Bonds, Michael v. Milwaukee County ( 2000 )

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the County of Milwaukee rescinded its offer of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.