[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 13628

________________________ D.C. Docket No. 5:11

- cv - 00497

- MTT DOCTOR AWANNA LESLIE, BETTYE RICHA RDSON, Plaintiffs

- Appellees,

v ersus HANCOCK COUNTY BOARD OF EDUCATION, GWENDOLYN REEVES, in her individual and official capacity as Superintendent of Hancock County Schools, ANTHONY GILCHRIST , DENISE RANSOM, ANNIE INGRAM, AZZALEE WILLIAMS

- ASKEW, PAMELA LAWRENCE

- INGRAM, in their individual and official capacity as members of the Hancock Coun ty Board of Education, Defendants

- Appellants.

________________________ Appeal from the United S tates District Court for the Middle District of Georgia

________________________ (July 12, 2013) Case: 12-13628 Date Filed: 07/12/2013 Page: 1 of 252 Before PRYOR and JORDAN , Circuit Judges, and PRO , * District Judge

. PRYOR, Circuit Judge : Th is appeal requires us to decide whether we have jurisdiction over an appeal of a newly elected local school board and whether its individual members vio lated the clearly established right to free speech of the superintendent of education and her ass istant superintendent when the b oard terminated t he i r employment for public comments a bout local tax policy. While Awanna Leslie served as the Superintendent of the Ha ncock County School System and Bettye Richardson served as Assistant Superintendent, they came to believe that the Hancock County Tax Commission er collected taxes at a defici ent rate and failed to provide adequate revenue projections , and they publicly complained about the se
matters . In November 2010, a new Board of Education was elected, and the new Board terminated Leslie and demoted Richardson for t he i r comments about the Tax Commission er . Leslie and Richardson filed a complaint against the B oard and its members in both their official and individual capacities alleging that they had been removed in retaliati on for exercising their right to free speech under the First and F ourteenth Amendment s , U.S. Const. Amend s . I , XIV; 42 U.S.C. § 1983. The Board and its official s moved to dismiss for failure to state a claim and asserted the defense of qualified immun ity for the individual member s. The defendants argued

* Honora ble Philip M. Pro , United States District Judge for the District of Nevada , sitting by designation. Case: 12-13628 Date Filed: 07/12/2013 Page: 2 of 253 that the plaint iffs’ speech was not protected by the First Amendment beca use it was uttered as part of an employment duty, that the balance of interests outlin ed in Pickering v. Board of Education of Township High School District 205, Will County, Illinois , 391 U.S. 563, 88 S. Ct. 1731 (1968) , favor ed the B oard be cause the plaintiffs were policy making or confidential employee s , and that qualified immunity protect ed the individual members of the B oard because any right that Leslie and Richardson had was not clearly establi shed. The district court denied

t he motion to dismiss . The individual members of the Board appealed the denial of qualified immunity, and the Board and its officials appealed the denial of their motion to dismiss fo r failure to stat e a claim as inextricably intertwined with the appeal of the individual members . W e dismiss the appeal of the Board and its officials for lack of jurisdiction, and we reverse the denial of qualified immunity for the individual Board members becaus e it is not clear ly established that a policymaking or confidential employee who speaks about policy , as Leslie and Richardson did, can prevail under the balancing test of Pickering

. I. BACKGROUND Awanna Leslie and Bettye Richardson served as the Superintendent and Assi stant Superintendent of the Hancock County School District, respectively

. In early 2009 , Leslie and Richardson determin ed that the Hancock County Tax Commissioner had been collecting taxes at a deficient rate. Leslie and Richardson

Case: 12-13628 Date Filed: 07/12/2013 Page: 3 of 254 believed that this def i cient collection of tax es led to the und erfunding of the School District

. They also believed that the Tax Commissioner failed to provide adequate
pro jections of tax revenue, which they believed made it impossible for them to prepare a budget for the scho ol district

. Leslie and Richardson publicly comm ented about the failure of the Tax
C ommissioner to perform his duties. Leslie commented about deficient property tax collection at three meetings of the Board of Education and at hearings of the Hancock County Tax Commission . Her comments also appeared in the Atlanta Journal

- Constitution

. In November and December 2009, Leslie also visited the office of the Tax Commissioner to determine the reason for the deficient collection of taxes, and Richar dson, a memb er of Leslie’s leadership team, accompanied Leslie on those trips. In November 2010, voters elected new members to all but one of the seats on the Hancock County Board of Education. The new chair of the B oard , Gwendolyn Reeves, was the sister

- in

- law of the Tax C ommissio ner. In January 2011, the B oard fired Leslie. The B oard did not inform Leslie of the reason for her termination . Reeves then recommended the demotion of Richardson to Gifted Coordinator and then to a teaching position in an el ementary school. The B oard dem oted Richardson in April 2011. Leslie and Richardson both believe that the
B oard was sympathetic to the Tax C ommissioner and terminated or demoted them

Case: 12-13628 Date Filed: 07/12/2013 Page: 4 of 255 because of their publ ic criticism of him

. Leslie and Richardson filed a complaint against th e Board of Education and its members , in their individual and official capacities, for retaliation for the exercise of their right to freedom of speech under the First and Fourteenth Amendment s . See 42 U.S.C. § 1983. The Board and its members , both as officials and as individuals, filed a motion to dismiss

. Fed. R. Civ. P. 12(b)(6). The defendants argue d that Leslie and Richardson had failed to state a claim upon which relief could be granted because their speech was not protected by the First Amendment because it was uttered in the performance of an employment duty, that the bal ance of interests under Pickering favored the B oard because Leslie and Richardson were policymaking or confidential employees, and that the individual members of the B oard were e ntitled to qualified immunity. The district court denied the motion to dismiss. The members of the Board, as individual s, then appealed the denial of qualified immunity, and the Board and its officials appe aled the denial of their motion as inextricably intertwined. II. STANDARD OF REVIEW “We review questions of subject matter jurisdiction de novo .” Belleri v. United States , 712 F.3d 543, 547 (11th Cir. 2013) (quoting Yu nker v. Allianceone Receivables Mgm t., Inc. , 701 F.3d 369, 372 n.2 (11th Cir. 2012)). “ A motion to dismiss a complaint on qualified immun ity grounds will be granted if the

Case: 12-13628 Date Filed: 07/12/2013 Page: 5 of 256 ‘ complaint fails to allege the violation of a clearly established constitutional right.’” Griffin Indus., Inc. v. Irv in , 496 F.3d 1189, 1199 (11th Cir. 2007) (quoting St. George v. Pinellas Cnty. , 285 F.3d 1334, 1337 (11th Cir. 2002)). “Whether the complaint sets forth a violation is a question of law that we review de novo .” Id. “We are required to accept the fact s as set forth in the plaintiff’s complaint as true, and our consideration is limited to those facts contained in the pleadings and attached exhibits.” Id. III. DISCUSSION We divide our discussion of this appeal in tw o parts. First, we explain why

we lack jurisdiction over the appeal of the Board and its officials . Second, we explain why the individual members of the Board are entitled to qualified immunity.
A. We Have Jurisdiction Over the Appeal of the Denial of Qualified Immunity, but We Lack Juri sdiction Over the Appeal of the Board and Its Officials

.

. No party has challenged our jurisdiction in this appeal, but we are required to address our subject matter jurisdiction. Edwards v. Prime, Inc. , 602 F.3d 1276,
1287

– 89 (11th Cir. 2010 ). “As a ge neral rule, an app eal may be taken . . . only where the district court has disposed of all claims against all parties.” Hudson v. Hall , 231 F.3d 1289, 1293 (11th Cir. 2000). “[A ] public official [sued in her individua l capacity] may file an interlocutory appeal of the denial of qualified immunity where the disputed issue is

Case: 12-13628 Date Filed: 07/12/2013 Page: 6 of 257 whether the official’ s conduct violated clearly established law.” Stanley v. City of Dalton, Ga. , 219 F.3d 1280, 1286 (11th Cir. 2000). The individual membe rs appeal the denial of qualified immunity, and we have jurisdiction to review their appeal because “the disputed issue is whether the official[s’] conduct violated clearly established law.” Id. The Board and its officials have also appealed as inextric ably intertwined the denial of the ir motion to dismiss for failure to stat e a claim , but we lack jurisdictio n to consider the ir appeal

. “Under the pendent appellate jurisdiction doctrine, we may address [otherwise] nonappealable orders if they are ‘inextr icably intertwined’ with an appealable decision or if ‘ review of the former decision [is] necessary to ensure meaningful review of the latter.’” Hudson , 231 F.3d at 1294 (internal quotation marks omitted). W e have held that we may exercise “pendent juris diction over a party not involved in the main appeal” when “the issues of the nonappealable decision ” meet the requirements for our exercise of pendent jurisdiction, King v. Cessna Aircraft Co. , 562 F.3d 1374, 1379 n.1 ( 11th Cir. 2009). B ut “ we [ have ] int erpreted” the decision of the Supreme Court in Swint v. Chambers County Commission , 514 U.S. 35, 115 S. Ct. 1203 (1995), “to bar pendent party jurisdiction” in “an official immunity app eal in which there was an appeal by another party who could not assert official immunity,” King , 562 F.3d at 1379 n.1; s ee also Hudson , 231 F.3d at 1292 n.1 (“[T]he district court’s grant of

Case: 12-13628 Date Filed: 07/12/2013 Page: 7 of 258 summary judgment to the county and the official capacity defendants does not fall within our pendent appellate jurisdiction .” ); Harris v. Bd. of Educ. of the City of Atlanta , 105 F.3d 591, 595 (11th Cir. 1997) (“In more recent decisions, the court has [] concluded that we have no pendent party appellate jurisdiction.” (internal quotation marks omitted)) ; Pickens v. Hollowell , 59 F.3d 120 3, 1208 (11th Cir. 1995) (“Deputies Wilson and Hollowell request that we review the district court’s denial of Rockdal e County’s motion for summary judgment, but we are foreclosed from doing so by [ Swint ], which held that we have no pendent party appellate jurisdiction.” ). And we have held that “we lack jurisdiction to review the Board’s appeal on any issue,” when a local school board tried to piggy

- back on an appeal of the denial of qualified immunity by the individual members of that board. Harris , 105 F.3d at 595. B. The Individual Board Members Are Entitled to Qualified Immunity. “Qualified immunity offers complete protection for individual public officials performing discretionary functions insofar as their conduct does not violate clearly establishe d statutory or constitutional rights of which a reasonable person would have known.” Loftus v. Clark

- Moore , 690 F.3d 1200, 1204 (11th Cir. 2012) (quoting Sherrod v. Johnson , 667 F.3d 1359, 1363 (11th Cir. 2012) (internal quotation marks omitted))

. “[T]o obtain qualified immunity, an official must first establish that he acted within his discretionary authority.” Morton v.

Case: 12-13628 Date Filed: 07/12/2013 Page: 8 of 259 Kirkwood , 707 F.3d 1276, 1280 (11th Cir. 2013). Because it is undisputed that the individual board members acted within their discretionary authority, Leslie and Richardson bear the burden to “establish that the [individual board members] violated [their] constitutional rights[] and . . . that the rig ht involved was ‘clearly established’ at the time of the putative mis conduct .” Terrell v. Smith , 668 F.3d 1244, 1250 (11th Cir. 2012)

. “We are ‘permitted to exercise [our] sound discretion in deciding which of the two prongs of the qualified immunity ana lysis should be addressed first in light of the circumstances in the particular case at hand.’” Loftus , 690 F.3d at 1204 (quoting Pearson v. Callahan , 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009) )

. The inquiry whether a constitutional violation is clearl y established “ is ‘undertaken in light of the specific context o f the case, not as a broad general proposition.’” Terrell , 668 F.3d at 1250 (quoting Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002) )

. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable [state official] that his conduct was unlawful in the situation he confronted.” Loftus , 690 F.3d at 1204 (quoting Vinyard v. Wilson , 311 F.3d 1340, 1350 (11th Cir. 2002)). “To answer this question, we look to law as decided by the Supreme Court, the Eleventh Circuit, or the Supreme Court of [Georgia].” See i d. (quoting Barnes v. Zaccari , 669 F.3d 1295, 1307 (11th Cir. 2012)). “[T]he salient question . . . is

Case: 12-13628 Date Filed: 07/12/2013 Page: 9 of 2510 whether the state of the law . . . gave [the individual board members] fair warning that their alleged treatment of [Leslie and Richardson] was unconstitutional.” Vinyard , 311 F.3d at 1350 (quoting Hope v. Pelzer , 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002)). Leslie and Richardson “must ‘demonstrate that the cont ours of the right were clearly established in [one of three] ways. ’ ” Loftus , 690 F.3d at 1204 (quoting Terrell , 668 F.3d at 1255). First, if judicial precedents in an area are tied to particular facts , Leslie and Richardson must “show that a materially similar case has already been decided.” Id. (quoting Terrell , 668 F.3d at 1255). Second, if judicial precedents are not tied to particular facts, Leslie and Richardson may “point to a broader, cl early established principle [tha t] should control the novel facts [of the] situation.” Id. (quoting Terrell , 668 F.3d at 1255). To succeed under this approach , “t he principle must be established with obvious clarity by the case law so that every objectively re asonable government official facing the circumstances would know that the official’s conduct did violate federal law when the official acted.” Id. at 1205 (quoting Terrell , 668 F.3d at 1256) (alteration omitted) . Third, in a narrow category of matters, “ the conduct involved in the case may so obviously violate [] th[e] constitution that prior case law is unnecessary.” Id. (quoting Terrell , 668 F.3d at 1255).

Case: 12-13628 Date Filed: 07/12/2013 Page: 10 of 2511 We divi de our discussion of qualified immunity in three parts. First, we discuss whether the la w was clearly established that a public employer can be held liable for retaliation against a policymaking or confidential employee for speech related to policy or politics. Second, we discuss whether Leslie and Richardson

were policymaking or confidentia l employee s . Third, we discuss whether Leslie and Richardson ’s speech concerned policy or politics.
1. The Law Is Not Clearly Established that a Government Employer Can Be Held Liable for Retaliation Against a Policymaking or Confidential Employee for Speech About Policy. “The law is well established that a state employee may not be discharged for speech protected under the First Amendment,” Vila v. Padr on , 484 F.3d 1334, 1339 (11th Cir. 2007), but “a public employee’s right to freedom of speech is not absolute,” id. “To set forth a claim of retaliation, a public employee must show: (1) she was speaking as a citizen on a matter of public concern; (2) her interests as a citizen outweighed the interests of the State as an employer; and (3) the speech played a substanti al or motivating role in the adverse employment action.” Id. “If the plaintiff establishes these elements, the burden shifts to the defendant to prove it would have made the same adverse employment decision ab sent the employee’s speech .” Id. To deter mine whether an employee’s interest as a citizen outweighed the interests of the state as an employer, we apply the balancing test defin ed by the

Case: 12-13628 Date Filed: 07/12/2013 Page: 11 of 2512 Supreme Court in Pickering

. This test seeks “to arrive at a balance between the interests of the [public empl oyee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of public services it performs through it s employees.” Pickering , 391
U.S. at 568, 88 S. Ct. at 17 34

– 35. The Supr eme Court has instructed that “the manner, time, and place of the employee’s expression” and “the context in which the dispute arose” are relevant to the Pickering balance. Rankin v. McPherson , 483 U.S. 378, 388, 107 S. Ct. 2891, 2899 (1987). The Court h as also “recognized as pertinent consideration s whether the statement impairs discipline by superiors or harmony among co

- workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes

t he performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Id.
T he Supreme Court has developed a different , but related, ap proach to resolve complaints of retaliation in violation of the First Amendment based on political affiliation or belief in Elrod v. Burns , 427 U.S. 347, 96 S. Ct. 2673 (1976), and Branti v. Finkel , 445 U.S. 507, 100 S. Ct. 1287 (1980). See O’Hare Truck Serv., Inc. v. City of Northlake , 518 U.S. 712, 719, 116 S. Ct. 2353, 2357

– 58 (1996); Brett v. Jefferson Cnty., Ga. , 123 F.3d 1429, 1432

– 33 (11th Cir. 1997)

. In Elrod , the Court held that a “nonpolicymaking, nonconfidential government

Case: 12-13628 Date Filed: 07/12/2013 Page: 12 of 2513 employee” cannot “be discharged or threatened with discharge from a job that he is satisfactorily performi ng upon the sole ground of his political belief s .” 427 U.S. at
375 , 96 S. Ct. at 2691 (Stewart, J. , joined by Blackmun, J., concurring). The Supreme Court later clarified , in Branti , that “the ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that [political] affiliation is an appropriate requirement for the effective performance of the public office involved.” 445 U.S. at 518 , 100 S . Ct. at 1295

. But the Court has continued to consider whether an employee holds a policym aking or confidential position to determine whether the employee may be dismissed or demoted because of his political beliefs. Id. at 519

– 20, 100 S. Ct. at 1295. E mployees who serve in these positions can be terminated on the basis of political affiliation or belief because the government has “a compelling interest in infringing [their] First Amendment rights.” Rutan v. Repub. Party of Ill. , 497 U.S. 62, 71 n.5, 11 0 S. Ct. 2729, 2735 n.5 (1990)

. The individual board members argue that it is not clearly established that the Pickering balance does not favor the government employer as a matter of law when a policymaking employee speaks about policy, and we agree. Neither the Supreme Court, this Court , nor the Supreme Court of Georgia has answered the question whether the Pickering balance of interests favors the government employer when

Case: 12-13628 Date Filed: 07/12/2013 Page: 13 of 2514 an employee who serves in a policymakin g or confidential role can be dismissed based on political affiliation or belief.
T he Supr eme Court has not addressed the effect on the Pickering balance of determining that an employee holds a policymaking or confidenti al position under Elrod and Branti

. The Supreme C ourt has explained, in d icta , only that these inquiries are “different, though related,” and that , “ where specific in stances of the employee’s speech or expression . . . are intermixed with a political affiliation requirement [,] . . . the balancing Pickering mandates will be inev itable.” O’Hare Truck Serv. , 518 U.S. at 719, 116 S. Ct. at 2357

– 58

. Although w e have addressed whether the Pickering balance or the Elrod/Branti analysi s applies in several decisions , s ee , e.g. , McKinley v. Kaplan , 262 F.3d 1146, 1149 n.4 (11th Cir. 2001); Brett , 123 F.3 d at 1432

– 33 ; Morris v.
Crow , 117 F.3d 449, 455

– 56 (11th Cir. 1997); McCabe v. Sharrett , 12 F.3d 1558, 1561

– 1570 (11th Cir. 1994); Stough v. Gallagher , 967 F.2d 1523, 1526

– 28 (11th Cir. 1 992), we have not decided the ef fect on the Pickering balance when an employee is a policy making or confidential employee, s ee McKinley , 262 F.3d at 1149 n.4 (applying Pickering in a n appeal based primarily on the exercise of an employee’s right to free speech ); Brett , 123 F.3d at 1433 ( remanding for the district court to decide which test to apply); Morris , 117 F.3d at 449, 457

– 58 ( expressing doubts about the merits of a political patronage theory before

Case: 12-13628 Date Filed: 07/12/2013 Page: 14 of 2515 determining that the Pickering balance favored the employer); McCabe , 12 F.3d at 156 9

– 74 (con cluding that a claim based on a right to intimate association failed under either the Pickering balance or the Elrod/Branti analysis); Stough , 967 F.2d at 1526

– 29 (applying the Pickering balan ce to an employee ’s speech an d concluding that the employer was not ent itled to qualified immunity because the employer had “decide d that the [employee’s position was ] not so closely identified with the [employer] that personal loyalty is required, and that a political dispute between the [employer] and a [person in the employee’s position] may not necessarily di srupt normal working conditions ”). “ W e have held that the Elrod

Branti line of cases applies wh en a public employee suffers an adverse employment action based on party affiliation or political bel iefs rather than the content of the employee’s speech or expressions,” but that “[t]he Pickering analysis . . . applie s when a public employee suffers an adverse employment action based on the employee’s expressive conduct or speech.” McKinley , 262 F.3d a t 11 49 n.4. B ut we have not decid ed the ir interrelationship when an employer retaliates against a policymaking or confidential employee for speech about policy

. N o party has cited any decision of the Supreme Court of Georgia that addresses whether a poli cymaking or confidential employer has a right not to be retaliated against for speech about policy , and we have not found any decision of the Supreme Court of Georgia on this issue

. The only decision of the Suprem e

Case: 12-13628 Date Filed: 07/12/2013 Page: 15 of 2516 Court of Georgia that cites both Pickeri ng and Elrod does not d iscuss the relationship between those decisions

. Galer v. Bd. of Regents of the Univ. Sys. , 236 S.E. 2d 617, 619 ( Ga. 1977). In the absence of precedent of the Supreme Court, this Court, or the Supreme Court of Georgia that holds that a policymaking or confidential employee has a right not to be dismissed for speech about policy, Leslie and Richardson cannot “show that a materia lly similar case has already been decided.” Loftus , 690 F.3d at 1204 (quoting Terrell , 668 F.3d at 1255). And Leslie and Ric hardson must either “point to a broader, clearly established principle [that] should control the novel facts [of the] situation” o r prove that “the conduct involved in the case [] so obviously violate[s] [] th[e] constitution that prior case law is unnecessary.” Id. at 1204

– 05 (quoting Te r rell , 668 F.3d at 1255). Leslie and Richardson argue that the decision of the Supreme Court in Pickering clearly established that they had a right not to be retaliated against f or their speech, but other courts are divided about this issue

. T he circuit courts that have addressed whether a polic ymaking or confidential employee may prevail under th e Pickering balance have taken three different approaches. The first approach, taken by the First, Sixth, and Seventh Circuits, “hold[s] that where an employee is in a policymaking or confidential position and is terminated for speech related to political or policy views, the

Case: 12-13628 Date Filed: 07/12/2013 Page: 16 of 2517 Pickering balance favors the government as a matter of law.” See Rose v. Stephens , 291 F.3d 917, 922 (6th Cir. 2002) ; see also Foote v. Town of Bedford , 6 42 F.3d 80, 84 (1st Cir. 2011); Bonds v. Milwaukee Cnty. , 207 F.3d 969, 978 (7th Cir. 200) (“[W]e held that the rationale for the policymaking employee exception also covered [expression of] viewpoints relating to the policymaking employee’s duties.”). These courts observe that “disagreement between the employer and the policyma king 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.” Bonds , 207 F.3d at 978. And because disagreement can underm ine the goals of the employer, the employer’s interest in effective governance outweighs the employee’s interest in speaking when an employee in a policymaking position expresses political or policy views.
See Foote , 643 F.3d at 84. These courts also “re cognize[] the inherent inconsistency in a rule that protects a policymaking employee who overtly expresses his disloyalty while denying that same protection to one who merely belongs to a different political party.” Rose , 291 F.3d at 922. But these court s limit the application of this rule to situations where the speech is about political or policy views because the interest of the employer in having loyal political servants does not apply outside that context. Id. The second approach, taken by the Nint h Circuit, first inquires whether the emp loyee serves in a position in which political

Case: 12-13628 Date Filed: 07/12/2013 Page: 17 of 2518 affiliation or patronage is a proper consideration and then treats that inquiry as “dispositive of any First Amendment retaliation claim.” Biggs v. Best, Best & Krieger , 189 F.3d 989, 994

– 95 (9th Cir. 1999). If the court concludes that the employee is a policymaker or confidential employee, the employer pre vails without applying the Pickering balance. See Fazio v. City & Cnty. of San Francisco , 125 F.3d 1328, 1332 (9th Cir. 1997). T he third approach, taken by the Second and Eighth Circuits, limits the application of the decisions of the Supreme Court that address political affiliation. Hinshaw v. Smith , 436 F.3d 997, 1005

– 07 (8th Cir. 2006); Lewis v. Cowen , 165 F.3d 1 54, 162

– 63 (2d Cir 1999). These courts observe that the Supreme Court “has never stated that the discharged employee’s position in the employment hierarchy would automatically tilt the Pickering balance in the employer’s favor.” McEvoy v. Spencer , 124 F. 3d 92, 103 (2d Cir. 1997); see also Hinshaw , 436 F.3d at 1006 (“We hesitate to expand the Elrod

- Branti exception to a case where a party affiliation is not alleged as a basis for the termination.”). But these courts “recognize the necessarily adverse effe ct an employee’s speech on a matter related to the employee’s policymaking or confidential duties would have on the factors enumerated in the Pickering balancing test,” because the employers have a heightened interest in employee loyalty and the impression of public loyalty when political affiliation is a permissible consideration. Hinshaw , 436 F.3d at 1006

– 08.

Case: 12-13628 Date Filed: 07/12/2013 Page: 18 of 2519 No clearly established law bars the termination of a policymaking or confidential employee for speaking about policy

. The correct application of the Pickering balance to a policymaking or confidential employee who speaks about policy is not “ established with [ such] ob vious clarity by the case law [] that every objectively reasonable government official facing the circumst ances would know that the official’s conduct did violate fede ral law when the official acted. ” Loftus , 690 F.3d at 1205 (quoting Terrell , 668 F .3d at 1256). T he members of the Board are entitled to qualified immunity in their individual capacities if Les lie and Richardson were policymaking e mployee s who spoke about policy.

2 . A Local Sc hool Superintendent in Georgia I s a Policymaking or Confidential Employee.
A local school superintendent under Georgia law is a policymaking or confidential employee for the purpose of the Elrod/Branti inquiry

. Ordinarily the determination that an employee is a policymaking or confidential employee is a question of fact. See Underwood v. Harkins , 698 F.3d 1335, 1342 (11th Cir. 2012). But we have applied a categorical approach based on the statutory authority of a n emplo yee when the employee is empowered by the relevant state or local law to act as the alter ego of her employer

. At oral argument, counsel for Leslie and Richardson conceded that Ri chardson’s complaint ri se s or fa ll s with Leslie’s complaint because Richardson served as Assistant Superintendent and as part of Leslie’s leadership team and her speech was in concert with Leslie’s speech.

Case: 12-13628 Date Filed: 07/12/2013 Page: 19 of 2520 Our predecessor court first concluded that an employee was a policymaker or confidential employee based only on the legal definit ion of that employee’s duties. Stegmaier v. Trammell , 597 F.2d 1027 , 1040 (5th Cir. 1979). In Stegmaier , a circuit court clerk in Alabama tried to dismiss the deputy clerk because the deputy clerk had not supported the election of the circuit court clerk. Id. at 1030

– 32. The former Fifth Circuit hel d that the deputy clerk was a confidential employee without inquiring beyond the statutory authority of the deputy clerk : W hen, by statute, a deputy clerk is empowered to conduct all business which the clerk is authorized to conduct, and when, by statute, the clerk is subject to civil liability and fines for failure to perform his statutory duties, the Circuit Clerk must be afforded the opportunity to select his single deputy clerk; he must be able to select a deputy in whom he has total trust and confidence and from whom he can expect, witho ut question, undivided loyalty. Id. at 1040 ( citations omitt ed). We reached a similar conclusion in Terry v. Cook , 866 F.2d 373 (11th Cir. 1989), where a county sheriff in Alabama tried to replace all of the em ployees of his office who ha d opposed his election, i d. at 374 . We held that the sheriff could dismiss the deputy sheriffs. Id. at 377. We d id not rely on the actual du ties of the deputy sheriffs to reach our conclusion in Terry . Instead, we rule d , “U nder Alabama law, a deputy sheriff is the general agent of and empowered to enter into business transactions for the sheriff. Any transaction within the scope of the

Case: 12-13628 Date Filed: 07/12/2013 Page: 20 of 2521 sheriff’s power may be acted on by his deputy. ” Id. We also conclud ed that “[t]he deputy sheriff is the alter ego of the sheriff, and the sheriff is civilly liable for actions committed by a deputy done in the performance of his duty.” Id. (citation omitted). Based on these factors , we concluded that “[t]he closeness and cooperation required between sheriffs and their deputies necessitates the sh eriff’s absolute authority over their appointment and/or retention.” Id. We recently acknowledged that we apply a categorical approach based on state law to determine whether an employee is a confide ntial employee or policymaker. Underwood v. Harkins , 69 8 F.3d 1335 , 1343

– 44 (11th Cir. 2012).
In Underwood , a newly

- elected superior court clerk fired a deputy clerk who had run against her in a primary election. Id. at 1337

– 38. After a review of Terry and Stegmaier , we held that “an elected official may di smiss an immediate subordinate for opposing her in an election without violating the First Amendment if the subordinate, under state or local law, has the same duties and powers as the elected official.” Id. at 1343. We treated the deputy clerk as a poli cymaking or confidential employee because “a person holding that position is essentially the legal alter ego of the clerk.” Id. We acknowledged that the authority of the deputy clerk “did not extend to the outer limits authorized by Georgia law,” but we held that the deputy clerk’s authority under state law controlled our analysis : W hat matters in a case like this one is not what the subordinate actually does on a day

- to

- day basis, but rather what the subordinate is Case: 12-13628 Date Filed: 07/12/2013 Page: 21 of 2522 legally empowered to do under state or local law. In other words, we look at the position in the abstract and at what state or local law allows a person in that position to do, and not at a snapshot of the position as it is being carried out by a given person at a given point in time under a given elected official

. Id. at 1344 . We also stated that the categorical approach made sense because “[t]he fact that an elected official has not given a particular immediate subordinate all of the discretionary or policymaking authority available under state or local law does not prevent that official (or a future one) from changing her mind, or from choosing to expand a subordinate’s duties if she is able to hire the subordinate of her choice.” Id. The key factor in our deci sions that apply a ca t egorical approach is that the employee was empowered by law to act as the alter ego of her employer. Although these decisions have been limited to “the confines of the case before us,” id. at 1343 , the rational e of these decisions ap plies wi th even more force when an official serves as the alter ego who executes the policies of a legis lative body because the official not only “may act” upon matters within the authority of her superior, Terry , 866 F.2d 3 77, but must act for the policie s adopted by the superior to have any effect. As the superintendent of a local school district, Leslie served in a policymaking or confidential r ole under our categorical approach to the Elrod/Branti inqu iry because she was the executive officer on whom th e Board

Case: 12-13628 Date Filed: 07/12/2013 Page: 22 of 2523 relied for the enforcement of its policies. Georgia law mak es a local school

s uperintendent the alter ego of the local school board. Georgia law provides that the superintendent “shall be the execu tive officer of the local board of education ” and “shall be the agent of the local board in procuring such school equipment and materials as it may order.” Ga. Code § 20

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- 109. The Supreme Court of Georgia has described the superintendent as the “chief fiscal of ficer of the board of

e ducation. ” Hicks v. Arnall , 368 S.E.2d 733, 735 ( Ga. 1988). And Georgia law provid es that “[i]t shall be the local school superintendent’s duty to enforce all regulations and rules . . . of the local board according to the laws of the state and the rules and regulations m ade by the local board that are not in conflict with state laws.” Ga. Code § 20

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- 109

. The superintendent is an a lter ego of the B oard , which must rely on her not only to enter transactions on behalf of the B oard , but also to enforce its policies. Although Georgia law provides that a local school superintendent may not bind the local school board when she signs a contract unless the school board permitted the super intendent to enter the contract, s ee Knight v. Troup Cnty

. Bd. of Ed uc . , 242 S.E.2d 26 3, 264 (Ga. App. 1978) , the ability of the B oard to limi t the authority of a superintendent does not undermine th e conclusion that a superintendent is a policymaking or confidential employee.
W e have explained that “we look at the position in the abstract and at what state or local law allows a person in that position to do, and not a snapshot of the position

Case: 12-13628 Date Filed: 07/12/2013 Page: 23 of 2524 as it is being carried out by a given person at a given point in time under a given elected official ” to determine whether an employee is the legal a lter ego of her employer. See Underwood , 698 F.3d at 1344

. “This categorical approach . . . makes practical sense ” because “[t]he fact that an elected [board] has not given a particular immediate subordinate all of the discretionary or policymaking autho rity available under state or local law does not prevent that [board] (or a future one) from changing [its] mind, or from choosing to expand a subordinate’s duties if [it] is able to hire the subordinate of [its] choice. ” Id. 3. Leslie and Richardson Spo ke About Policy. The facts alleged in Leslie’s complaint make clear that her speech about policy led to her termination

. The complaint all eges that Leslie complained at public meetings of the School Board, at publ ic hearings of the Tax Commission, and in an article in the Atlanta

- Journal Constitution about the failure of the Tax
C ommissioner to collect property taxes at the correct rate and provide accurate revenue projections to Leslie

. The complaint also alleges that the deficien t tax collection “result[ed] in the under

- funding of the Hancock County School System” and “made it impossible for the Plaintiffs to adequately perform their duties as administrators in the Hancock County School System.” An d the complaint alleges that, be cause of the failure of the Tax C ommissioner to provide accurate revenue projections meant that Leslie and Richardson were “ routinely unable to prepare a

Case: 12-13628 Date Filed: 07/12/2013 Page: 24 of 2525 budget for the Hancock County School System

. ” Ga. Comp. R. & Regs. § 160

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- .21. The administration of local taxes and the effect of that administration on the local school district are quintessentia l policy matters. Leslie has described her speech as being about policy. In her response to the motion to dismiss, Leslie argued that her “st atements actually enhanced [her] daily functioning by putting pressure on the Tax Commissioner to properly fund Hancock County Schools” and that , “[w]ith a proper rate of tax collected, the School District would be able to operate more effectively.” Leslie’s complaint against the individual members of the board is barred by qualified immunity, and b e cause Richardson conced es that her complaint ri se s or fa ll s with Leslie’s complaint , Richardson’s complaint is barred too. We reverse the denial of qualified immu nity for the individual members of the Board. IV. CONCLUSION
We DISMISS the appeal of the Board and its officials for lack of jurisdiction and REVERSE the denial of qualified immunity for the individual members of the Board

.

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