Case: 12-13628 Date Filed: 07/12/2013 Page: 1 of 25
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 12-13628 ________________________
D.C. Docket No. 5:11-cv-00497-MTT
DOCTOR AWANNA LESLIE, BETTYE RICHARDSON,
Plaintiffs - Appellees,
versus
HANCOCK COUNTY BOARD OF EDUCATION, GWENDOLYN REEVES, in her individual and official capacity as Superintendent of Hancock County Schools, ANTHONY GILCHRIST, DENISE RANSOM, ANNIE INGRAM, AZZALEE WILLIAMS-ASKEW, PAMELA LAWRENCE-INGRAM, in their individual and official capacity as members of the Hancock County Board of Education,
Defendants - Appellants. ________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________ (July 12, 2013) Case: 12-13628 Date Filed: 07/12/2013 Page: 2 of 25
Before PRYOR and JORDAN, Circuit Judges, and PRO, * District Judge.
PRYOR, Circuit Judge:
This appeal requires us to decide whether we have jurisdiction over an
appeal of a newly elected local school board and whether its individual members
violated the clearly established right to free speech of the superintendent of
education and her assistant superintendent when the board terminated or demoted
them for public comments about local tax policy. While Awanna Leslie served as
the Superintendent of the Hancock County School System and Bettye Richardson
served as Assistant Superintendent, they came to believe that the Hancock County
Tax Commissioner collected taxes at a deficient rate and failed to provide adequate
revenue projections, and they publicly complained about these matters. In
November 2010, a new Board of Education was elected, and the new Board
terminated Leslie and demoted Richardson for their comments about the Tax
Commissioner. Leslie and Richardson filed a complaint against the Board and its
members in both their official and individual capacities alleging that they had been
removed in retaliation for exercising their right to free speech under the First and
Fourteenth Amendments, U.S. Const. Amends. I, XIV; 42 U.S.C. § 1983. The
Board and its officials moved to dismiss for failure to state a claim and asserted the
defense of qualified immunity for the individual members. The defendants argued
* Honorable Philip M. Pro, United States District Judge for the District of Nevada, sitting by designation. 2 Case: 12-13628 Date Filed: 07/12/2013 Page: 3 of 25
that the plaintiffs’ speech was not protected by the First Amendment because it
was uttered as part of an employment duty, that the balance of interests outlined in
Pickering v. Board of Education of Township High School District 205, Will
County, Illinois, 391 U.S. 563, 88 S. Ct. 1731 (1968), favored the Board because
the plaintiffs were policymaking or confidential employees, and that qualified
immunity protected the individual members of the Board because any right that
Leslie and Richardson had was not clearly established. The district court denied
the motion to dismiss. The individual members of the Board appealed the denial of
qualified immunity, and the Board and its officials appealed the denial of their
motion to dismiss for failure to state a claim as inextricably intertwined with the
appeal of the individual members. We dismiss the appeal of the Board and its
officials for lack of jurisdiction, and we reverse the denial of qualified immunity
for the individual Board members because it is not clearly established that a
policymaking or confidential employee who speaks about policy, as Leslie and
Richardson did, can prevail under the balancing test of Pickering.
I. BACKGROUND
Awanna Leslie and Bettye Richardson served as the Superintendent and
Assistant Superintendent of the Hancock County School District, respectively. In
early 2009, Leslie and Richardson determined that the Hancock County Tax
Commissioner had been collecting taxes at a deficient rate. Leslie and Richardson
3 Case: 12-13628 Date Filed: 07/12/2013 Page: 4 of 25
believed that this deficient collection of taxes led to the underfunding of the School
District. They also believed that the Tax Commissioner failed to provide adequate
projections of tax revenue, which they believed made it impossible for them to
prepare a budget for the school district.
Leslie and Richardson publicly commented about the failure of the Tax
Commissioner to perform his duties. Leslie commented about deficient property
tax collection at three meetings of the Board of Education and at hearings of the
Hancock County Tax Commission. Her comments also appeared in the Atlanta
Journal-Constitution. In November and December 2009, Leslie also visited the
office of the Tax Commissioner to determine the reason for the deficient collection
of taxes, and Richardson, a member of Leslie’s leadership team, accompanied
Leslie on those trips.
In November 2010, voters elected new members to all but one of the seats
on the Hancock County Board of Education. The new chair of the Board,
Gwendolyn Reeves, was the sister-in-law of the Tax Commissioner. In January
2011, the Board fired Leslie. The Board did not inform Leslie of the reason for her
termination. Reeves then recommended the demotion of Richardson to Gifted
Coordinator and then to a teaching position in an elementary school. The Board
demoted Richardson in April 2011. Leslie and Richardson both believe that the
Board was sympathetic to the Tax Commissioner and terminated or demoted them
4 Case: 12-13628 Date Filed: 07/12/2013 Page: 5 of 25
because of their public criticism of him. Leslie and Richardson filed a complaint
against the Board of Education and its members, in their individual and official
capacities, for retaliation for the exercise of their right to freedom of speech under
the First and Fourteenth Amendments. See 42 U.S.C. § 1983.
The Board and its members, both as officials and as individuals, filed a
motion to dismiss. Fed. R. Civ. P. 12(b)(6). The defendants argued that Leslie and
Richardson had failed to state a claim upon which relief could be granted because
their speech was not protected by the First Amendment because it was uttered in
the performance of an employment duty, that the balance of interests under
Pickering favored the Board because Leslie and Richardson were policymaking or
confidential employees, and that the individual members of the Board were entitled
to qualified immunity. The district court denied the motion to dismiss. The
members of the Board, as individuals, then appealed the denial of qualified
immunity, and the Board and its officials appealed the denial of their motion as
inextricably intertwined.
II. STANDARD OF REVIEW
“We review questions of subject matter jurisdiction de novo.” Belleri v.
United States, 712 F.3d 543, 547 (11th Cir. 2013) (quoting Yunker v. Allianceone
Receivables Mgmt., Inc., 701 F.3d 369, 372 n.2 (11th Cir. 2012)). “A motion to
dismiss a complaint on qualified immunity grounds will be granted if the
5 Case: 12-13628 Date Filed: 07/12/2013 Page: 6 of 25
‘complaint fails to allege the violation of a clearly established constitutional
right.’” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (quoting
St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). “Whether the
complaint sets forth a violation is a question of law that we review de novo.” Id.
“We are required to accept the facts as set forth in the plaintiff’s complaint as true,
and our consideration is limited to those facts contained in the pleadings and
attached exhibits.” Id.
III. DISCUSSION
We divide our discussion of this appeal in two parts. First, we explain why
we lack jurisdiction over the appeal of the Board and its officials. Second, we
explain why the individual members of the Board are entitled to qualified
immunity.
A. We Have Jurisdiction Over the Appeal of the Denial of Qualified Immunity, but We Lack Jurisdiction Over the Appeal of the Board and Its Officials. . No party has challenged our jurisdiction in this appeal, but we are required
to address our subject matter jurisdiction. Edwards v. Prime, Inc., 602 F.3d 1276,
1287–89 (11th Cir. 2010). “As a general rule, an appeal may be taken . . . only
where the district court has disposed of all claims against all parties.” Hudson v.
Hall, 231 F.3d 1289, 1293 (11th Cir. 2000).
“[A] public official [sued in her individual capacity] may file an
interlocutory appeal of the denial of qualified immunity where the disputed issue is 6 Case: 12-13628 Date Filed: 07/12/2013 Page: 7 of 25
whether the official’s conduct violated clearly established law.” Stanley v. City of
Dalton, Ga., 219 F.3d 1280, 1286 (11th Cir. 2000). The individual members
appeal the denial of qualified immunity, and we have jurisdiction to review their
appeal because “the disputed issue is whether the official[s’] conduct violated
clearly established law.” Id.
The Board and its officials have also appealed as inextricably intertwined the
denial of their motion to dismiss for failure to state a claim, but we lack
jurisdiction to consider their appeal. “Under the pendent appellate jurisdiction
doctrine, we may address [otherwise] nonappealable orders if they are ‘inextricably
intertwined’ with an appealable decision or if ‘review of the former decision [is]
necessary to ensure meaningful review of the latter.’” Hudson, 231 F.3d at 1294
(internal quotation marks omitted). We have held that we may exercise “pendent
jurisdiction over a party not involved in the main appeal” when “the issues of the
nonappealable decision” meet the requirements for our exercise of pendent
jurisdiction. King v. Cessna Aircraft Co., 562 F.3d 1374, 1379 n.1 (11th Cir.
2009). But “we [have] interpreted” the decision of the Supreme Court in Swint v.
Chambers County Commission, 514 U.S. 35, 115 S. Ct. 1203 (1995), “to bar
pendent party jurisdiction” in “an official immunity appeal in which there was an
appeal by another party who could not assert official immunity,” King, 562 F.3d at
1379 n.1; see also Hudson, 231 F.3d at 1292 n.1 (“[T]he district court’s grant of
7 Case: 12-13628 Date Filed: 07/12/2013 Page: 8 of 25
summary judgment to the county and the official capacity defendants does not fall
within our pendent appellate jurisdiction.”); Harris v. Bd. of Educ. of the City of
Atlanta, 105 F.3d 591, 595 (11th Cir. 1997) (“In more recent decisions, the court
has [] concluded that we have no pendent party appellate jurisdiction.” (internal
quotation marks omitted)); Pickens v. Hollowell, 59 F.3d 1203, 1208 (11th Cir.
1995) (“Deputies Wilson and Hollowell request that we review the district court’s
denial of Rockdale County’s motion for summary judgment, but we are foreclosed
from doing so by [Swint], which held that we have no pendent party appellate
jurisdiction.”). And we have held that “we lack jurisdiction to review the Board’s
appeal on any issue,” when a local school board tried to piggy-back on an appeal
of the denial of qualified immunity by the individual members of that board.
Harris, 105 F.3d at 595.
B. The Individual Board Members Are Entitled to Qualified Immunity.
“Qualified immunity offers complete protection for individual public
officials performing discretionary functions insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th
Cir. 2012) (quoting Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012)
(internal quotation marks omitted)). “[T]o obtain qualified immunity, an official
must first establish that he acted within his discretionary authority.” Morton v.
8 Case: 12-13628 Date Filed: 07/12/2013 Page: 9 of 25
Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013). Because it is undisputed that the
individual board members acted within their discretionary authority, Leslie and
Richardson bear the burden to “establish that the [individual board members]
violated [their] constitutional rights[] and . . . that the right involved was ‘clearly
established’ at the time of the putative misconduct.” Terrell v. Smith, 668 F.3d
1244, 1250 (11th Cir. 2012). “We are ‘permitted to exercise [our] sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.’”
Loftus, 690 F.3d at 1204 (quoting Pearson v. Callahan, 555 U.S. 223, 236, 129 S.
Ct. 808, 818 (2009)).
The inquiry whether a constitutional violation is clearly established “is
‘undertaken in light of the specific context of the case, not as a broad general
proposition.’” Terrell, 668 F.3d at 1250 (quoting Lee v. Ferraro, 284 F.3d 1188,
1194 (11th Cir. 2002)). “The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a reasonable [state
official] that his conduct was unlawful in the situation he confronted.” Loftus, 690
F.3d at 1204 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)).
“To answer this question, we look to law as decided by the Supreme Court, the
Eleventh Circuit, or the Supreme Court of [Georgia].” See id. (quoting Barnes v.
Zaccari, 669 F.3d 1295, 1307 (11th Cir. 2012)). “[T]he salient question . . . is
9 Case: 12-13628 Date Filed: 07/12/2013 Page: 10 of 25
whether the state of the law . . . gave [the individual board members] fair warning
that their alleged treatment of [Leslie and Richardson] was unconstitutional.”
Vinyard, 311 F.3d at 1350 (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct.
2508, 2516 (2002)).
Leslie and Richardson “must ‘demonstrate that the contours of the right were
clearly established in [one of three] ways.’” Loftus, 690 F.3d at 1204 (quoting
Terrell, 668 F.3d at 1255). First, if judicial precedents in an area are tied to
particular facts, Leslie and Richardson must “show that a materially similar case
has already been decided.” Id. (quoting Terrell, 668 F.3d at 1255). Second, if
judicial precedents are not tied to particular facts, Leslie and Richardson may
“point to a broader, clearly established principle [that] should control the novel
facts [of the] situation.” Id. (quoting Terrell, 668 F.3d at 1255). To succeed under
this approach, “the principle must be established with obvious clarity by the case
law so that every objectively reasonable government official facing the
circumstances would know that the official’s conduct did violate federal law when
the official acted.” Id. at 1205 (quoting Terrell, 668 F.3d at 1256) (alteration
omitted). Third, in a narrow category of matters, “the conduct involved in the case
may so obviously violate [] th[e] constitution that prior case law is unnecessary.”
Id. (quoting Terrell, 668 F.3d at 1255).
10 Case: 12-13628 Date Filed: 07/12/2013 Page: 11 of 25
We divide our discussion of qualified immunity in three parts. First, we
discuss whether the law was clearly established that a public employer can be held
liable for retaliation against a policymaking or confidential employee for speech
related to policy or politics. Second, we discuss whether Leslie and Richardson
were policymaking or confidential employees. Third, we discuss whether Leslie
and Richardson’s speech concerned policy or politics.
1. The Law Is Not Clearly Established that a Government Employer Can Be Held Liable for Retaliation Against a Policymaking or Confidential Employee for Speech About Policy.
“The law is well established that a state employee may not be discharged for
speech protected under the First Amendment,” Vila v. Padron, 484 F.3d 1334,
1339 (11th Cir. 2007), but “a public employee’s right to freedom of speech is not
absolute,” id. “To set forth a claim of retaliation, a public employee must show:
(1) she was speaking as a citizen on a matter of public concern; (2) her interests as
a citizen outweighed the interests of the State as an employer; and (3) the speech
played a substantial or motivating role in the adverse employment action.” Id. “If
the plaintiff establishes these elements, the burden shifts to the defendant to prove
it would have made the same adverse employment decision absent the employee’s
speech.” Id.
To determine whether an employee’s interest as a citizen outweighed the
interests of the state as an employer, we apply the balancing test defined by the
11 Case: 12-13628 Date Filed: 07/12/2013 Page: 12 of 25
Supreme Court in Pickering. This test seeks “to arrive at a balance between the
interests of the [public employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the
efficiency of public services it performs through its employees.” Pickering, 391
U.S. at 568, 88 S. Ct. at 1734–35. The Supreme Court has instructed that “the
manner, time, and place of the employee’s expression” and “the context in which
the dispute arose” are relevant to the Pickering balance. Rankin v. McPherson,
483 U.S. 378, 388, 107 S. Ct. 2891, 2899 (1987). The Court has also “recognized
as pertinent considerations whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on close working
relationships for which personal loyalty and confidence are necessary, or impedes
the performance of the speaker’s duties or interferes with the regular operation of
the enterprise.” Id.
The Supreme Court has developed a different, but related, approach to
resolve complaints of retaliation in violation of the First Amendment based on
political affiliation or belief in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673 (1976),
and Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287 (1980). See O’Hare Truck
Serv., Inc. v. City of Northlake, 518 U.S. 712, 719, 116 S. Ct. 2353, 2357–58
(1996); Brett v. Jefferson Cnty., Ga., 123 F.3d 1429, 1432–33 (11th Cir. 1997). In
Elrod, the Court held that a “nonpolicymaking, nonconfidential government
12 Case: 12-13628 Date Filed: 07/12/2013 Page: 13 of 25
employee” cannot “be discharged or threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his political beliefs.” 427 U.S. at
375, 96 S. Ct. at 2691 (Stewart, J., joined by Blackmun, J., concurring). The
Supreme Court later clarified, in Branti, that “the ultimate inquiry is not whether
the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the
question is whether the hiring authority can demonstrate that [political] affiliation
is an appropriate requirement for the effective performance of the public office
involved.” 445 U.S. at 518, 100 S. Ct. at 1295. But the Court has continued to
consider whether an employee holds a policymaking or confidential position to
determine whether the employee may be dismissed or demoted because of his
political beliefs. Id. at 519–20, 100 S. Ct. at 1295. Employees who serve in these
positions can be terminated on the basis of political affiliation or belief because the
government has “a compelling interest in infringing [their] First Amendment
rights.” Rutan v. Republican Party of Ill., 497 U.S. 62, 71 n.5, 110 S. Ct. 2729,
2735 n.5 (1990).
The individual board members argue that it is not clearly established that the
Pickering balance does not favor the government employer as a matter of law when
a policymaking employee speaks about policy, and we agree. Neither the Supreme
Court, this Court, nor the Supreme Court of Georgia has answered the question
whether the Pickering balance of interests favors the government employer when
13 Case: 12-13628 Date Filed: 07/12/2013 Page: 14 of 25
an employee who serves in a policymaking or confidential role can be dismissed
based on political affiliation or belief.
The Supreme Court has not addressed the effect on the Pickering balance of
determining that an employee holds a policymaking or confidential position under
Elrod and Branti. The Supreme Court has explained, in dicta, only that these
inquiries are “different, though related,” and that, “where specific instances of the
employee’s speech or expression . . . are intermixed with a political affiliation
requirement[,] . . . the balancing Pickering mandates will be inevitable.” O’Hare
Truck Serv., 518 U.S. at 719, 116 S. Ct. at 2357–58.
Although we have addressed whether the Pickering balance or the
Elrod/Branti analysis applies in several decisions, see, e.g., McKinley v. Kaplan,
262 F.3d 1146, 1149 n.4 (11th Cir. 2001); Brett, 123 F.3d at 1432–33; Morris v.
Crow, 117 F.3d 449, 455–56 (11th Cir. 1997); McCabe v. Sharrett, 12 F.3d 1558,
1561–1570 (11th Cir. 1994); Stough v. Gallagher, 967 F.2d 1523, 1526–28 (11th
Cir. 1992), we have not decided the effect on the Pickering balance when an
employee is a policymaking or confidential employee, see McKinley, 262 F.3d at
1149 n.4 (applying Pickering in an appeal based primarily on the exercise of an
employee’s right to free speech); Brett, 123 F.3d at 1433 (remanding for the
district court to decide which test to apply); Morris, 117 F.3d at 449, 457–58
(expressing doubts about the merits of a political patronage theory before
14 Case: 12-13628 Date Filed: 07/12/2013 Page: 15 of 25
determining that the Pickering balance favored the employer); McCabe, 12 F.3d at
1569–74 (concluding that a claim based on a right to intimate association failed
under either the Pickering balance or the Elrod/Branti analysis); Stough, 967 F.2d
at 1526–29 (applying the Pickering balance to an employee’s speech and
concluding that the employer was not entitled to qualified immunity because the
employer had “decided that the [employee’s position was] not so closely identified
with the [employer] that personal loyalty is required, and that a political dispute
between the [employer] and a [person in the employee’s position] may not
necessarily disrupt normal working conditions”). “We have held that the Elrod-
Branti line of cases applies when a public employee suffers an adverse
employment action based on party affiliation or political beliefs rather than the
content of the employee’s speech or expressions,” but that “[t]he Pickering
analysis . . . applies when a public employee suffers an adverse employment action
based on the employee’s expressive conduct or speech.” McKinley, 262 F.3d at
1149 n.4. But we have not decided their interrelationship when an employer
retaliates against a policymaking or confidential employee for speech about policy.
No party has cited any decision of the Supreme Court of Georgia that
addresses whether a policymaking or confidential employer has a right not to be
retaliated against for speech about policy, and we have not found any decision of
the Supreme Court of Georgia on this issue. The only decision of the Supreme
15 Case: 12-13628 Date Filed: 07/12/2013 Page: 16 of 25
Court of Georgia that cites both Pickering and Elrod does not discuss the
relationship between those decisions. See Galer v. Bd. of Regents of the Univ.
Sys., 236 S.E.2d 617, 619 (Ga. 1977).
In the absence of precedent of the Supreme Court, this Court, or the
Supreme Court of Georgia that holds that a policymaking or confidential employee
has a right not to be dismissed for speech about policy, Leslie and Richardson
cannot “show that a materially similar case has already been decided.” Loftus, 690
F.3d at 1204 (quoting Terrell, 668 F.3d at 1255). And Leslie and Richardson must
either “point to a broader, clearly established principle [that] should control the
novel facts [of the] situation” or prove that “the conduct involved in the case [] so
obviously violate[s] [] th[e] constitution that prior case law is unnecessary.” Id. at
1204–05 (quoting Terrell, 668 F.3d at 1255). Leslie and Richardson argue that the
decision of the Supreme Court in Pickering clearly established that they had a right
not to be retaliated against for their speech, but other courts are divided about this
issue.
The circuit courts that have addressed whether a policymaking or
confidential employee may prevail under the Pickering balance have taken three
different approaches. The first approach, taken by the First, Sixth, and Seventh
Circuits, “hold[s] that where an employee is in a policymaking or confidential
position and is terminated for speech related to political or policy views, the
16 Case: 12-13628 Date Filed: 07/12/2013 Page: 17 of 25
Pickering balance favors the government as a matter of law.” See Rose v.
Stephens, 291 F.3d 917, 922 (6th Cir. 2002); see also Foote v. Town of Bedford,
642 F.3d 80, 84 (1st Cir. 2011); Bonds v. Milwaukee Cnty., 207 F.3d 969, 978 (7th
Cir. 200) (“[W]e held that the rationale for the policymaking employee exception
also covered [expression of] viewpoints relating to the policymaking employee’s
duties.”). These courts observe that “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.” Bonds, 207 F.3d at 978. And
because disagreement can undermine the goals of the employer, the employer’s
interest in effective governance outweighs the employee’s interest in speaking
when an employee in a policymaking position expresses political or policy views.
See Foote, 643 F.3d at 84. These courts also “recognize[] the inherent
inconsistency in a rule that protects a policymaking employee who overtly
expresses his disloyalty while denying that same protection to one who merely
belongs to a different political party.” Rose, 291 F.3d at 922. But these courts
limit the application of this rule to situations where the speech is about political or
policy views because the interest of the employer in having loyal political servants
does not apply outside that context. Id. The second approach, taken by the Ninth
Circuit, first inquires whether the employee serves in a position in which political
17 Case: 12-13628 Date Filed: 07/12/2013 Page: 18 of 25
affiliation or patronage is a proper consideration and then treats that inquiry as
“dispositive of any First Amendment retaliation claim.” Biggs v. Best, Best &
Krieger, 189 F.3d 989, 994–95 (9th Cir. 1999). If the court concludes that the
employee is a policymaker or confidential employee, the employer prevails
without applying the Pickering balance. See Fazio v. City & Cnty. of San
Francisco, 125 F.3d 1328, 1332 (9th Cir. 1997). The third approach, taken by the
Second and Eighth Circuits, limits the application of the decisions of the Supreme
Court that address political affiliation. Hinshaw v. Smith, 436 F.3d 997, 1005–07
(8th Cir. 2006); Lewis v. Cowen, 165 F.3d 154, 162–63 (2d Cir 1999). These
courts observe that the Supreme Court “has never stated that the discharged
employee’s position in the employment hierarchy would automatically tilt the
Pickering balance in the employer’s favor.” McEvoy v. Spencer, 124 F.3d 92, 103
(2d Cir. 1997); see also Hinshaw, 436 F.3d at 1006 (“We hesitate to expand the
Elrod-Branti exception to a case where a party affiliation is not alleged as a basis
for the termination.”). But these courts “recognize the necessarily adverse effect
an employee’s speech on a matter related to the employee’s policymaking or
confidential duties would have on the factors enumerated in the Pickering
balancing test,” because the employers have a heightened interest in employee
loyalty and the impression of public loyalty when political affiliation is a
permissible consideration. Hinshaw, 436 F.3d at 1006–08.
18 Case: 12-13628 Date Filed: 07/12/2013 Page: 19 of 25
No clearly established law bars the termination of a policymaking or
confidential employee for speaking about policy. The correct application of the
Pickering balance to a policymaking or confidential employee who speaks about
policy is not “established with [such] obvious clarity by the case law [] that every
objectively reasonable government official facing the circumstances would know
that the official’s conduct did violate federal law when the official acted.” Loftus,
690 F.3d at 1205 (quoting Terrell, 668 F.3d at 1256). The members of the Board
are entitled to qualified immunity in their individual capacities if Leslie and
Richardson were policymaking employees who spoke about policy.
2. A Local School Superintendent in Georgia Is a Policymaking or Confidential Employee.
A local school superintendent under Georgia law is a policymaking or
confidential employee for the purpose of the Elrod/Branti inquiry. Ordinarily the
determination that an employee is a policymaking or confidential employee is a
question of fact. See Underwood v. Harkins, 698 F.3d 1335, 1342 (11th Cir.
2012). But we have applied a categorical approach based on the statutory authority
of an employee when the employee is empowered by the relevant state or local law
to act as the alter ego of her employer. At oral argument, counsel for Leslie and
Richardson conceded that Richardson’s complaint rises or falls with Leslie’s
complaint because Richardson served as Assistant Superintendent and as part of
Leslie’s leadership team and her speech was in concert with Leslie’s speech. 19 Case: 12-13628 Date Filed: 07/12/2013 Page: 20 of 25
Our predecessor court first concluded that an employee was a policymaker
or confidential employee based only on the legal definition of that employee’s
duties. Stegmaier v. Trammell, 597 F.2d 1027, 1040 (5th Cir. 1979). In
Stegmaier, a circuit court clerk in Alabama tried to dismiss the deputy clerk
because the deputy clerk had not supported the election of the circuit court clerk.
Id. at 1030–32. The former Fifth Circuit held that the deputy clerk was a
confidential employee without inquiring beyond the statutory authority of the
deputy clerk:
When, by statute, a deputy clerk is empowered to conduct all business which the clerk is authorized to conduct, and when, by statute, the clerk is subject to civil liability and fines for failure to perform his statutory duties, the Circuit Clerk must be afforded the opportunity to select his single deputy clerk; he must be able to select a deputy in whom he has total trust and confidence and from whom he can expect, without question, undivided loyalty.
Id. at 1040 (citations omitted).
We reached a similar conclusion in Terry v. Cook, 866 F.2d 373 (11th Cir.
1989), where a county sheriff in Alabama tried to replace all of the employees of
his office who had opposed his election, id. at 374. We held that the sheriff could
dismiss the deputy sheriffs. Id. at 377. We did not rely on the actual duties of the
deputy sheriffs to reach our conclusion in Terry. Instead, we ruled, “Under
Alabama law, a deputy sheriff is the general agent of and empowered to enter into
business transactions for the sheriff. Any transaction within the scope of the
20 Case: 12-13628 Date Filed: 07/12/2013 Page: 21 of 25
sheriff’s power may be acted on by his deputy.” Id. We also concluded that “[t]he
deputy sheriff is the alter ego of the sheriff, and the sheriff is civilly liable for
actions committed by a deputy done in the performance of his duty.” Id. (citation
omitted). Based on these factors, we concluded that “[t]he closeness and
cooperation required between sheriffs and their deputies necessitates the sheriff’s
absolute authority over their appointment and/or retention.” Id.
We recently acknowledged that we apply a categorical approach based on
state law to determine whether an employee is a confidential employee or
policymaker. Underwood, 698 F.3d at 1343–44. In Underwood, a newly-elected
superior court clerk fired a deputy clerk who had run against her in a primary
election. Id. at 1337–38. After a review of Terry and Stegmaier, we held that “an
elected official may dismiss an immediate subordinate for opposing her in an
election without violating the First Amendment if the subordinate, under state or
local law, has the same duties and powers as the elected official.” Id. at 1343. We
treated the deputy clerk as a policymaking or confidential employee because “a
person holding that position is essentially the legal alter ego of the clerk.” Id. We
acknowledged that the authority of the deputy clerk “did not extend to the outer
limits authorized by Georgia law,” but we held that the deputy clerk’s authority
under state law controlled our analysis:
What matters in a case like this one is not what the subordinate actually does on a day-to-day basis, but rather what the subordinate is 21 Case: 12-13628 Date Filed: 07/12/2013 Page: 22 of 25
legally empowered to do under state or local law. In other words, we look at the position in the abstract and at what state or local law allows a person in that position to do, and not at a snapshot of the position as it is being carried out by a given person at a given point in time under a given elected official.
Id. at 1344. We also stated that the categorical approach made sense because
“[t]he fact that an elected official has not given a particular immediate subordinate
all of the discretionary or policymaking authority available under state or local law
does not prevent that official (or a future one) from changing her mind, or from
choosing to expand a subordinate’s duties if she is able to hire the subordinate of
her choice.” Id.
The key factor in our decisions that apply a categorical approach is that the
employee was empowered by law to act as the alter ego of her employer.
Although these decisions have been limited to “the confines of the case before us,”
id. at 1343, the rationale of these decisions applies with even more force when an
official serves as the alter ego who executes the policies of a legislative body
because the official not only “may act” upon matters within the authority of her
superior, Terry, 866 F.2d 377, but must act for the policies adopted by the superior
to have any effect.
As the superintendent of a local school district, Leslie served in a
policymaking or confidential role under our categorical approach to the
Elrod/Branti inquiry because she was the executive officer on whom the Board
22 Case: 12-13628 Date Filed: 07/12/2013 Page: 23 of 25
relied for the enforcement of its policies. Georgia law makes a local school
superintendent the alter ego of the local school board. Georgia law provides that
the superintendent “shall be the executive officer of the local board of education”
and “shall be the agent of the local board in procuring such school equipment and
materials as it may order.” Ga. Code § 20-2-109. The Supreme Court of Georgia
has described the superintendent as the “chief fiscal officer of the board of
education.” Hicks v. Arnall, 368 S.E.2d 733, 735 (Ga. 1988). And Georgia law
provides that “[i]t shall be the local school superintendent’s duty to enforce all
regulations and rules . . . of the local board according to the laws of the state and
the rules and regulations made by the local board that are not in conflict with state
laws.” Ga. Code § 20-2-109. The superintendent is an alter ego of the Board,
which must rely on her not only to enter transactions on behalf of the Board, but
also to enforce its policies. Although Georgia law provides that a local school
superintendent may not bind the local school board when she signs a contract
unless the school board permitted the superintendent to enter the contract, see
Knight v. Troup Cnty. Bd. of Educ., 242 S.E.2d 263, 264 (Ga. App. 1978), the
ability of the Board to limit the authority of a superintendent does not undermine
the conclusion that a superintendent is a policymaking or confidential employee.
We have explained that “we look at the position in the abstract and at what state or
local law allows a person in that position to do, and not a snapshot of the position
23 Case: 12-13628 Date Filed: 07/12/2013 Page: 24 of 25
as it is being carried out by a given person at a given point in time under a given
elected official” to determine whether an employee is the legal alter ego of her
employer. See Underwood, 698 F.3d at 1344. “This categorical approach . . .
makes practical sense” because “[t]he fact that an elected [board] has not given a
particular immediate subordinate all of the discretionary or policymaking authority
available under state or local law does not prevent that [board] (or a future one)
from changing [its] mind, or from choosing to expand a subordinate’s duties if [it]
is able to hire the subordinate of [its] choice.” Id.
3. Leslie and Richardson Spoke About Policy.
The facts alleged in Leslie’s complaint make clear that her speech about
policy led to her termination. The complaint alleges that Leslie complained at
public meetings of the School Board, at public hearings of the Tax Commission,
and in an article in the Atlanta-Journal Constitution about the failure of the Tax
Commissioner to collect property taxes at the correct rate and provide accurate
revenue projections to Leslie. The complaint also alleges that the deficient tax
collection “result[ed] in the under-funding of the Hancock County School System”
and “made it impossible for the Plaintiffs to adequately perform their duties as
administrators in the Hancock County School System.” And the complaint alleges
that, because of the failure of the Tax Commissioner to provide accurate revenue
projections, Leslie and Richardson were “routinely unable to prepare a budget for
24 Case: 12-13628 Date Filed: 07/12/2013 Page: 25 of 25
the Hancock County School System.” Ga. Comp. R. & Regs. § 160-5-2-.21. The
administration of local taxes and the effect of that administration on the local
school district are quintessential policy matters.
Leslie has described her speech as being about policy. In her response to the
motion to dismiss, Leslie argued that her “statements actually enhanced [her] daily
functioning by putting pressure on the Tax Commissioner to properly fund
Hancock County Schools” and that, “[w]ith a proper rate of tax collected, the
School District would be able to operate more effectively.”
Leslie’s complaint against the individual members of the board is barred by
qualified immunity, and because Richardson concedes that her complaint rises or
falls with Leslie’s complaint, Richardson’s complaint is barred too. We reverse
the denial of qualified immunity for the individual members of the Board.
IV. CONCLUSION
We DISMISS the appeal of the Board and its officials for lack of
jurisdiction and REVERSE the denial of qualified immunity for the individual
members of the Board.