses substantial

latitude to punish or terminate (or in this case,

refuse to hire) policymaking employees when

addressing their nonpolitical speech under

Pickering.

The difference for nonpolitical speech, however,

is that the policymaking employee still retains

some First Amendment rights despite his

policymaking status. We have explained that

"[b]ecause the individual and governmental

interests are essentially unvarying in patronage

cases, the focus is less on the expressive

activity than on the office occupied by the

person engaging in that activity." Heideman v.

Wirsing, 7 F.3d 659, 662 (7th Cir. 1993). In

contrast, the connection between an instance of

nonpolitical speech and the consequent effect on

government efficiency varies considerably from

one case to another. Evaluating the rich

diversity of nonpolitical speech by policymaking

employees under Pickering forces courts to accord

First Amendment protection for speech that bears

almost no relation to the demands required of

policymaking employees, but permits the

government appropriate latitude when the relevant

speech will significantly impair the government’s

legitimate interests as an employer. We confer

substantial weight to the employee’s status as

policymaker in applying Pickering to nonpolitical

speech, but we also evaluate whether the employer

proffers a reasonable connection between the

speech and a legitimate rationale for the adverse

employment action.

Bonds’s speech rightly troubled the County

because it had undermined his credibility with

several supervisors, and Ordinans reasonably

believed that his hiring would have created

workplace dissension. Even though Bonds was not

speaking about politics directly relevant to the

County, Ordinans was concerned that Bonds would

not be loyal to County policy positions because

he had shown himself willing to advocate publicly

his personal political views to the extent that

he embarrassed his employer in explicit and

provocative terms. Ordinans worried that Bonds

might do the same while working for the Board of

Supervisors and felt that his statements revealed

him to be untrustworthy and disloyal--so much

that several supervisors already had declared

that they could not work with him. Particularly

given the small size of the County staff,

Ordinans was concerned that Bonds would disrupt

workplace harmony and would be ineffective in his

new position with the County as a result of the

distrust surrounding him. In hiring or

terminating employees, a government employer is

entitled to consider "’the potential

disruptiveness of an employee’s speech.’" Caruso

v. De Luca, 81 F.3d 666, 670-71 (7th Cir. 1996)

(quoting Waters, 511 U.S. at 680); see also

Kokkinis, 185 F.3d at 845-46 (upholding

termination of a police officer who publicly

criticized his employer, based on potential

disruptiveness of speech). Furthermore, though

Bonds contends otherwise, Ordinans had reasonable

grounds to believe that Bonds had conducted

himself inappropriately at the forum based on the

newspaper report, Hart’s telephone discussion

with Bonds and Bonds’s written apologies to Mayor

Norquist and the Council.

After considering the views of three county

supervisors and her chief of staff, Ordinans

concluded that hiring Bonds would become a "big

problem" and a "disaster." Under these

circumstances, the County’s interests in

government efficiency and workplace harmony

justified its decision to rescind its offer to

Bonds for a policymaking position and outweighed

Bonds’s First Amendment interests under

Pickering. The alternative for the County was to

hire a prospective employee for a sensitive

policymaking position who it believed would be

disruptive and ineffective in his new role. The

County’s decision not to hire Bonds because of

his speech at the July 26 forum meets the

Pickering standard and does not violate the First

Amendment.

Finally, Bonds argues that the County’s

interests as an employer were not yet implicated

because he had not begun working for the County.

This is material only if it affects how the

County rightfully could have regarded the

possible effect of Bonds’s hiring on efficient

government operation. Admittedly, these facts are

unusual, but we disagree with Bonds that this

makes any difference. Courts should give

substantial deference to government predictions

of harm from employee speech, see Waters, 511

U.S. at 673, and the Supreme Court explained that

the government’s reasoning for termination based

on an employee’s speech should be evaluated from

the vantage of the employer’s reasonable belief.

See Waters, 511 U.S. at 678; see also Connick,

461 U.S. at 152 ("[W]e do not see the necessity

for an employer to allow events to unfold to the

extent that the disruption of the office and the

destruction of working relationships is manifest

before taking action."). The operative question

is whether the County can show that it was

reasonable to believe that Bonds’s speech would

cause dissension and inefficiency in its

workplace once Bonds began work. As we have

discussed already, the evidence shows this to be

true here.

Ordinans premised her decision not to hire

Bonds on the expected future effect that Bonds’s

hiring and presence in the workplace would have

on office morale and government effectiveness.

Ordinans reasonably felt that, if Bonds was

hired, the other staffers would resent Bonds’s

lack of professionalism, and Hart testified that

Bonds would have begun his employment at the

County under a cloud of suspicion and distrust.

Although Bonds had not started his employment

with the County, Ordinans was justifiably

concerned about the future tumult and dissension

that Bonds’s hiring would produce. These are

legitimate interests under Pickering, and the

fact that Bonds had not yet begun working at the

County does not diminish them.

Conclusion

For the foregoing reasons, we AFFIRM the judgment

for Milwaukee County.

Cudahy, Circuit Judge, dissenting. This is

certainly a case of first impression,

illustrating the confusion attendant on

increasingly complex elaborations of the First

Amendment rights of government employees. To

somehow allay confusion, we must go back to first

principles in search of an answer to the puzzle.

In that spirit I concur wholeheartedly with the

majority that Mr. Bonds’s comments at the ill-

fated Community Brainstorming Conference

addressed a subject of public concern and that

therefore the analysis set forth in Pickering v.

Board of Education, 391 U.S. 563 (1968), is

appropriate. See also Connick v. Myers, 461 U.S.

138 (1983). That Bonds was a public employee and

that he spoke on a subject within his purview as

a policy analyst working for the City does not

impair his rights as a citizen, so long as he

expressed his own opinion on a subject that was

of intense public interest. He was not

complaining about the quality of the water in the

office water cooler or some other "inside" matter

pertaining to his working conditions, his

relations with other employees or some other

topic not of interest to the public at large. It

may be symptomatic of the confusion that seems

increasingly to be plaguing Pickering-type cases

that the issue of public concern could even be

raised here. Going back to first principles may

mean looking at the Pickering case itself, where

a high school teacher wrote a letter to the local

newspaper highly critical of the way the Board of

Education had handled certain bond issue

proposals and its subsequent allocation of

financial resources between the schools’

educational and athletic programs. See Pickering,

391 U.S. at 565-67, 575-78. In many respects,

including the tone of the letter as compared with

the tone of Mr. Bonds’s public remarks, Pickering

sounds very much like the present case.

Before wrestling with the thorny legal issues,

it would be helpful to put the Brainstorming

Conference, at which Mr. Bonds spoke, in some

perspective. This will help not only in

evaluating Mr. Bonds’s conduct, but also in

weighing the importance to the public of

protecting his right to speak. Mr. Bonds’s speech

dealt with a highly controversial issue with

millions of dollars of public funds at stake.

Holding a doctoral degree in Urban Studies (and

having written his dissertation on the historical

distribution of Community Development Block Grant

funds in Milwaukee from 1975 to 1997), he is a

foremost expert on the Community Development

Block Grant process and he obviously felt deeply

about it. He was therefore highly qualified to

provide the public with information about this

important subject, which was right at the center

of public concern. The testimony of Vel Phillips-

-who was Milwaukee’s first black, female

alderman, later Wisconsin Secretary of State and

a national figure--and of Reuben Harpole--long

associated with higher education through the

University of Wisconsin-Milwaukee--indicate the

importance of Mr. Bonds’s speech. These were the

only trial witnesses who were actually present at

the forum where Mr. Bonds spoke, and when asked

to describe Mr. Bonds’s demeanor at the forum,

Mr. Harpole answered, "[His demeanor was]

[a]lmost essentially like he acted today [at the

trial]. I’ve known Mr. Bond [sic] for about ten

years and he’s always been even tempered, just .

. . but he doesn’t bite his tongue on the truth."

Tr. at 138. See also id. at 137 (Harpole

characterizing Bonds’s comments as "[s]mooth,

nonthreatening, but speaking the truth").

Ms. Phillips’s response to a question about

what actions Mr. Bonds had advocated at the forum

is instructive. She said, "I was very aware at

that point and he was not advocating anything. He

was being very . . . He’s a soft spoken man just

by his general demeanor and he was not in any way

excited or . . . well, he was just being very

logical, very professional in his responses." Tr.

at 143. According to these witnesses, Mr. Bonds’s

allegedly inflammatory remarks about recalling

the Mayor and so on were not volunteered. They

were offered in response to questions from the

audience about what steps citizens could take if

they disagreed with decisions about the

Neighborhood Strategic Planning Process. See,

e.g., Tr. at 143 (Phillips explaining that

"someone asked the question what are some of the

options if you think you’re not getting your fair

share . . . . And [Bonds] was going through

various things that you could do . . .").

With this indication of how the actual

witnesses may have seen the speech, it is easier

to strike the Pickering balance in a realistic

way and without the credulity displayed by the

majority. For, in the majority’s analysis, County

officials are being allowed to speculate about

Bonds’s future suitability for County employment

with neither logic nor evidence to support their

speculations. The first paradox is that Bonds was

retained by the City which he supposedly grossly

offended by his remarks. Neither his loyalty nor

his ability to work cooperatively with his

fellows has been questioned by the City. Yet the

County, which he has not offended in any way, can

wring its hands over Bonds’s supposed disloyalty

and disruptiveness. After the withdrawal of

County employment, the City did not discipline or

reprimand (let alone fire) Mr. Bonds. Instead,

the City continued to employ him. He went on

providing critical analysis for the City, and

ultimately the Community Development Policy

Committee and the full council accepted his

concerns and modified the Neighborhood Strategic

Planning Process. See Tr. at 18-19, 93-95, 221.

Mr. Bonds was later promoted, receiving a $9,000

pay raise, and praised by City officials. See Tr.

at 41-42, 45, 48, 222. His views were essentially

vindicated but at the cost of a County job. On

the other side of the scale, the majority says

very little about the interest of Mr. Bonds, as

a citizen, in being able to speak honestly in

public about a significant matter of public

concern or about the public’s interest in being

informed by him about a difficult matter of major

importance to the public. See Pickering, 391 U.S.

at 571-72.

Perhaps, on this occasion Bonds’s passionate

belief in his point of view caused him to speak

too boldly and imprudently, but there is no

showing that this has been Mr. Bonds’s habit as

an employee of the City or that it would be his

practice at the County, where he had been

specifically instructed that analysts assume a

low profile. There is nothing to indicate that

the City ever issued similar instructions, and,

in fact, Bonds’s boss, Alderman Gordon, directed

him to participate in the forum. See Tr. at 27-

28. Later on, the Alderman claimed in a

deposition that he had received numerous

telephone calls of protest at Bonds’s remarks,

and the findings of fact submitted by the

defendants, and adopted without change by the

district court, translated this as "substantial

disruption" for the City. See Defendant’s

Proposed Findings of Fact para. 13; Tr. of

Decision at 5 (adopting findings). There were

also findings about apologies requested or

delivered. See Findings of Fact para.para. 11,

12. Whether there were "apologies" requested or

delivered seems of only marginal relevance. If

Bonds apologized for any misunderstandings or

perceived excesses of rhetoric, it would speak

well for his civility, but it says little about

the propriety or legality of his being "unhired"

by the County. The best indicator of the City’s

"disruption" as a result of the Bonds incident is

that Bonds was not reprimanded or sanctioned by

the City in any way.

The majority has in its analysis ushered the

policymaking employee exception, as such, out the

front door, but has let it in again by the back

door--using it as a makeweight of undetermined

heft in the Pickering analysis. Thus, the

majority writes, "The special loyalty and

confidentiality needed from policymaking

employees like Bonds exacerbates the damage to

the employment relationship and government

effectiveness caused by their insubordinate,

disloyal or inappropriate speech." Maj. op.,

supra, at 18. Bonds’s speech here may have been

"inappropriate" in part, but it was surely

neither insubordinate nor disloyal. Bonds was

directed by his boss to appear at the

Brainstorming Conference, and pointing out the

means of political action does not equate with

"disloyalty." The majority ascribes to Chairman

Karen Ordinans concerns that Bonds’s "statements

revealed him to be untrustworthy and disloyal."

Maj. op., supra, at 19. All of this seems to

assume that after the council vote (which went

against Alderman Gordon), Bonds should have

changed his tune and supported a change that both

he and the Alderman had opposed, or be deemed

"disloyal."

Three County supervisors--Daniel Dilberti, Jim

McGuigan and Robert Krug--expressed concern about

Bonds when they read the piece in the Journal

Sentinel. See Maj op., supra, at 4-5. But, there

was opposition to Bonds’s termination: five Board

members sent Ordinans a letter formally opposing

the termination, see Tr. at 210-11, and four

supervisors testified on Bonds’s behalf at the

trial, see Tr. at 97-100 (Lori A. Lutzka), 110-19

(Elizabeth Cogg-Jones), 119-130 (James Gavin

White), 130-34 (Michael Mayo, Sr.). I suppose

this renders Bonds "controversial" and, by the

lights of some, sanctionable for his speech.

However, I would guess that several (perhaps all)

members of the Board of Education were upset at

teacher Pickering for writing a "disruptive"

letter to the newspaper. This should never be a

sufficient reason for denying First Amendment

protection.

The fundamental error that I see in the

majority’s analysis is in taking the expressed

concerns of County officials at face value

without requiring some showing that subjective

concerns were supported by objective reality.

Thus, the majority writes, "Bonds’s speech

rightly troubled the County because it had

undermined his credibility with several

supervisors, and Ordinans reasonably believed

that his hiring would have created workplace

dissension." Maj. op., supra, at 19. "Loss of

credibility" is a pointedly subjective matter,

and there are obvious problems with allowing it

to vitiate constitutional rights. Freedom of

speech would mean very little if one’s

"credibility" with the listeners were the measure

of one’s rights. And the majority inexplicably

describes as "reasonable" Ordinans’s concerns

about "workplace dissension" which she based

simply on what she thought Bonds’s "future

behavior could be." Tr. at 202. Potential

problems may certainly figure in the Pickering

analysis, but there must be some plausible link

between what has happened in the real world and

what might happen in the future. See Connick, 461

U.S. at 152 (noting that although there is no

need for "an employer to allow events to unfold

to the extent that the disruption of the office

and the destruction of working relationships is

manifest . . . a stronger showing may be

necessary [to justify termination] if the

employee’s speech more substantially involved

matters of public concern"). Here we have a

single episode in which a speaker may have

engaged in rhetorical excesses. This may indicate

a too fervent commitment to a point of view, but

it is pure speculation that "workplace

dissension" is anywhere in sight. The majority

theorizes that the small size of the County staff

would contribute to bad working relations with

Mr. Bonds. This is just a wild guess based on a

single speech. In fact, because Bonds’s comments

were "in no way directed towards any person with

whom [he] would normally be in contact in the

course of his daily work" with the County, there

is probably "no question of maintaining either

discipline by immediate superiors or harmony

among coworkers . . . ." Pickering, 391 U.S. at

569-70. Or, it might also be the case that the

other County staffers would admire Bonds for his

forthrightness and derive satisfaction from

working with him. It is unlikely that failing to

cancel Bonds’s hiring would be a "disaster," on

the theory that the County’s seven-person

research staff would go out in the community and

conduct themselves like Bonds or that Ordinans’s

"job would be complete chaos." The remote

possibility that other teachers might emulate Mr.

Pickering in publicly critiquing Board of

Education policy was no bar to First Amendment

protection for him in the Pickering case. The

lesson of the present incident as viewed by the

majority is that staffers are to be seen and not

heard and the knowledge they have acquired after

many years of diligent application is not to be

shared with a public eager to be informed. They

will exercise their First Amendment rights at

their own (high) risk.

What was totally lacking in the Bonds case was

any investigation to discover exactly in what

context he made his remarks, what was his

relation to Alderman Gordon, whether the Alderman

directed him to make remarks on the Neighborhood

Strategic Planning Process and a variety of other

matters that might reflect on Bonds’s alleged

"insubordination" and "disruption." Ordinans did

not speak with Bonds or Alderman Gordon, see Tr.

at 210, nor did she speak with anyone who was

actually at the Brainstorming Conference, see Tr.

at 203. An investigation would have disclosed

that there was no disagreement in policy between

Bonds and his boss, the Alderman. Alderman

Gordon, who represents a ward in the Northside

African-American community and to whom Bonds

directly reported, had instructed him to write

the report on the Neighborhood Strategic Planning

Process and had directed him to appear and to

speak in his place at the Community Brainstorming

Conference. See Tr. at 14-15, 19, 27. Alderman

Gordon had told Bonds to provide "blunt" analysis

of the Neighborhood Strategic Planning Process.

Tr. at 28. The Northside audience before whom

first Gordon and then Bonds was to appear was

certainly expected to be sympathetic to their

views.

After the speech came to the attention of

Ordinans, Bonds should have been given an

opportunity to tell his side of the story in

detail. He did have one telephone conversation

with Hart, but that seems entirely inadequate

under the circumstances. If Bonds were being

dropped by the City, you can be sure there would

have been at the very least a thorough

investigation. I see no difference between the

obligation to investigate of an employer where

the term of employment has yet to begin and the

obligation of a current employer. In fact, at the

trial, Milwaukee Common Council President Kalwitz

was asked what he would have done if he were

concerned about Bonds’s speech. Alderman Kalwitz

replied, "I would have approached Mr. Bonds and

asked him under what circumstances he made those

comments." Tr. at 222. The alternative to an

investigation is to give full credence to every

fleeting concern and every vagrant fear felt by

officials of the prospective employer when they

have read a brief account of an incident in the

newspaper. If nothing is required of the

prospective employer beyond rampant speculation,

the burden on First Amendment rights is

unacceptable.

And what are the First Amendment values that

are virtually ignored by the majority opinion? As

has been earlier explained, Bonds’s speech

involved a highly controversial subject in which

there was intense public interest--particularly

on the Northside of Milwaukee. Millions of

dollars were at stake, and Bonds was an expert

who could supply the pressing need for

information. One obvious purpose of the First

Amendment is to keep the public informed on

important subjects of public concern. See

Pickering, 391 U.S. at 571-72. The result reached

by the majority here will put new barriers in the

path of government employees who might otherwise

contribute to public enlightenment. One of the

ironies of the situation is that, after being

rejected by the County, Bonds went on to

essentially vindicate his views in his further

work for the City. The employer that did not

strike out in panic at the first manifestation of

Bonds’s independence was thus rewarded by his

further, apparently fruitful, contributions of

skill and knowledge. That is why the interests

both of the government employee and of the public

in the employee’s right to speak freely on

matters of public concern may not be

circumscribed on the basis of speculative and

baseless fears.

Although the majority did not apply the

policymaking employee exception here because it

concluded that the County did not reject Bonds

because of a political disagreement, a few

comments on its extended discussion of the

exception may be in order. It is important to

recall the origins of the exception in

determining whether it ought to apply. In its

origins, the exception pertained to partisan

differences: Republicans should not be forced to

employ Democratic policymakers. See Elrod v.

Burns, 427 U.S. 347, 372 (1976); see also Branti

v. Finkel, 445 U.S. 507 (1980). From there it

moved on to situations of electoral

confrontation: a candidate should not have to

employ his or her election opponent as a

policymaker. See Wilbur v. Mahan, 3 F.3d 214,

217-18 (7th Cir. 1993). More recently, the

exception has been extended to the taking of

policy (or political) positions by a policymaker

in opposition to those of his or her employer.

See Warzon v. Drew, 60 F.3d 1234, 1239 (7th Cir.

1995). These are thought of as political

differences of sufficient consequence to

undermine the employer-employee relation of trust

and confidence. This doctrine, however, in its

evolution rests upon the idea--not that there is

a simple disagreement on an issue between

employer and employee--but that the disagreement

is fundamental enough to weaken the bond between

the two, so as to destroy the efficiency and

effectiveness of the working relationship. The

policy difference can then be said to be a

"political" rift between a public employer and

its policymaking employee. As the majority puts

it, "disagreement between the employer and the

policymaking employee over job-related policy

issues [may cause] the same failure of loyalty

and shared political mission between superior and

subordinate as inconsistent political

affiliation or viewpoint." Maj. op., supra, at

12. This formulation should make it clear that

the disagreement, in order to implicate the

policymaking employee exception, must take a form

from which a failure of loyalty and fidelity can

reasonably be inferred as a strong probability,

not a form from which such a failure would be

only a possibility--something to watch for in the

future.

In the present context, the exception does not

apply for several reasons in addition to the one

noted by the majority. First, Mr. Bonds had no

policy disagreement with his relevant superior,

Alderman Gordon. They both agreed that The

Neighborhood Strategic Planning Process was a bad

idea. Admittedly, the Common Council acted

contrary to Alderman Gordon’s wishes and contrary

to Mr. Bonds’s views, but this is hardly a policy

difference that is relevant to Mr. Bonds’s

ability to perform his policymaking job. That

Alderman Gordon was critical of Mr. Bonds’s

rhetoric (as opposed to the substance of his

remarks) creates no policy difference implicating

the policymaking employee exception.

There is another reason why the exception fails

here. The basis of the policymaking exception is

the idea that political antagonism may cast a

doubt over the employee’s fidelity and ability to

work cooperatively and effectively in the

policymaking role. If a single speech were enough

to trigger the exception, the exception would

completely swallow any First Amendment protection

that would otherwise be available. It is not

surprising that in none of our cases has a single

incident of policy disagreement been held to be

enough to justify the sanctioning of a

policymaker. And this is certainly not the case

to recognize such a possibility.

There was therefore no basis either under the

policymaking employee exception or under

Pickering balancing for the County to rescind

Bonds’s job. I therefore respectfully dissent.