From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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 firstname.lastname@example.org
To contact the editor responsible for this story: Susan J. McGolrick at email@example.com
Summaries of labor and employment law cases denied Supreme Court review appear in Section E.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)