Justices Won't Review Town Official's Free Speech Claim

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By Kevin McGowan

Nov. 2 — Denying a former Pennsylvania township supervisor's petition, the U.S. Supreme Court Nov. 2 declined to review whether qualified immunity shields the supervisor's fellow board members from his First Amendment retaliation claim over his removal from a paid township job.

The justices denied Harold Werkheiser review of a U.S. Court of Appeals for the Third Circuit decision dismissing his constitutional claim against Pocono Township supervisors Frank Hess and Henry Bengel because Werkheiser's asserted First Amendment right wasn't “clearly established” when Hess and Bengel decided not to renew his appointment to the paid position of township roadmaster (780 F.3d 172, 39 IER Cases 1413 (3d Cir. 2015)).

In seeking review, Werkheiser said Supreme Court precedent establishes that elected public officials, including local supervisors, have First Amendment free speech rights that are no different from those of “citizen critics” of government action. It also was clearly established that elected municipal officers can't lawfully remove a fellow elected official from his paid township employment in retaliation for that individual's protected speech as an elected official, Werkheiser said.

But in a brief opposing review, Hess and Bengel said Werkheiser's argument amounts to a contention the Third Circuit wrongly applied settled principles and that doesn't warrant Supreme Court review.

In any event, the appeals court “properly determined” it wasn't “clearly established” that an elected official's speech is entitled to First Amendment protection from retaliation, the two supervisors said. It also wasn't clearly established the type of alleged retaliation that was involved—a decision to remove Werkheiser from a job unrelated to his supervisor duties—triggers the First Amendment, the two supervisors said.

Werkheiser's loss of the roadmaster position had no affect on his ability to perform his supervisor's role, they said.

Elected Officials Protected

Werkheiser argued in his petition that Bond v. Floyd, 385 U.S. 116 (1966), established that elected officials who speak on citizens' behalf are entitled to the same First Amendment protections as citizens who criticize the government.

He contrasted Bond with Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006), in which the Supreme Court said public employees have First Amendment protection only when speaking as citizens on matters of public concern (104 DLR AA-1, 5/31/06).

“In contrast to Garcetti, when employees are not speaking as citizens for First Amendment purposes, in Bond, elected officials have First Amendment rights equivalent to citizen-critics' rights, and in speaking on behalf of the citizens those officials represent,” Werkheiser said.

By removing Werkheiser from his paid township job in reprisal for his statements as a supervisor, Hess and Bengel violated “clearly established” law that adverse actions that would discourage a reasonable person from engaging in protected speech are unlawful retaliation, Werkheiser said.

The Third Circuit therefore erred in holding the two supervisors had qualified immunity from Werkheiser's First Amendment retaliation claim brought under the Civil Rights Act of 1871 (42 U.S.C. § 1983), he said.

Cletus P. Lyman and Michael S. Fettner of Lyman & Ash in Philadelphia represented Werkheiser. Edward J. Easterly, George C. Hlavac and Steven E. Hoffman of Norris McLaughlin & Marcus in Philadelphia represented the township defendants.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Summaries of labor and employment law cases denied Supreme Court review appear in Section E.