Dr. Nolan L. Kinsey v. Salado Independent School District

GEE, Circuit Judge,

dissenting:

Today the Court holds that the highest executive in a public school system can, by deliberately injecting himself into and making his policy views a central issue in a school board election, so entrench himself in office that he cannot be discharged even though the voters rejected both the views that he espoused and his surrogates, the candidates whom he sought to elect. 1 Thus, although the school district constituency could vote out Dr. Kinsey’s supporters who championed his policies, it could not rid itself of Dr. Kinsey who, like the *283 celebrated Vicar of Bray, 2 by an easy change of views is to maintain his position despite — indeed, precisely because of — his political meddling. Such a message, that self-conferred tenure waits only upon involving oneself in the political campaigns of one’s elected superiors, will not likely be lost on policymaking public servants or those engaged in close working relationships with their public employers.

No lengthy writing is called for in dissent, it seems to me, for I do not think that this can be the law; to state the proposition is to refute it. If public servants such as Dr. Kinsey, whom the majority concedes “unquestionably” stands in a close and confidential relationship to the school board (at 280), have only to enter the fray on one side or the other of board elections in order to lock down their positions for good and all then, and just insofar, the Constitution truly has become a suicide pact. Long ago, in reliance on Supreme Court authority, we held the contrary:

In Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980), the Court found that the First Amendment protected employees from discharge because of their political affiliation but excluded from this protection holders of certain “policy-level” positions. While the Branti Court eschewed this categorical inquiry, it continued to acknowledge that political affiliation may be a sufficient proxy of necessary loyalty as to be permissibly considered for certain types of “positions.”

There is a governmental interest in securing those unique relationships between certain high level executives and the elected officials at whose grace they serve. For this narrow band of relationships, refusing to grant First Amendment found tenure would seem to take away little freedom not already lost in accepting the appointment itself, at least when the appointive job has the sweep of authority and discretion as to be central to the elected official’s duty. The holder of such a position can hardly have any reasonable expectation but that his policy choices must publicly fall within the protective license issued by his appointing officer. His selection presumably included that supposition. To say that loss of that job is the price for his public declaration chills little. For us it follows that disruption of the relationship between an appointing authority and a holder of such a senior position may be weighed in the assaying of his First Amendment right to escape termination for a public disavowal of his appointing authority’s power of supervision. But we say no more than that such governmental interests are relevant to the First Amendment inquiry into the context of time, place, and manner.

In terms of this case the ultimate question is whether that interest was present here and was such that Gonzalez’s First Amendment protection did not include job security as executive director of the Community Action Agency.

Gonzalez v. Benavides, 712 F.2d 142, 147-48 (5th Cir.1983) (emphasis added).

And again, the Court, sitting en banc, reiterated the principles governing today’s case:

On the one hand, the court should consider to what degree the deputies’ participation in the election campaign or Mrs. McBee’s actions involve “public concerns.” On the other, the court should consider whether “close working relationships are essential to fulfilling [the deputies’] public responsibilities,” Connick, 461 U.S. at 151-52, 103 S.Ct. at 1692, 75 L.Ed.2d at 723. We caution that the “closeness” of a working relationship as it affects job performance is not to be gauged merely by the size of the office or the number of employees. Rather, it *284 is a function of the particular “public responsibility” being carried out. “Close working relationships” may be less relevant to the effectiveness of a five-man, one-room Motor Vehicle Bureau than they are to the effectiveness of a 50-offi-cer police precinct, for example. Should the court find “close working relationships” “essential,” it must then determine whether the particular speech sufficiently disrupted the working relationship as to prevent effective performance, requiring a stronger showing of disruption as the employees’ speech moves closer to core “public concerns.” Id.

Relevant to the determination of disruptive effect is the time, place and manner of the political activity. The Con-nick court, for example, noted that the employee in that case used work time and work space, commenting that employee speech that did not do so “might lead to a different conclusion.” 461 U.S. at 153, n. 13, 103 S.Ct. at 1693, n. 13, 75 L.Ed.2d at 724, n. 13.

Finally, the court should consider whether, taken in context, the particular activity could be considered sufficiently hostile, abusive or insubordinate as to disrupt significantly the continued operation of the office. 461 U.S. at 153-54, 103 S.Ct. at 1693, 75 L.Ed.2d at 724. In this connection, to the extent that the district court’s analysis suggests that as a matter of law it will never be relevant to First Amendment inquiry whether the speech involved constitutes personal as distinguished from party political support, it stands corrected by Connick and Gonzalez. Cf. Gonzalez, 712 F.2d at 148 (even where no intimate working relationship exists, an appointed senior official's public disavowal of the authority of his superiors may constitute such disruption as to outweigh his First Amendment right in that speech).

McBee v. Jim Hogg County, Tex., 730 F.2d 1009, 1016-17 (5th Cir.1984).

The record indicates, and indeed it is common knowledge, that a Texas school superintendent such as Dr. Kinsey is the principal executive of the school district, standing in like relationship to school board members as does the president of a business corporation to his board of directors. In addition, while molar policy is in great degree for the board, molecular policy is his. The relationship is all but symbiotic, and a ruder violation of it than public campaigning by the superintendent for one faction of the board against another can scarcely be imagined.

If the majority’s eloquent opinion is correct, however, taking sides in the next election should be a new superintendent’s first step if he likes his job: barring a truly incandescent ingratitude, if those for whom he campaigned prevail, his job is safe; and if they do not, their successful opponents, whose election he opposed, cannot discharge him. With all deference to my Brethren, I cannot believe that such is the law. I therefore respectfully dissent.

. As the majority notes, "A vote for the Berry Slate was essentially viewed as a vote for Kinsey. Kinsey and the Berry Slate supported leaving the daily operation of the school to the school administrators_" (at 278). Of these latter, of course, Kinsey was the chief.

. It will be recalled that the 16th century Vicar managed to retain his endowed living during all religious changes of the reigns of Henry VIII, Edward VI, Mary and Elizabeth I, a feat that gave rise to a popular ballad:

And this is the law I will maintain

Until my dying day, Sir,

That whatsoever king shall reign

I’ll still be the Vicar of Bray, Sir.