2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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D ocke t N o . 03-1278

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 03-1278

DOMENIC J. CURI NGA,

Appellant

v.

CIT Y OF CLAI RTON; GE OR GE AD AM SO N, C ity Coun cil M em be r, in hi s in di vi du al c ap ac ity; TH OM AS M EA DE , City Co uncil M em be r, in hi s in di vi du al c ap ac ity; DO M EN IC V IRG ON A,C ity Coun cil M emb er, in his in dividu al cap acity

On Appeal from the United States District Court for the We stern D istrict of P enns ylvania D.C. CivilAction No. 00-cv- 00907 (Honorable Robert

J. Cindrich)

Argued July31, 2003

Be for e: S CIR ICA , Chief Judge , RE ND EL L a nd A M BR O, Circuit Judges

(Fil ed February4, 2004) SAMUEL J. CORDES, ESQUIRE (AR GUED) Ogg, Cordes, Murphy & Ignelzi 245 F ort Pitt Bouleva rd Pitt sburgh, Pennsyl vania 15222 Attorneyfor Appella nt

RONALD D. BARBER, ESQUIRE (AR GUED) Strass burger, McK enna, Gutni ck & Potter 322 Boulevard of the Allie s, Sui te 700 Pitt sburgh, Pennsyl vania 15222 Attorneyfor Appelle es

OPINI ON OF THE COURT

SC IRI CA , Chief Judge

.

At issue i s whe the r a city cou ncil lawf ully di smiss ed it s princ ipa l policymaking employe e who campaigned against win n ing counci lmanic candi dates in a primary

election. The Cityof Clairton firedits mu nicipa l man ager, D om inic Curinga, after

he campaigned agai nst an incu mben t city

council member who won re-el ecti on and against another s uccessful

coun cilma nic ca ndid ate. C uring a asse rts the city coun cil’s dec ision to te r mina te him vi olate d his Firs t Am endm ent righ t t o speak freel y on a matterof public concern. Sum mary judgment was gra nted for def end ant s. We wil l a ffi rm. 1

1 We exercise appe llate revie w over the entry of summary j ud gm ent under 28 U.S.C. § 1291. Our standar d of revie w is pl en ar y. Morton Int’ l, I nc. v. A.E. StaleyI.

In A ug ust 1997, Dominic Curinga

was appo inted m unicip al m anager of the City of C lairton, P enns ylv ania. Prior to this ap poi nt men t, Curin ga ha d s er ve d t wo te rms on the Clairto n C ity Coun cil and one term as it s mayor . The cit y counci l, whic h include d Mayor Dominic Serapigli a and four council members, vot ed 4-1 in favor of Curinga’s appointment as municipa l

mana ge r. Cu ringa a nd all c oun cil

mem bers were members of the Democrati c Pa rty. Curinga wa s respo nsible to the c ity

coun cil “for the administ rat ion of all municipalaffair s placedin the M anager’s cha rge .” Curinga descri bed his posi tion as “run[ning] th e d ay- to -d ay busines s operati ons of th e city.” In thi s capaci ty , he

oversaw all city dep artment s an d supervi sed and manag ed a ll cit y employees, includi ng the fi nance director, pub lic safety

director, publ ic w o rks director, fire c hief and pol ice chi ef. Curinga also im plem ente d c ity counc il decisi ons in vari ous depar t men ts with in the mun ic ip al it

y . H e had th e pow er to appo int, suspend, or remo ve all municipal employe es and admini str ative unit hea ds with the ad vice a nd co nsen t of the coun cil. Curinga recei ved a salary of $39, 000 per year. His e mp loymen t contra ct allow ed atwil l term inati on.
In 1 999 , while employe d as municipalma n ager, Curi nga ran for t he position of District J usti ce a s an “Action Tea m” De mo crat. Th e “A cti on Tea m” ticke t ran ag ainst t h e “reg ular” D emo cratic Party’s ticke t in the primary election. The “regular” party ’s endors ed ticke t include d City Counc il man incumbent George Ad amson and can didate D ominic V irg ona , who wa s cha llengin g incu mb ent C ity Councilwoman and “A cti on Team ” Democrat Ruth Past ore.
In his deposi tion, Curinga admitted speaking o ut d uring t

he primary

election campaign in favor of Pa store and against Adamson and Virgona. At one point in the primary ca mpaign , all Demo cra ti c candidat es were present at a round tabl e questi on and answer sess ion of a “Meet the Candidates” forum sponsored b y the Fir st AME Church of

Clairton. During t

he sessio n, a member of the audi ence questi oned Curinga about alle ged raci al discrimina ti on at the Sons of Columbus, an Ital ian ethnic heritag e org aniza tion to which Curinga an d other candidate s belonged. The audience member aske d, “How could y ou say you ar e going to be a fai r magistrate w hen you’re a m embe r o f

an organization, a club, that doe s not al low blacks adm ittance[?]” Curinga was upset that two other club members present at the f oru m, Virgona and Curinga ’s opponent for Distri ct Just

ice, Armand Martin, fail ed to co me to th e clu b’s d efe nse

. The incide nt prom pted C uring a to Mfg. Co
., 343 F.3d 66 9, 679 (3d Cir. 2003). A motion for su mm ary judgm ent is prop erly gran ted w hen th e reco rd rev eals

no genuine i ssue of material f act, and the movant is entitl ed to judgment as a matt er of la w. Id. at 680.write “An Open Letter to t he M emb ership of the Son s of C olum bus, C lairton:”

This forum was atte nded by

a majorit

y of Afri can-American citizens. During the questi on p eriodof the forum, the audi enc e bega n to quest ion Preside n t Curinga as to why AfricanAmerican people ar e not permi tted to join t he Sons of

Columbu s. You, the members of the Sons of Columbus should kn ow that Dome ni c Virgona and Armand M artin both stood back an d we re ashamed to admit that they are

mem bers of

our organi zati on. Why did theyjust

step back? Wh y didn’t theyhelp to e xpl ain that our organization is a n e th ni c s oc iet y, promoting our It alian herit age? Inste ad, t h ese two mem bers w ere aligne d with the pe ople sponsoring th e fo rum, in a n atte mpt to pres ent

a negati ve impress ion on [si c] the A frica n-American people i n atte ndance about our or ganization and our heri tage.
An appeal is m ade to all

mem bers of the Sons of Columbus in Clairton, to NOT remember thes e two members on Electi on D ay. The sam e w ay that they did not re me mbe r they were m embe rs of o uror gan iz at io n at

th e fo ru m.
It is up t o you, the membership, to vo te and sup port p eople that our

[sic] proud of thei r Ital ian he ritage a nd o f their associ ation with our or ganization. Elec t : Domeni c J

. Curinga—Distric t Justice ; Ruth Pas tore

— Co unc il; . . . . (e mpha sis in original). The letter was signed by “T he ‘A cti on Team ’ De mo crats .” Curinga admit s he wrote t he letter

. Following the letter’s distribu tio n t o the mem bershi p, the Sons of Columbus expell ed Vir gon a from the cl ub. Virgona late r stated that

this letter and the res ulti ng
ex pulsi on da mag ed hi s r el atio ns hi p wi t h Curinga: “I was highlyupset [about the letter]

. . . [because Curinga] was attacki ng
me and I wasn’t

running aga inst h im. But he h ad a purp ose f or attac king me th at if Ru th Pastore won, he was sure that hi s job still existed.” Virgona also expl ai ne d, “[t]his letter did it all. And then a fter tha t, I me an w e w ere ha ving argu men ts all through, ateve ryme eting of the Sons of Columbus.” During his c am paign for Dis tri ct Justi ce, Curinga t ook off eleven weeks from w or k w ith pa y, clai ming he deserved “co mp time” because of his prior atte ndance at eveni ng and we eken d city meetings. The city coun cil never approve d this use of “comp ti me.”
On M ay 18 , 1 999 , Curin ga los t to M artin in the D istrict Justi ce p rimary election. Adam son was re- elect ed and Pastore lost

her seat on the city cou ncil to Virgona. Thu s th e “regu lar” D emo cratic Party candidates p re v aile d over the “Action Team” Democrats and the ba lance of pow er in th e city counci l shi fted t o the“ r egul ar” Dem ocratic Part y

rep rese ntati ves

. In the s um me r of199 9, C ur inga and tw o other def

eated candi dates fi led an election chall enge in the Court of Common Pleas of

A lle gh en y C ou nt y. The court dism issed th e law suit, notin g it was “gro ssly insuffi cien t procedural ly and sub stan tivel y.” Pastore et al. v . Virgona e t al
., GD 99-8592 (C.P. Allegheny Cty., Ju l y 22, 199 9). Th e Pennsy lvani a Co mm onw ealth C ourt d ismis sed a subsequent

appeal be cause pe titioners fail ed to provide notice to defendants. Pastore et al. v. V irgo na e t al., 741 A.2d 256 (Pa . Com mw . Ct., Oct. 21, 1999 ).
On Janu ary 3, 200 0, the n ew city

c ounci l met a nd term inated th e employment

contrac ts of the munici p al manager and municipalsolicitor. Co uncil

mem bers Adam so n, Thomas Meade, and Virgona voted in fa vor o f Curing a’s termination, wh ile M ayor Se rapigli a and Councilman TerryLee Juli an voted aga inst.
Ac cord in g to counci l minut es, t he

new ly appointe d municipalsoli citor stated that the ci ty council firedCuringa because he vio late d the Home Rule Charter by campaigning on city

time and usi ng taxpay e r money to f

und his campai gn. Reasons for Curing a’s termin ation c ited in the cou nci l me mbers’ de positions i ncluded campaigning o n city

time; excessi ve absences during the cam paign ; the law suit alle ging election fraud; a conviction for drivi ng under the influe nce of alcohol ; the Sons of Columbus letter; and inte rpersona l problems. Taking the fa cts i n the li ght most fav or abl e t o Cu ring a, we assume he

was fired bec ause of his political speech, inclu din g th e So ns o f C olu mb us le tter. Curinga br ou ght s uit

underU.S. Co nst

. amend. I and 42 U.S. C. § 1983 against the City of Cla irt on and t he thr ee counci l me mb ers w ho v oted f or his te rmi na tion, claim ing the Clairto n C ity Co uncil had reta liated against him for

ex ercis ing his ri ght to free speec h i n writi ng the Sons of Columbus l ette r and for fili ng the el ecti on fraud la wsuit. In a Repo rt and Recommend ation, th e M agistrate Judge recommended summ ary judgmentf or all de fendants. The Distri ct Cou rt ad opted the R epor t a n d Recommend ation. Curinga ti mel y appealed.
II.

A.
This matter

fall s atthe intersection of two sepa rate Firs t A m endmen t doctrines: freedom of speech and freedom of ass ociation. Both are impl icat ed when

a high-l evel government employ ee speaks out again st h is p ublic e mployer during an election c am paig n. Wilbur v. Mahan , 3 F.3d 214, 215 (7th Cir. 1993) . The First Amendment protect s an e mp loy ee who speaks out on a matter of publi c con cern,
so long as the e mp loyee’s in t erests outweigh the governme nt’s inter est in effici ent operati ons. At the same ti me, pub lic offici als maybe able to termin ate a policymaking employe e on the bas is of political affil iati on and co ndu ct, reg ardless of freedom of associ ation right s. Wh ilethis case implicates b oth doctri nes, t he result here is the same, because the pub lic

em plo yer’s in teres t is es pec ially stro ng. Although t he re has been little dispa rity in appli cati on and outcome, t he various courts of appeals have divi ded over whether to employ an analysis based

on fr eedo m of speech or on fre edom of associ ation. In cases such as these, under both doctrin es, the o utcom e is likely to be the same. Nevertheless, we believ e that in most cases, where a confidential or policy making employe e engages i n speech or conductaga in st

hi s pu bl ic emp loy er, t he bette r analy tica l approac h is found under the fre edom of speech doctrine.

B.
Pub lic employees have a First Amendment right

to spe a k freel y on matters of p ubl ic co nce rn. See, e. g. , Perry

v. Sindermann , 408 U.S. 593, 597 (1972); Pickeri ng v. Board of E duc
., 391 U.S. 563, 571-72 (1968), (teacher’s sp e ech against school board is protected as a matter of pub lic concern ); Watters v . Cit y of Philadel phia, 55 F.3d 886, 891 (3d Cir. 1995) (“judic ial vigila nce is requ ired to

ensure that publ ic employ ers do no t us e their authori ty to si lence di scourse on matt ers of public concern simply because theyd isagr ee with the content of the employee’s spee ch.”). B ut there is protect ion only for speech i n matter s of pub lic con cern , Co nn ick v. Myers , 461 U.S. 138, 146 (1983) , and that whic h is not likely to dis rupt t

he effici ent operation of the wo rkp lace

. Pickeri ng , 391 U.S. at 568. At the sam e ti me, the government

has a n interest i n regulat ing the s peech of its employe es to p ro mote “effi ciencyand integrity in the di scharge of official duties, and [in maint aining ] prop er disc ipline in the public s ervice .” Co nni ck, 461 U.S. at 150-51. 2 These int erest s must be balanced against the em p loyee’s inte rest i n addressi ng matter s of publ ic concern and enabli ng the ele ctorate to ma ke in for med dec ision s. 39 1 U .S. at 572

. The Pickeri ng balancing test considers “wh ether the stateme nt impairs disci pline by supe rior s or harmonyamong co-workers, has a detrim ental im pac t on close wo rking relatio nsh ips for which personalloy alty

an d confiden ce are
necessary, or impedes the perf ormance of the spea ker’s duties or interferes with the

2 Justi ce Powell el aborate d: To this end, the Government, as an
em ployer, mu st hav e w id e discr etionand controlover the management of its personneland internal affa irs. This in c ludes t he prerogative to rem ov e employ ees whose conduct hinders e ffici ent operati on and t o do so w ith dispatch. Prolonged r etention of a disrupt ive or oth erw i s e
unsa tisfactory emp lo yee c a n adve rsely a f fect di scipl ine and

mo rale in t he work place, foster di sh ar m on y, and u ltimately im pair the effici ency of an office or age ncy. Ar net tv. K enn edy
, 416 U.S. 134, 168 (1974) (P owe ll, J., concu rring in part).regular

o per ation of th e en terp rise.” Ran kin v. McPherson , 483 U. S. 378, 388 ( 1987). The test

also t akes int o account the exten t of authori ty entai led in t he

em plo yee’s p ositio n. Id. at 39 0.

In a public employe e’s re tali ation cl aim fo r e ng ag in g i n p ro tec ted ac tiv ity, there are three fa c tors to c onsid er. First, the employe e must demonstr ate that t he speech involves a m atter of public co ncern and the employ ee’s i nt eres t in t he speech outweighs t he gov ernmen t employer’s counterva ili ng in teres t in prov idin g effici ent and effecti ve ser vic es to t he publ ic. Pro v. D ona tucc i, 81 F.3d 128 3 , 1288 (3d Cir. 1996 ). Next, the speech must have been a subst antia l or motivat ing factor in the a l le ged reta liatory acti on. Baldassare v. New Jersey , 250 F.3d 188, 19 4-95 (3d C ir. 2001 ); Gre en v. P hil a

. Hous. Auth. , 105 F.3d 882, 885 (3d Cir. 1997). Fina lly, the emp lo y er can show that it would have taken the adverse acti on
even if the employe e had not en gage d in protected conduc t. Pro , 81 F.3d at 1288. The second and third factor s are ques tions of fact, w hile the fi rst f

actor i s a question of la w. Id.
Mo re than twenty fi ve ye ars ago, the Sup reme Co urt set fo rth a se parate

an alys is for p olitically mo tivate d dischar ges of publi c employ ees. I n Elrod

v. Bu rns , 427 U .S. 347 (197 6), the Cou rt rest rict ed the d ismissa l of pu bli c employe es for partisan r easons t o protect the employe es’ fr eedom of political belie f and asso ciatio n. 4 27 U .S. at 357-58 (Brennan, J., plu rality op inio n). The C ourt also rest ricted the use o f patro nage to insure the ef ficien cy of the pub lic workplace, stating that “mere poli tica l associ ation is an i nadequate bas is for im puting disposition to ill-w illed con duc t.” Id. at 36 4-6 5.
At the same time, the Cour t i n Elrod allo wed dismis sals ba sed on po l iti cal affil iati on for “poli cymaki ng” posit i ons. Policym aking emp loyees w ith differe nt politic al affili ations o r orient ations could thwart the w ill o f the electo rate and block the implement ation of

new policies. Id. at 367. Those who were not “policymakers” were “not in a position to thwart t

he goal s of t he in-par

ty ” and

were pro tecte d. Id

. The Court refi ned the policymaker exce ptio n fou r years later in Bra nti v. Finkel , 445 U.S. 50 7 (1980 ), holding “t he ulti mate inqui ry is not whether the label ‘pol icy maker’ or ‘con fiden tial’ fits a parti cular pos iti on; rather the question is whether the hiri ng autho rity can demo nst rate tha t party affil iati on is an appropri ate re quirement for the effect

ive performance of

the pu blic office i nvolved. ” Id. at 51 8.
This court has considered f act ors that might l ead to an Elrod

excepti on. The determi ning test

in Ness v. Marsha ll w as whether a differ ence in party affil iati on
was “h ig hl y lik ely t o caus e an o fficial to be ineffective i n ca rryi ng out” his duties. 660 F.2d 5 17, 521 (3 d Cir. 198 1). In Bro wn v. Trench, we held a key factor was whether the employ ee has “meaningf ul inputinto de cisi onmaking concerni ng the nature and s cope of a m ajor tow nship pro gra m.” 787 F .2d 167, 16 8 (3d C ir.1986). 3 S ee also Zold v. Township of

Mantua, 935 F.2 d 63 3 (3 d C ir. 199 1) ( apply ing the Bra nti test to dete rmine wh ether p arty affiliatio n is an appr opriate requir ement for the effecti ve performance of the du ties of the pub lic office).
Elrod has b een tra diti onally

applie d to terminations base d on an e mployee’s differe nt political affil iati on. Members of the same party

are pres umed to sha r e
common interests and g oals, and p atronage appo intme nts usuall y come fr om the sa me party as the e lected offic ial. Ha ll v. Ford, 856 F.2 d 25 5, 26 3 (D .C. C ir. 1 988) . But iden tica l party aff iliatio n does no t

nece ssaril y ensure the subordi nate’s loy al adherence to the superior’s poli cies. Primary election fight s can be fa mo usly brutal, som etime s mo re so th an co ntests in the gene ral electi on, and a nimo sity between can did ates is like ly to res ult. See Robertson v. F iore , 62 F.3d 596, 600 ( 3d C ir. 199 5); Wilbur , 3 F.3d at 219. Recognizing this, othe r cou rts of a ppea ls have broadened the defini tion of “ political affili at ion” to include commonality of political pur pos e, p art isan act ivit y, and political sup por t. See Kaluczky v. City of White Pla ins, 57 F.3d 202, 208 ( 2d C ir

. 1995); Wi l liams v. City of River Rouge, 909 F.2d 151, 153 n. 4 (6th Cir . 19 90)

. These courts have upheld t ermina t ions under Elro d-Br anti of polic ymaking employe es who open ly suppo rte d camp aigns against

their curren t o r subs eque ntly elected em ployer. Kaluczky, 57 F.3d at 204 -05; Will iam s, 909 F.2d at 153-54.
So the Sup r eme Court has appa rently craft ed two methods of analy zing First A men dm ent c laim s depending on th e con stitutiona l rights impli cated – the rig ht o f fre e speech (addres sed b y the P ickering balan cing te st) and the ri ght of poli tica l affi liat ion (addres sed by Elro d/Br anti ). But, as noted, Pickeri ng and Elrod may ea sily overlap in situations involvi ng campaign speech a gainst one’s p ublic emp loyer.

C.
The Supreme Cour t has not y et directly con fr onted a si tuati on where a policymaker is t erminat ed both for political affi lia tion and s peech. The Distri ct Court here appliedthe Pickeri ng balanci ng test

to the Sons of Columbus letter and the election fraudlawsuit , ci ting O’ Hare Truck Servi ce, Inc . v. City o f Northlake, 518 U.S. 712, 718 -20 (199 6). 4

3 Brown listed sp ecific f acto rs in this determ inati o n, includi ng “whether the employe e parti cipat es in . . . di scussi ons or othermee ti ngs , w h et her the e mployee prepares bud gets or has authori ty to hire or fire employees, the sal ary of the employ ee,
an d the emp loyee’s powe r to control others and to speakin th e na me of p olicym ake rs.” 787 F.2d at 169. 4 The Court in O’Hare stated: Our ca s es call for a differ e nt, though related, inquiry whe re a gov ernm ent em ploy er takes adverse ac tion on acco unt of

an em pl oyee or service pro vider’s ri ght of fr ee sp ee ch . T he re , w eBu t the plainti ff in O’Hare was not a policymaking or co nfide ntial em plo y ee. See Ro se v . Step hen s, 291 F.3d 9 17, 921 (6th Cir. 20 0 2). N one thele ss, O’Ha re impli ed t hat Pickeri ng balanci ng should be used when te rminati on is moti vated by both a public e mployee ’s speec h and political affil iati on:
A reaso nable ness a nalysis will also

acco mm odate those many cases, perhaps includi ng the one before
us, where specific instances of the employee’s speech o r e x pressi on, wh ich require balanci ng in the Pickeri ng cont e xt, are intermixed wi th a polit ical affi liatio n requ ir em ent. In those cases, the ba l ancing Pickeri ng man dates w ill be inevi table

. 518 U.S. 712, 719-20 (1996). Not only the balanci ng, but the outc ome as well, may be inevita ble because the public em ployer’s interest may weigh so hea vily

that no ot

her outc ome is poss ible. 5 The s pee ch ma y apply the bal an cin g test from Pickeri ng

. . . Elrod and Bra nti involvedinst ances where the raw testof p oliti cal affil iati on sufficed to show a consti tuti onal viol ation, withoutthe ne cessity of a n in qui ry
more d etai led than asking whether the re quir ement was appropri ate for the em plo ymen t in q ues tion

. There is an advant age in so confini ng the inqui r y where polit

ical affil iati on alone is con ce rned, for on e’s belie fs and alle giances ought not to be s ubj ect t o probing or testing by the government. It i s true , on the otherha nd, as we st ated at the outset of our opi nio n, supra, at 714, that the inquiry is whether the affil iati on r e quirement is a
re a sona ble one, s o it is inev itable that som e cas e-by -case ad judica tio n will be re quired eve n wh ere political affiliatio n is th e test the governmenthas imp ose d. A reasonableness analysi s will also

acco mm odate those many cases, perhaps includi ng the one before
us, where s pe cifi c inst ances of the employee’s speech o r e x pressi on, which requ ir e balanci ng in the Pick erin g context , are i ntermixe d with a politica l a ffiliati o n
re quirem ent. In those cases, the balanci ng Pickeri ng mandates w ill be inevitable. This case-by-case process will al low the co urts to consider the neces sity of acc ording to the go vern men t the disc retio n it requ i res in the a dminist rati on and awarding of contra cts over the wh ole range of publ ic works and the delive ry of go vern men ta l

serv ices

. Id. at 719-20 (citation omitted).

5 Fo r this reas on, t he C ourt o f A ppea ls for th e Sixth Circuit recentl y hel d that “wh ere a confide nti al or pol icy making pub lic employe e is di scharged on the ba sis of spe ech related to his political or poli cy views, the Pi ckering ba lance favor s the governmentas a matt er of la w.” Rose, 291adve rsely a ffect the pu blic employer’s

ability to eff ective ly run its operati ons and

acco mplish its objectives. At the sa m e time, the spee ch may im pair the pub lic employer’s abi l ity

to impl ement poli cies through loyal su bor din ates

. Ha ll , 856 F.2d at 263.

In these s it uat ions, it maybe diffic ult to distinguis h where the effi cient functi oning of the gov e rnment workplac e ends and the employ ee’s l oyal ty and ability to implem ent the pub lic employer’s polici es beg ins. See McE voy v. Spence r , 124 F.3d 92, 99 (2d Cir . 1997) . In this
sense, Elrod

consider ations of

fidel ity may easily converge with the gover nm ent’s interestin man aging an effi cien t workplace under the Pickeri ng sp ec trum. See, e. g., Ki nsey v. Sal ado Indep. Sch. Dis t., 950 F.2d 988, 994 ( 5th Cir. 199 2 ) (e n banc ) (“[C ]ases in volv ing p ublic employe es who o ccu py pol ic y ma k er or confidential positions f al l muc h clos er to the employer’s end of the spe ctrum, w here the government’s interests mor e easily outweigh the em plo yee’s (as a private citizen).”); Ha ll, 856 F.2d at 2 63 (“Given the simil arity in the bases an d counterva ili ng interests recog nized in Pickeri ng and Elrod-Brant i, th e governmentinterest r ecogn i zed in the affi liation cases i s also relevant in the

em ploy ee s peec h cas es. ”). Th e government ’s interest i n appo intin g polit ica lly loyal employees t o policymaking positio ns co nver ges w ith its interest in runni ng an effici ent workplac e.

D.
To establ ish a Fi rst Amendment violat ion under Pickeri ng , Curingam ust dem onstra te that hi s speech i nvolved a matter of p ublic co ncern , and th at his interest in the s peech outweighs any poten tia l disrupt ion o f the wor k environment

an d decrease d effici ency of the office. Curinga openl y campai gn ed against the “Regular

Tea m” D emo crats by writi ng the Sons of Columbus l ette r and urging mem bers o f the o rgan iz at ion to vote for his ticke t and agai nst his op ponents. His speech and conduc t involveda matter

of public concern. 6 See Green, 105 F.3d at 885 -86 (“ A p ublic employee’s speech invol ves a mat te r of pub lic conc ern if it c an be ‘fair l y considered as r ela ting to any matter of political, socialor other con cer n to the community ’”) (cit ation s omitted). S ee also Bass v. R icha rds
, 308 F.3d 1081, 1088- 89 (10th Cir. 20 02) (h olding that spe ech regardi ng politi ca l electi ons involves a matter of pub lic concern ); Brady v. Fort Bend C oun ty, 145 F.3d 691 , 706- 07 (5 th Cir. 1998) (stating t

hat campaigni ng for a

F. 3d at 9 21. Whether or not thi s can be decided as a m att er of la w, the govern ment’s inte res t in t hese kinds of

cas es is l ikely d ispo sitive

. 6 The Dis tr ict Court found that Curing a’s letter add ressed only a matter of personalco nc ern. We disagr ee. The letter contai ned a mix ture of perso nal an d pu blic matters. For our purp oses, how ever, there

was suffici ent cont ent of pub lic concern to

warran t consideration u nder Pickeri ng.political candidat e relates t o a matter of pub lic conc ern); Gardetto v. M aso n, 100 F .3d 803, 812 (10t

h Cir. 1996) (“In th e spectr um of expressi on protected by t he F irstAmendment, we place great value upon po litical speech in t he elect oral pro ces s.”).
But Curinga cannot

establ ish that his interest i n speech o utweighed the govern ment’s inte re st in e ffic ienc y. See Baldassare, 250 F.3d at195 ; Swineford v. Sn yderCo unt y, 15 F.3d 1258, 12 80 (3 d Cir. 1994). Curinga’s campaign against the candidat es who w o n the el ecti on impaire d the reconstituted city counc il’s interest in efficient operations. The rec ord strong ly supp orts this c onclu sio n. As noted, Curing a occ upie d the mos t sensi tive, hi gh -le ve l p ol icy m akin g appointi ve position in the Ci ty of Clairton,

one that required c onfidentiali ty and a close working rel ation s hip w ith city

coun cil mem bers to effe ctively implement their polici es. Under t

his set of facts, the strong government interest outweighs t h e employee’s spe ech

. Pic ker ing , 391 U.S. at 581. 7 Nor can Curinga pr evail under Elro d-Br anti. The Distric t Cou rt held that political “aff iliation” w as a rea sona ble req ui rementfo r Cu r i ng a’ s p os i t i on

. We agr ee. The duties of the ci ty manager required the m anag eme nt of a ll city departments, hiring a nd f iring city employees, repres enting t he city at meetings, and implementing poli cies promulgate d by the city coun cil. No nonelective p osition in t

he Cityof Clairton

car ried gr eat e r pol i c y ma kin g
re sp on sib ilit y. Bec ause of C uringa’s cond uct, the “re gular” De mo cratic co uncil

mem bers ha d good reason t o doubt wh ethertheycould rel y on hi m to foll ow and implement t

heir pol icie s, or

whether he wou ld i nstead “obs truct[] th e implemen tati on of polic ies of t he new administ rati on, poli cies presumabl y
sa nctione d by the elect orate. ” Elr od, 4 2 7 U.S. at 36 7. For these rea sons, Cu ringa’s policy mak ing res pon sibilities ex emp t him from Elro d/Br anti protec tions g enera lly afforded to patronage dismissals.
Cu ri nga, theref ore, ca nno t preva il

un der either c onstitu ti onal doctrine

. Although in this case the ou tcom e w ill be the same, we beli eve the di spo si tive analysis should fa ll u nder the Pickeri ng balanci ng standar d. 8 7 As noted, defe ndants pr ovided several

reasons for terminating Curinga, includi ng Curing a’s pr io r DU I conviction; hi s job performance an d t rack re cord as C ity Ma nager; his exces sive abs ences duri ng the camp ai gn; th e So ns o f Co lum bus letter; his su it alle ging election fraud; and the desire of the city coun cil to retain a City Manager “more acceptabl e and

com patible with their poli cies, beli efs, desires, andai ms for the future of the City of Clairton.” The D is tri ct Court be lieve d the Sons of Columbus letter pr ovided the princi pal mo tiv ation b ehin d th e termination.

8 As noted, t

he othercour ts of ap peals have taken somewhat differe nt approac hesIII.
To s um mariz e, the C lairton C ity Co uncil d id no t unlaw fully term inate Curinga for s tumping for t he “Action Team” Democrats and agai nst the “reg ular ” D em ocr atic c and idate s. Although the result

is l ikely to be the to simil ar fact

situations . The Fift

h, Ten th and Eleventh Circuits have a ppli ed the Pickeri ng testwhen a polic ymaker s peaks again st his employ er duri ng an election campaign. See Kinsey , 950 F.2d at 994-96 (5th Cir. 1992) (upholdi ng the termination

un der Pickeri ng of a school di stri ct superi nt endentfo r v oc all y o pposing schoo l board mem bers); Ken t v. M artin , 252 F.3d 11 4 1, 1142-43 (10th Cir. 2001) (apply ing Pickeri ng to anal yze th e termi nation of a depu ty c ler k who unsuccessful ly ran against the co unty clerk); Stough v. Gallagher , 967 F.2d 1523, 1528- 29 (11 t h Cir. 199 2) (fin din g deputy sheriff’s de motion for support ing poli tica l opponent of s h eriff violat ed deputy sheriff’s First Am endm ent rights unde r Pickeri ng ). Th e First , Second, Sixth, an d Sev enth Circu its have upheld te rminati ons
or other di scipl inarymeasures t aken by the governm e nt under the Elrod/Brant i excepti on wh en an emp lo ye e speaks out against his employ er duri ng an el ecti on campaign. See Rosenberg v. City of Eve rett, 328 F.3d 12, 17-18 (1st Cir. 2003) (upholdi ng termination of televi sion station director by current ma yor u nd er Elrod because the direc tor al lowed the former mayor t o submit hi s can d idacy

v ideotape after th e station ’s estab lis he d deadli ne, creating a perc eived l ack of politic al s upport fo r the current m ayor); Regan v. B oog ertm an, 984 F.2d 577, 581- 82 (2d Cir

. 199 3) (hol ding that the dism is sal of a publi c employ ee for “parti san political re ason s” w as allow able

un der Elrod

wh en the emp loyee activ ely opposed her em pl oye r’s pa rty a n d endorsed cand idate s from an opposing party); Kaluczky , 57 F.3d at 204-05 (2d Cir. 19 95) (upholdi ng demotion of personnelofficer

under Elrod

for ac tively endorsi ng mayorwho was not re-elected); Williams, 909 F. 2d a t 153-54 (6 th Cir. 1990) (upholdi ng termination o f c ity attorney under Elrod for dis tri buting campaign literature tha t c riticiz ed a subseq uen tly elected mem ber o f city

counc il); Heideman v. Wirsi ng , 7 F.3d 659, 662 (7th C ir . 19 93) (uphol ding suspensi on and term ination und er Elrod of

a deputysheri ff

who acti velycampaigned against the subs e quently elected sheriff); Wilbur, 3 F.3d 214, 217- 18 (7th Cir. 1993) (upholdi ng under Elrod unpaid le ave for depu ty sheri ff who announced h i s candidacyfor offic e against the current sheriff). The Ninth Circui t all ows for disciplinary a c tion against policymak ers fo r any type of speech u nder Elrod , includi ng speech not relat ed to poli cy vi ews or a poli tica l agenda. Faz io v. City & Co unt y of S an F ran cisc o, 125 F.3d 1328, 1332 (9th C ir. 1997) (uphol ding t ermination under Elrod of as sista n t dist rict attorney who fil ed pap er s to run against dist

rict attorney i n upcoming election).same u nder Elrod and Pickeri ng , when

an em ployee’s spee ch is inte rmixe d w ith political affil iati on, the Pickeri ng balan cing s tanda rd is the better a nalysis to apply. Becaus e the City of Clairton’s interest in effic ient m anag eme nt stron gly outw eighs Cu ringa’ s interes ts, his political speech in t

his cas e is not protected un der Pickeri ng.

IV.
For th e reaso ns state d, w e w ill affirm the grant of

summary j udgment for defendants.