Harold Werkheiser v. Pocono Township

780 F.3d 172, 39 I.E.R. Cas. (BNA) 1413, 2015 U.S. App. LEXIS 3591, 98 Empl. Prac. Dec. (CCH) 45,266, 2015 WL 968290
CourtCourt of Appeals for the Third Circuit
DecidedMarch 6, 2015
Docket13-3646
StatusPublished
Cited by27 cases

This text of 780 F.3d 172 (Harold Werkheiser v. Pocono Township) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harold Werkheiser v. Pocono Township, 780 F.3d 172, 39 I.E.R. Cas. (BNA) 1413, 2015 U.S. App. LEXIS 3591, 98 Empl. Prac. Dec. (CCH) 45,266, 2015 WL 968290 (3d Cir. 2015).

Opinion

OPINION

COWEN, Circuit Judge.

This matter requires us to decide whether elected officials are entitled to qualified immunity when they retaliate against a fellow official by denying him reappointment to a non-elected position because of comments he made in his capacity as an elected official. Because we conclude that the contours of the First Amendment right at issue were not clearly established, we hold that Appellants are entitled to qualified immunity on their federal claim. 1

*175 I.

In 2007, Harold Werkheiser was elected to serve on the three-member Board of Supervisors within Pocono Township. His six-year term began in January of 2008 and was scheduled to expire at the end of 2013. In addition to Werkheiser, the Board of Supervisors was comprised of Defendant Frank Hess, who was elected in 2009, and Defendant Henry Bengel, who was elected in 2011 (together, “Appellants”). Defendant Pocono Township (the “Township”), is a Second Class Township within the County of Monroe, Pennsylvania.

Township Supervisors are permitted to hold positions of employment with the Township, including Roadmaster. The Roadmaster, or Director of Public Works, is a Township employee responsible for the supervision of all the activities of the Township Road Department and the Township Parks and Recreation Department. In 2008, Werkheiser was appointed Roadmaster by the Board of Supervisors.

Hess began receiving wages in 2011 and, in 2012, assumed administrative duties previously performed by a predecessor supervisor. He received approximately $36,000 per year in salary, health insurance, and other employee benefits, and holds the titles of Chairman of the Board of Supervisors, Secretary, and Treasurer. In 2012, Hess became temporarily disabled and took leave from the Township for ten days. During his absence, Frank Froio was selected by a consultant to the Township to assume Hess’s administrative duties. Froio was not appointed by the Board of Supervisors. On February 6, 2012, Bengel made a motion, seconded by Hess, to hire Froio as Township Administrator. Froio was to receive compensation of approximately $70,000 annually. Werkheiser opposed the motion, but it nonetheless carried.

As Froio’s position developed, Hess’s responsibilities and workload decreased. Hess, however, continued to collect approximately the same compensation. Werkheiser voiced his objection to the cost of Froio’s position to the Township and to the creation of a new position with greater expense. He also objected to paying Hess when his duties were being performed by Froio, as well as to the appointment of an outside grant-writer, who would be performing work that Werkheiser asserted should be performed by Froio and Hess.

In December of 2012, Appellants decided they no longer wanted Werkheiser to serve as Roadmaster. Along with several others, they began private deliberations to discuss denying Werkheiser reappointment for 2013 and to instead replace him with Bengel. In January of 2013, Werkheiser was formally denied reappointment as Roadmaster at a noticed reorganization meeting.

As a result of the decision to not reappoint him, Werkheiser commenced an action in Pennsylvania state court. Defendants removed the action to federal court, and Werkheiser subsequently filed an amended complaint. In that complaint, Werkheiser asserted a claim for First Amendment retaliation, as well as a state law claim under the Second Class Township Code and Pennsylvania Sunshine Law. As to his First Amendment retaliation claim, Werkheiser alleges that he was denied his position as Roadmaster as a result of speech he expressed in his capacity as an elected official concerning the Board of Supervisors’ overpayment for administrative duties.

II.

Appellants filed a motion to dismiss both claims, asserting, among other things, that they were entitled to qualified immunity as *176 to Werkheiser’s federal claim against them. They argued that because Werkheiser’s speech concerning Township resources and payments were made in his official capacity as an elected representative of the Township, the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), applied. Accordingly, they asserted, Werkheiser’s speech was not protected by the First Amendment, and he was unable to demonstrate the violation of his constitutional rights. For his part, Werkheiser disputed the applicability of Garcetti, arguing that speech by elected officials should be treated differently than speech by public employees, and that, as an elected official, his speech'was entitled to First Amendment protection not granted to public employees. The District Court agreed with Werkheiser, noting that there were important differences between the public employees discussed in Garcetti and elected officials. It therefore concluded that Werkheiser had established a constitutional violation.

Appellants also argued that they were entitled to qualified immunity because the law regarding Werkheiser’s rights was not clearly established. The District Court rejected this argument as well. The District Court concluded that the Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116, 136-37, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966), clearly established that elected officials are entitled to exercise their First Amendment rights free from retaliation. Further explaining ■ that the Supreme Court had said nothing in Garcetti that overruled or altered its opinion in Bond, the District Court denied Appellants’ motion to dismiss. The current appeal followed.

III.

The Supreme Court has established a two-step analysis that governs whether an official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). 2 First, whether the facts alleged by the plaintiff show the violation of a constitutional right, and second, whether the right at issue was clearly established at the time of the alleged misconduct. Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.2010) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). We may address the two Saucier prongs in either order, at our discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Because we do not believe the right at issue here was clearly established, we begin with the second step.

“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” Ashcroft v. al-Kidd, — U.S. -, 131 S.Ct. 2074, 2083, 179 L:Ed.2d 1149 (2011) (quoting Anderson v. Creighton,

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Bluebook (online)
780 F.3d 172, 39 I.E.R. Cas. (BNA) 1413, 2015 U.S. App. LEXIS 3591, 98 Empl. Prac. Dec. (CCH) 45,266, 2015 WL 968290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-werkheiser-v-pocono-township-ca3-2015.