holding that government defendants enjoyed qualified immunity from plaintiff's First Amendment claim: “The relevant inquiry is not whether the defendants should have known that there was a federal right, in the abstract, to ‘freedom of speech,’ but whether the defendants should have known that the specific actions complained of violated the plaintiff's freedom of speech.”
How later courts described this case
- holding that government defendants enjoyed qualified immunity from plaintiff's First Amendment claim: “The relevant inquiry is not whether the defendants should have known that there was a federal right, in the abstract, to ‘freedom of speech,’ but whether the defendants should have known that the specific actions complained of violated the plaintiff's freedom of speech.”
- finding overbroad the district court’s definition of the right as “the freedom of speech” and redefining the inquiry as “whether the defendants should have known that terminating a poli-cymaking pubhc employee for refusing to promote agency policy as directed by his employer would violate the First Amendment”
- stating that when a court determines whether the employee’s speech addresses a matter of public concern, “the court should focus upon the motive of the speaker and attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.”
- explaining that “the Pickering balance is more likely to favor the government when an employee directly confronts his supervisor with objectionable language than when an employee engages in equivalent speech on his own time and not in front of co-workers”
Written by the judges who cited it.
The opinion
WEINSTEIN, District Judge,
concurring:
I concur. Yet, I respectfully submit, the important issue of free speech discussed in the majority opinion, relying on the line of cases beginning with Pickering v. Board of Educ., 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), — requiring a balancing approach to the right of government employees to speak (or remain silent) on a matter of public concern — need not be addressed.
The head of an important state governmental' unit is not prevented by the United States Constitution • from firing, on grounds untinged by invidious or other illegal considerations, a chief assistant who has substantial *168 discretionary powers and who opposes a key departmental decision or policy. Cf. Branti v. Finkel, 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976); McEvoy v. Spencer; 124 F.3d 92 , 99 (2d Cir.1997) (“This Circuit has interpreted Branti’s version of the policymaker exception to mean that ‘political affiliation is an appropriate requirement when there is a rational connection between shared ideology and job performance.’” (quoting Savage v. Gorski, 850 F.2d 64, 68 (2d Cir.1988))); Gordon v. County of Rockland, 110 F.3d 886, 890 (2d Cir.1997) (“[Ejach of the three plaintiffs served as a liaison and advisor to a policy-making commission. It is difficult to fathom how such responsibilities can be undertaken and done well without their ‘political or social philosophy [making] a difference in the implementation of programs.’ ” (quoting Savage v. Gorski, 850 F.2d 64, 69 (2d Cir.1988))); Regan v. Boogertman, 984 F.2d 577, 581-82 (2d Cir.1993) (“The reasoning of Elrod and Branti is applicable even ... where the firing occurs without a change in administration. ... It is logical for an administration to expect that once committed to certain policies its key members will adhere to and implement those policies.”); see also Fazio v. City & County of San Francisco, 125 F.3d 1328, 1332 (9th Cir.1997) (“If ... a public employee is a policymaker, then the claim would fall under the rubric of Elrod and Branti”).
As Chief of the Connecticut State Lottery Unit, the plaintiff was a policymaker unprotected by the United States Constitution from being fired when he refused to carry out a superior’s policy directives, and there was no invidious predicate for dismissal. See McEvoy v. Spencer, 124 F.3d 92, 104 (2d Cir.1997) (police commissioner); Gordon v. County of Rockland, 110 F.3d 886 (2d Cir.1997) (county attorney); Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir.1994) (highway superintendent); Regan v. Boogertman, 984 F.2d 577 (2d Cir.1993) (deputy tax receiver); Savage v. Gorski, 850 F.2d 64 (2d Cir.1988) (confidential secretary to director, of county correctional facility; coordinator for pre-trial release services; and first deputy service officer for county veterans service agency). Other Circuits have recognized equivalent positions as “policymaking” within the meaning of Branti and Elrod. See, e.g., Flynn v. City of Boston, 140 F.3d 42 (1st Cir.1998) (associate director of administration and finance and associate director for field operations of city agency); Fazio v. City & County of San Francisco, 125 F.3d 1328 (9th Cir.1997) (assistant district attorney); Jenkins v. Medford, 119 F.3d 1156 (4th Cir.1997) (en banc) (deputy sheriff); Cutcliffe v. Cochran, 117 F.3d 1353 (11th Cir.1997) (deputy sheriff);. Peters v. Delaware River Port Auth., 16 F.3d 1346 (3d Cir.1994) (Secretary of transit authority); Selch v. Letts, 5 F.3d 1040 (7th Cir.1993) (subdistrict superintendent of highway department); Faughender v. City of North Olmsted, 927 F.2d 909 (6th Cir.1991) (mayor’s personal secretary); Green v. Henley, 924 F.2d 185 (10th Cir.1991) (administrator of transportation division of state commission); Bauer v. Bosley, 802 F.2d 1058 (8th Cir.1986) (staff legal assistant in court clerk’s office); Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236 (1st Cir.1986) (regional director of urban development and housing corporation); Brown v. Trench, 787 F.2d 167 (3d Cir.1986) (assistant director of public information); Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1985) (first deputy commissioner of water department).
One of the core functions of the plaintiffs job as Lottery Unit Chief was to promote Connecticut’s state lottery under the supervision of the Executive Director of the Division of Special Revenue. His duties required him to act as “the official lottery spokesman” to the public and to represent the agency’s position before the Gaming Policy Board. He now claims that his First Amendment rights were violated because he refused to speak in support of the lottery format favored by his superior, the Executive Director.
When promotion of a particular plan is an essential feature of employment, as it often is for policy-makers such as plaintiff, an employer is not prevented by the United States Constitution from firing an individual for his insistence that he will not support the superior’s program. If the Pickering test were applied in cases such as Lewis’, courts would be unnecessarily burdened with complicated *169 “balancing” of factors in cases which do not implicate constitutionally protected free speech, for example, the claim of a speech winter who refuses to compose a political oration because he disagrees on policy grounds with the underlying message.
The issues of constitutional law must be distinguished from those of sound employer-employee relationships. • Termination is usually a counterproductive method of dealing with every instance where a policy-making-subordinate conscientiously objects to promoting a particular departmental policy. Some tolerance for differing views is desirable for the effective functioning of any governmental unit. Insensitivity and thin-skinned demands for absolute obedience by higher-ups can unnecessarily sacrifice the careers of dedicated and talented public servants. As a matter of ethics and management, rational minds can disagree over the appropriate degree of tolerable dissent. The issue is not, however, usefully characterized as one of controlling constitutionally protected speech.
The defendant had legitimate reason to believe that the plaintiff was unwilling or incapable of performing his job. While we may question the propriety of the dismissal from an ethical or managerial standpoint, there is no grounds for questioning its constitutionality. In cases such as this one we should look for solutions to the healing ministrations and skills of experts on employee-employer relations rather than to the balancing scales and sword of the law. To import sophisticated rules of free speech into such cases as the instant one promises to interfere with government efficiency and to burden the courts with personnel disputes that should be settled by the executive hierarchy.