Foote v . Town of Bedford CV-09-171-PB 08/13/10

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

William Foote

v. Case N o . 09-cv-171-PB Opinion N o .

Town of Bedford, et a l .

MEMORANDUM AND ORDER

William Foote sued the Town of Bedford, Michael Izbicki,

Robert Young, Paul F. Roy, Sr., and William Dermody in state

court pursuant to

, alleging that the defendants

retaliated against him for engaging in speech protected by the

First Amendment. Foote also asserted three state-law claims.

The defendants removed the case to this court and now seek

summary judgment. For the reasons set forth below, I grant

defendants’ motions for summary judgment with respect to the

First Amendment claim and remand the remainder of the case to

state court.

I. BACKGROUND

Foote served on the Bedford Parks and Recreation Commission,

also known as the Recreation Commission, between May 2005 and

March 2009, and served as its Chairman between March 2008 and March 2009. (Izbicki Aff., Doc. N o . 11-2, ¶¶ 4 , 7 ; Notice of

Removal Ex. A (hereinafter “Compl.”), Doc. N o . 1-1, ¶ 10.)

According to the Bedford Town Charter, the responsibilities of

the Commission are (1) to “make recommendations to the Town

Council as to the acquisition, holding, and disposition of real

and personal property pursuant to appropriations authorized by

the budgetary town meeting,” (2) to “recommend to the Town

Council all rules and regulations regarding the operation of

recreation facilities,” and (3) to “recommend employment of full

or part-time employees to the Town Manager.” (Charter of the

Town of Bedford, Doc. N o . 13-1, § 1-11-1(c)(2).) The Charter

also specifies that “[t]he Recreation Commission shall have all

the powers granted to recreation committees by state law.” (Id.

§ 1-11-1(c)(4).) Foote’s memoranda do not describe the specific

duties he undertook as a member of the Commission.

In March 2009, Foote unsuccessfully ran for a position on

the Bedford School Board. (Compl., Doc. N o . 1-1, ¶ 11.) During

his election campaign, Foote criticized the School Board. (Id.

¶ 15.) After losing the election, he “stated . . . that he was

going to be watching how the School Board handled its oil

contract, rising costs in the state retirement system, and

capital funds.” (Id.)

-2- At some point before his term on the Commission expired,

Foote made various comments regarding the development of the

Bedford Village Common (“the Village Common”). 1 (See id.)

Specifically, Foote (1) “advocated use of impact fees2 to help

develop” the Common, (2) “made comments at a public meeting of

the Village Common Committee . . . to the effect that the

Committee would not be able to raise funds unless the Town made

available $110,000 in impact fees,” (3) “opposed the Town

Council’s plan to revamp the Village Common Committee” and (4)

“criticized the Town Council for being unwilling to spend impact

fees on the proposed Bedford Village Common.” (Id.)

1 The Village Common is a parcel of land that the Town is attempting to develop into a “special community park” that will be equipped with a bandstand, a natural skating pond and warming hut, and various other amenities. (Bedford Village Common Development Committee, http://www.bedfordnh.org/pages/BedfordNH_BComm/Common/Index (last visited Aug. 3 , 2010).) 2 The “impact fees” Foote references in his complaint are presumably “recreation impact fees” that the Town collects from its residents based upon the type of home in which they live and the age of the home’s residents. (See Parks and Recreation Commission Minutes, 12/09/2008, http://www.ci.bedford.nh.us/pages/bedfordNH_parksMin/2008/S014EDD D3 (last visited Aug. 3 , 2010) (discussing the impact fees paid by families in different types of homes, and noting that during the 12/9/08 meeting, the Commission voted “to recommend to [the] Town Council that $110,000 of the recreation impact fees . . . be appropriated to the Bedford Village Common Park project”).

-3- On or about March 1 6 , 2009, the Town Council voted to

appoint two individuals to three-year terms on the Commission,

and one individual to a one-year alternate position. (Compl.,

Doc. N o . 1-1, ¶ 1 3 ; Izbicki Aff., Doc. N o . 11-2, ¶¶ 15-16.)

Foote was not reappointed. (See Compl., Doc. N o . 1-1, ¶ 13.) At

the time, the individual defendants were all members of the Town

Council.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The evidence submitted in support of the

motion must be considered in the light most favorable to the

nonmoving party, indulging all reasonable inferences in its

favor. See Navarro v . Pfizer Corp.,

0 , 94 (1st Cir.

2001).

A party seeking summary judgment must first identify the

absence of any genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

-4- for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

. The

opposing party “may not rely merely on allegations or denials in

its own pleading; rather, its response must . . . set out

specific facts showing a genuine issue for trial.” Fed. R. Civ.

P. 56(e)(2).

III. ANALYSIS

A. First Amendment Retaliation Claim

Foote alleges that the defendants retaliated against him for

engaging in speech protected by the First Amendment when they

failed to reappoint him to the Recreation Commission after he

criticized the School Board and the Town Council. (Compl., Doc.

N o . 1-1, ¶ 15.) The defendants respond that Foote is ineligible

for the protection he seeks because he was (1) a volunteer and

(2) a victim of non-reappointment rather than termination. (See

Mem. of Law in Supp. of Town of Bedford’s Initial Mot. for Summ.

J., Doc. N o . 11-1, at 9; Mem. of Law in Supp. of Mot. for Summ.

J. of William Dermody, Michael Izbicki, Paul F. Roy, S r . and

Robert Young, Doc. N o . 12-1, at 8.) In addition, the Town argues

that even if Foote’s status as a non-reappointed volunteer does

-5- not bar relief, he is not entitled to First Amendment protection

because the Town’s interest in providing efficient and effective

service outweighs Foote’s interest in commenting on issues of

town governance. (See Mem. of Law in Supp. of Town of Bedford’s

Initial Mot. for Summ. J., Doc. N o . 11-1, at 12-14.)

1. Volunteer Status and Non-Reappointment

As an initial matter, I assume, without deciding, that

neither Foote’s status as a volunteer nor the fact that his claim

is based upon non-reappointment rather than termination bars him

from receiving relief. Courts that have concluded that

volunteers are protected from termination or non-appointment have

analyzed volunteers’ claims using the same framework they use to

analyze the claims of public employees who make similar

allegations. See Hyland v . Wonder,

(9th

Cir. 1992); Morrison v . City of Reading, N o . 02-7788,

, at *5-7 (E.D. P a . 2007). Following this approach, I

analyze Foote’s claims using the accepted standard for evaluating

a public employee’s First Amendment retaliation claim.

2. Speech “as a Citizen” and “on a Matter of Public Concern”

When considering a First Amendment retaliation claim, a

court first must examine whether the plaintiff has spoken (a) “as

a citizen” and (b) “on a matter of public concern.” Curran v .

-6- Cousins,

6 , 45 (1st Cir. 2007) (citing Garcetti v .

Ceballos,

1 0 , 418 (2006)). I assume that Foote’s

speech fulfilled both sub-parts of this first requirement, and

move on to the second inquiry, which is dispositive here.

3. Adequate Justification for Dismissal

The second determination a court must make regarding a First

Amendment retaliation claim is “‘whether the relevant government

entity had an adequate justification for treating the employee

differently from any other member of the general public.’”

at 45 (quoting Garcetti,

(citing Pickering v . Bd.

of Educ.,

(1968))). 3 It is well established

that “‘[g]overnment employers . . . need a significant degree of

control over their employees’ words and actions; without i t ,

there would be little chance for the efficient provision of

public services.’”

at 47 (quoting Garcetti,

). “However, because a citizen who works for the government

is nonetheless a citizen, ‘so long as employees are speaking as

citizens about matters of public concern, they must face only

those speech restrictions that are necessary for their employers

to operate efficiently and effectively.’”

(quoting Garcetti,

3 Whether the government had an adequate justification for treating the plaintiff differently from a member of the general public is a question of law. Curran, 509 F.3d at 4 5 .

-7-

1 9 ) . In determining whether the government has an

adequate justification for its treatment of the plaintiff, courts

conduct what is often referred to as the “Pickering balancing

test” and balance “the employee’s interests ‘as a citizen, in

commenting upon matters of public concern[,]’ against ‘the

interest of the [s]tate as an employer, in promoting the

efficiency of the public services it performs through its

employees.’” Flynn v . City of Boston,

2 , 47 (1st Cir.

1998) (quoting Pickering,

6 8 ) ; see also Davignon v .

Hodgson,

1 , 103-104 (1st Cir. 2008).

Applying the Pickering balancing test to the facts of this

case, I conclude that defendants did not violate Foote’s First

Amendment rights in refusing to reappoint him to the Recreation

Commission. I reach this conclusion for several reasons. First,

it is significant that the speech at issue is targeted at the

operations of local government. While citizens have a strong

First Amendment interest in commenting on governmental

operations, the elected members of the Town Council also have

good reason to take account of a speaker’s views on local

governance issues when they are considering appointments to town

boards. Voters do not have a direct say in appointments and

accountability demands that a town’s elected representatives be

given significant latitude to consider a potential appointee’s

-8- views on local governance issues when acting on behalf of voters.

Conversely, the governmental interest in allowing elected

officials to base a reappointment decision on speech that is

unrelated to governmental operations is difficult to discern.

Thus, Foote’s claim would have far more bite if he had been

denied reappointment because of views he expressed on unrelated

issues. See Flynn,

(suggesting that First

Amendment retaliation claim would be stronger if employee were

fired “for expressing adherence to one church or another”).

Second, while Foote has a legitimate interest in commenting

as a citizen on town operations, he has not been denied

reappointment because he blew the whistle on concealed wrongdoing

by town officials. A different result might well be required in

such a case because the First Amendment interest in the speech at

issue would be correspondingly stronger. See

(suggesting

that First Amendment retaliation claim would be stronger if the

employee were fired “for reporting a crime of fraud”).

Finally, it is important to bear in mind that a Recreation

Commissioner is unlike a typical municipal employee because he

has significant policymaking responsibilities. The Town Charter

expressly requires Commissioners to make recommendations to the

Town Council concerning important matters of recreation policy

such as what properties to acquire, hold, or sell, and what rules

-9- and regulation should be adopted to govern the operation of the

Town’s recreation facilities. (Doc. N o . 13-1, § 1-11-1(c)(2)).

Because the position of Recreation Commissioner is a policymaking

position, the Town has a much stronger interest in considering

the speaker’s views on matters of town governance when making an

appointment to the Commission than it has when deciding to hire

an employee for a position with no policymaking responsibilities.

See id.

Given the nature of Foote’s speech and the position he was

seeking, Town officials had legitimate reason to take account of

that speech when considering Foote’s request for reappointment.

Foote’s critical comments about the School Board were of

particular concern to defendant Young who noted that “‘I heard a

lot of complaints about [Foote’s] interactions with the [S]chool

[B]oard and then I read in the newspaper [that] he is going to be

watching them[.] . . . ‘If we’re going to have that interaction

between [the Recreation Commission] and the [S]chool [B]oard,

that kind of attitude doesn’t work at all.’” (Pl. William

Foote’s Opp’n to Town of Bedford’s Initial Mot. for Summ. J. Ex.

2 , Doc. N o . 13-2, at 1.) Ensuring that harmony among individuals

who must continue to work together is not impaired by a

prospective appointee’s public statements is a legitimate

interest that the Town can consider when deciding whether to

-10- reappoint someone to a policymaking position. Rankin v .

McPherson,

7 8 , 388 (1987).

The Town Council also has a strong interest in appointing

people to the Recreation Commission whose views on recreation

matters are compatible with its own. This interest outweighs

Foote’s competing interest in reappointment in spite of his

dissenting views on such issues. As defendant Izbicki noted,

Foote’s divergent views on town matters were problematic: “‘I

think [Foote has] done a great job on parks and recreation. I

think he’s a great asset to the town[.]’ . . . ‘My concern was,

he wasn’t representing the [C]ouncil’s position on this park

[i.e., the Village Common].’” (Pl. William Foote’s Opp’n to Town

of Bedford’s Initial Mot. for Summ. J. Ex. 2 , Doc. N o . 13-2, at

2.) Given the Recreation Commission’s role in formulating town

policy, the Town Council was entitled to seek out new members for

the Commission whose views about town government are aligned with

its own. Accordingly, Foote’s non-reappointment did not violate

his First Amendment rights.

B. State-Law Claims

Where, as here, a district court has dismissed the claims

over which it had original jurisdiction, the court may exercise

its discretion to decline supplemental jurisdiction as to any

remaining state-law claims.

(c); Marrero-

-11- Gutierrez v . Molina,

, 7 (1st Cir. 2007).

IV. CONCLUSION

For all of the foregoing reasons, I grant both motions for

summary judgment (Doc. N o . 1 1 ; Doc. N o . 12) with respect to

Foote’s federal-law claim (Count I ) . 4 What remains of the case

shall be remanded to state court.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

August 1 3 , 2010

cc: Charles P. Bauer, Esq. Brian J. S . Cullen, Esq. Beth A . Deragon, Esq. Mark A . Stull, Esq.

4 I also deny Foote’s request for oral argument because the issues were well briefed and oral argument is unlikely to deepen the court’s understanding of the relevant issues.

-12-