2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-6-2015

Harold Werkheiser v. Pocono Township

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This March is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Harold Werkheiser v. Pocono Township" (2015). 2015 Decisions. Paper 234.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/234
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 13-3646

_______________

HAROLD WERKHEISER, individually and in his official

capacity as a supervisor for the Township of Pocono

v.

POCONO TOWNSHIP; FRANK HESS, Supervisor;

HENRY BENGEL, Supervisor

Frank Hess; Henry Bengel,

Appellants

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-13-cv-01001)

District Judge: Hon. A. Richard Caputo

____________

Argued December 8, 2014
2

BEFORE: VANASKIE, GREENBERG, AND COWEN, 

Circuit Judges

(Opinion Filed: March 6, 2015)

_______________

OPINION

_______________

Edward J. Easterly, Esq.

Steven E. Hoffman, Esq. (Argued)

Norris, McLaughlin & Marcus

1611 Pond Road

The Paragon Centre, Suite 300

Allentown, PA 18104

Counsel for Appellants

Michael S. Fettner, Esq.

Cletus P. Lyman, Esq. (Argued)

Michael T. Sweeney, Esq.

Lyman & Ash

1612 Latimer Street

Philadelphia, PA 19103

Counsel for Appellee

COWEN, Circuit Judge.
3

This matter requires us to decide whether elected 

officials are entitled to qualified immunity when they retaliate 

against a fellow official by denying him reappointment to a 

non-elected position because of comments he made in his 

capacity as an elected official. Because we conclude that the 

contours of the First Amendment right at issue were not 

clearly established, we hold that Appellants are entitled to 

qualified immunity on their federal claim.1

I.

In 2007, Harold Werkheiser was elected to serve on 

the three-member Board of Supervisors within Pocono 

Township. His six-year term began in January of 2008 and 

was scheduled to expire at the end of 2013. In addition to 

Werkheiser, the Board of Supervisors was comprised of 

Defendant Frank Hess, who was elected in 2009, and 

Defendant Henry Bengel, who was elected in 2011 (together, 

“Appellants”). Defendant Pocono Township (the 

“Township”), is a Second Class Township within the County 

of Monroe, Pennsylvania. 

Township Supervisors are permitted to hold positions 

of employment with the Township, including Roadmaster. 

The Roadmaster, or Director of Public Works, is a Township 

 

1

In denying Appellants’ motion to dismiss, the District 

Court allowed both Werkheiser’s federal claim and state law 

claim to proceed. Appellants have not appealed the District 

Court’s denial of their motion as it pertains to Werkheiser’s 

state law claim and review of that decision is not before us.
4

employee responsible for the supervision of all the activities 

of the Township Road Department and the Township Parks 

and Recreation Department. In 2008, Werkheiser was 

appointed Roadmaster by the Board of Supervisors. 

Hess began receiving wages in 2011 and, in 2012, 

assumed administrative duties previously performed by a 

predecessor supervisor. He received approximately $36,000 

per year in salary, health insurance, and other employee 

benefits, and holds the titles of Chairman of the Board of 

Supervisors, Secretary, and Treasurer. In 2012, Hess became 

temporarily disabled and took leave from the Township for 

ten days. During his absence, Frank Froio was selected by a 

consultant to the Township to assume Hess’s administrative 

duties. Froio was not appointed by the Board of Supervisors. 

On February 6, 2012, Bengel made a motion, seconded by 

Hess, to hire Froio as Township Administrator. Froio was to 

receive compensation of approximately $70,000 annually. 

Werkheiser opposed the motion, but it nonetheless carried. 

As Froio’s position developed, Hess’s responsibilities 

and workload decreased. Hess, however, continued to collect 

approximately the same compensation. Werkheiser voiced 

his objection to the cost of Froio’s position to the Township 

and to the creation of a new position with greater expense. 

He also objected to paying Hess when his duties were being 

performed by Froio, as well as to the appointment of an 

outside grant-writer, who would be performing work that 

Werkheiser asserted should be performed by Froio and Hess. 

In December of 2012, Appellants decided they no 

longer wanted Werkheiser to serve as Roadmaster. Along 
5

with several others, they began private deliberations to 

discuss denying Werkheiser reappointment for 2013 and to 

instead replace him with Bengel. In January of 2013, 

Werkheiser was formally denied reappointment as 

Roadmaster at a noticed reorganization meeting. 

As a result of the decision to not reappoint him, 

Werkheiser commenced an action in Pennsylvania state court. 

Defendants removed the action to federal court, and 

Werkheiser subsequently filed an amended complaint. In that 

complaint, Werkheiser asserted a claim for First Amendment 

retaliation, as well as a state law claim under the Second 

Class Township Code and Pennsylvania Sunshine Law. As to 

his First Amendment retaliation claim, Werkheiser alleges 

that he was denied his position as Roadmaster as a result of 

speech he expressed in his capacity as an elected official 

concerning the Board of Supervisors’ overpayment for 

administrative duties. 

II.

Appellants filed a motion to dismiss both claims, 

asserting, among other things, that they were entitled to 

qualified immunity as to Werkheiser’s federal claim against 

them. They argued that because Werkheiser’s speech 

concerning Township resources and payments were made in 

his official capacity as an elected representative of the 

Township, the Supreme Court’s decision in Garcetti v. 

Ceballos, 547 U.S. 410 (2006), applied. Accordingly, they 

asserted, Werkheiser’s speech was not protected by the First 

Amendment, and he was unable to demonstrate the violation 
6

of his constitutional rights. For his part, Werkheiser disputed 

the applicability of Garcetti, arguing that speech by elected 

officials should be treated differently than speech by public 

employees, and that, as an elected official, his speech was 

entitled to First Amendment protection not granted to public 

employees. The District Court agreed with Werkheiser, 

noting that there were important differences between the 

public employees discussed in Garcetti and elected officials. 

It therefore concluded that Werkheiser had established a 

constitutional violation. 

Appellants also argued that they were entitled to 

qualified immunity because the law regarding Werkheiser’s 

rights was not clearly established. The District Court rejected 

this argument as well. The District Court concluded that the 

Supreme Court’s decision in Bond v. Floyd, 385 U.S. 116, 

136-37 (1966), clearly established that elected officials are 

entitled to exercise their First Amendment rights free from 

retaliation. Further explaining that the Supreme Court had 

said nothing in Garcetti that overruled or altered its opinion 

in Bond, the District Court denied Appellants’ motion to 

dismiss. The current appeal followed.

III.

The Supreme Court has established a two-step analysis 

that governs whether an official is entitled to qualified 
7

immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001).2 First, 

whether the facts alleged by the plaintiff show the violation of 

a constitutional right, and second, whether the right at issue 

was clearly established at the time of the alleged misconduct. 

Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 

2010) (citing Saucier, 533 U.S. at 201). We may address the 

two Saucier prongs in either order, at our discretion. Pearson 

v. Callahan, 555 U.S. 223, 236 (2009). Because we do not 

believe the right at issue here was clearly established, we 

begin with the second step. 

“A Government official’s conduct violates clearly 

established law when, at the time of the challenged conduct, 

‘[t]he contours of [ a] right [are] sufficiently clear’ that every 

‘reasonable official would have understood that what he is 

doing violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 

2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 

635, 640 (1987) (all alterations in original)). “In determining 

whether a right has been clearly established, the court must 

define the right allegedly violated at the appropriate level of 

specificity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 

2012). The Supreme Court recently emphasized that “‘[w]e 

do not require a case directly on point’ before concluding that 

 

2 The District Court began its analysis with a 

discussion of Werkheiser’s constitutional rights and, 

specifically, whether elected officials are entitled to First 

Amendment protection for their official speech. Because we 

conclude that the law was not clearly established as to the 

existence of such a right, we need not probe the merits of the 

District Court’s analysis on this point.
8

the law is clearly established, ‘but existing precedent must 

have placed the statutory or constitutional question beyond 

debate.’” Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting alKidd, 131 S. Ct. at 2083).

A. It was Not Clearly Established that an 

Elected Official’s Speech is Entitled to 

First Amendment Protection

The District Court concluded that Appellants are not 

entitled to qualified immunity because “a reasonable official 

would have understood that retaliating against Werkheiser 

because he spoke as an elected official on issues concerning 

the Township would violate his constitutional rights.” 

Werkheiser v. Pocono Twp., 13-cv-1001, 2013 WL 4041856, 

at *14 (M.D. Pa. Aug. 8, 2013). We disagree, and conclude 

that Werkheiser’s First Amendment rights, as an elected 

official, were not sufficiently defined as to warrant denying 
9

Appellants qualified immunity.3 We pause here to emphasize 

that we do not today decide whether Garcetti is applicable to 

elected officials’ speech or not. Rather, we conclude only

that the law was not clearly established on this point.

In Garcetti, a non-elected deputy district attorney 

brought a section 1983 action alleging First Amendment 

retaliation against the county and his supervisors. In his 

capacity as deputy district attorney, he had prepared a 

memorandum discussing concerns he had about potential 

government misconduct. Allegedly motivated by the 

expressions in his memorandum, the deputy district attorney 

was then subjected to a series of retaliatory employment 

actions. In its opinion, the Supreme Court drew a distinction 

between a “public employee,” like the attorney, and an 

ordinary citizen who speaks out for him or herself. Garcetti, 

547 U.S. at 417. In the case of public employees, restrictions 

 

3 Although not discussed by the District Court or 

mentioned in any party’s brief before this court, Werkheiser 

suggested at oral argument that we apply the holdings of two 

First Amendment freedom of association cases, Elrod v. 

Burns, 427 U.S. 347 (1976), and Branti v. Finkel, 445 U.S. 

507 (1980), whereby the Supreme Court explained that an 

individual may establish a retaliation claim based on an 

adverse action taken against him or her based on political 

association. However, these cases are inapposite here, where 

Werkheiser has not advanced any freedom of association 

claim and instead bases his claim against Appellants entirely 

on his contention that they violated his First Amendment 

freedom of speech. 
10

on speech are permissible because, “when a citizen enters 

government service, the citizen must accept certain 

limitations on his or her freedom.” Id. at 418. Accordingly, 

the Court held that the plaintiff’s memorandum was not 

protected speech under the First Amendment. Id.

Of course, “public employees do not surrender all their 

First Amendment rights by reason of their employment. 

Rather, the First Amendment protects a public employee’s 

right, in certain circumstances, to speak as a citizen 

addressing matters of public concern.” Id. at 417. Thus, the 

Supreme Court explained, “[s]o 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.” Id. at 

419. 

Conversely, the Court noted that restrictions on speech 

by public employees were less problematic than restrictions 

on speech by ordinary citizens. This is so, in part because, 

“[e]mployers have heightened interests in controlling speech 

made by an employee in his or her professional capacity. 

Official communications have official consequences, creating 

a need for substantive consistency and clarity. ” Id. at 422. 

Indeed, some restrictions on employee speech were deemed 

necessary because “[s]upervisors must ensure that their 

employees’ official communications are accurate, 

demonstrate sound judgment, and promote the employer’s 

mission.” Id. at 422-23. The court reasoned that greater 

restrictions on public employees’ speech than on ordinary 

citizens are therefore permissible because such restrictions 
11

“simply reflect[ ] the exercise of employer control over what 

the employer itself has commissioned or created.” Id. at 422.

Many of the reasons for restrictions on employee 

speech appear to apply with much less force in the context of 

elected officials. Werkheiser’s speech as an elected official is 

not subject to prior review or approval. To use Garcetti’s

language, his speech is neither “controlled” nor “created” in 

the same way that an employer controls the speech of a 

typical public employee. And, as the Supreme Court 

admonished, “[p]roper application of [its] precedents . . .

leads to the conclusion that the First Amendment does not 

prohibit managerial discipline based on an employee’s 

expressions made pursuant to official responsibilities.” Id. at 

424 (emphasis added). But of course, there is no truly 

comparable analog to “managerial discipline” when 

discussing retaliation between elected officials.

And, because elected officials to a political body 

represent different constituencies, there would seem to be far 

less concern that they speak with one voice. In fact, debate 

and diversity of opinion among elected officials are often 

touted as positives in the public sphere. See Bond, 385 U.S. 

at 136-37 (“Legislators have an obligation to take positions 

on controversial political questions so that their constituents 

can be fully informed by them . . . also, so [constituents] may 

be represented in governmental debates by the person they 

have elected to represent them.”).

Moreover, as the District Court here highlighted, the 

notion that speech pursuant to a public employee’s “official 
12

duties” is afforded no protection under the First Amendment 

could have odd results if applied to elected officials. Relying 

on another district court opinion from this circuit, the court 

noted that “if Garcetti applied to elected officials, speaking 

on political issues would appear to be part of an elected 

official’s ‘official duties,’ and therefore unprotected. But 

protection of such speech is the ‘manifest function’ of the 

First Amendment.” Werkheiser, 2013 WL 4041856, at *9 

(quoting Zimmerlink v. Zapotosky, No. 10-237, 2011 U.S. 

Dist. LEXIS 53186 (W.D. Pa. Apr. 11, 2011)) (citing Bond, 

385 U.S. at 135). Of course, Appellants may well have been 

exercising a competing First Amendment right to make a 

political statement by removing Werkheiser. See Blair v. 

Bethel Sch. Dist., 608 F.3d 540, 545 (9th Cir. 2010) (noting 

that “almost all retaliatory actions can be expressive” and 

that, while an elected official may have the right to criticize 

other officials for their votes, the elected officials he is 

criticizing “had the corresponding right to replace [him] with 

someone who, in their view, represented the majority view.”).

We are also sensitive to the fact that Supreme Court 

precedent prior to Garcetti suggests that Werkheiser’s speech 

may be entitled to some degree of First Amendment 

protection. In Bond v. Floyd, the Supreme Court held that an 

elected official’s First Amendment rights were violated when 

the Georgia House of Representatives refused to seat him 

because of statements he had made criticizing the Vietnam 

War. 385 U.S. at 135-136. The Court noted that the 

“manifest function of the First Amendment in a representative 

government requires that legislators be given the widest 

latitude to express their views of policy” and “debate on 
13

public issues should be uninhibited, robust, and wide-open.” 

Id. Indeed, the Court noted that it was part of a legislator’s 

official duties “to take positions on controversial political 

questions so that their constituents can be fully informed by 

them, and be better able to assess their qualifications for 

office; also so they may be represented in governmental 

debates by the person they have elected to represent them.” 

Id. at 136-37. The Supreme Court did not deem it necessary 

to address or revisit Bond in deciding Garcetti.

Notwithstanding then, that the underlying rationale in 

Garcetti appears, to some extent, inapplicable to elected 

officials, we take seriously the Court’s explicit 

pronouncements that the “controlling factor” in that case was 

that the expressions at issue “were made pursuant to [the 

plaintiff’s] duties as a calendar deputy” and that the 

“significant point is that the memo was written pursuant to 

[the plaintiff’s] official duties. Restricting speech that owes 

its existence to a public employee’s professional 

responsibilities does not infringe any liberties the employee 

might have enjoyed as a private citizen.” Garcetti, 547 U.S. 

at 421-22. Indeed, the Court’s stated holding was simply that 

“when public employees make statements pursuant to their 

official duties, the employees are not speaking as citizens for 

First Amendment purposes, and the Constitution does not 

insulate their communications from employer discipline.” Id. 

While there may be sound reasons to assert that Garcetti does 

not apply to elected officials’ speech, we cannot accept the 

District Court’s inherent conclusion that it is “beyond debate” 

that this was clearly established law at the time of 
14

Werkheiser’s non-appointment. Stanton, 134 S. Ct. at 5 

(quoting al-Kidd, 131 S. Ct. at 2083).4 

 

4 Werkheiser argues that even if Garcetti’s “public 

employee” analysis applies to elected officials, it is not 

applicable to him because Town Supervisors are not 

employees of the town. 
15

In this regard, we note the unsettled nature of the law 

amongst both the circuit courts and the district courts. In 

Rangra v. Brown, 566 F.3d 515, 518 (5th Cir. 2009), a Fifth 

Circuit panel grappled with whether elected officials’ speech 

 

Relying on two lower state court cases, he argues that 

Garcetti does not apply to township supervisors because they 

are not “employees” of the town. However, Werkheiser 

misconstrues the law. In those cases, the courts were merely 

attempting to determine whether town supervisors were 

employees for purposes of two specific state statutes: the state 

Workmen’s Compensation law, Savage v. Mt. Pleasant Twp.

Supervisors, 181 A. 519, 520 (Pa. Super. Ct. 1935), and a 

particular provision of the Second Class Township Code 

authorizing premium payments, Appeal of Auditor’s Report of 

Muncy Creek Twp., 520 A.2d 1241, 1245-46 (Pa. Cmwlth. 

1987). The state courts’ decisions did not speak to whether 

town supervisors are employees in any broader sense and, in

the latter case, noted that the provision at issue must not have 

been intended to include supervisors because it would have 

granted them “unfettered authority . . . to approve additional 

compensation for themselves.” Appeal of Auditor’s Report of 

Muncy Creek Twp., 520 A.2d at 1245-46. In any event, the 

mere fact that, in certain contexts, state courts have declined 

to deem Town Supervisors employees in no way compels the 

conclusion that they are not public employees for purposes of 

First Amendment analysis. Moreover, the question is not 

necessarily whether elected officials are public employees, 

but rather whether they are sufficiently similar to public 

employees that Garcetti governs and they are not entitled to 

First Amendment protection. 
16

is entitled to First Amendment protection in the wake of 

Garcetti, albeit outside of the retaliation context. In rejecting 

Garcetti’s application to elected officials, the court concluded 

that “when the state acts as a sovereign rather than as an 

employer, its power to limit First Amendment freedoms is 

much more attenuated. That is because a state’s interest in 

regulating speech as a sovereign is ‘relatively subordinate . . . 

[as] [t]he government cannot restrict the speech of the public 

at large just in the name of efficiency.” Id. at 522-23 (citing 

Waters v. Churchill, 511 U.S. 661, 675 (1994)). In holding 

that elected officials' speech is entitled to First Amendment 

protection, the court permitted the officials to challenge 

certain provisions of the Texas Open Meetings Act that 

criminalized the discussion of public matters by a quorum of 

public officials when outside of an open meeting. Id. at 522; 

see also Siefert v. Alexander, 608 F.3d 974, 981 (7th Cir. 

2010) (applying strict scrutiny to certain provisions of 

Wisconsin Code of Judicial Conduct and engaging in a 

balancing test for others, but taking for granted that an elected 

state court judge’s speech is entitled to some degree of First 

Amendment protection). 

The continuing viability of the panel's decision in 

Rangra is, however, somewhat in doubt. Following 

publication of its decision, the Fifth Circuit reheard the case 

en banc, and, in a one sentence opinion devoid of any 

analysis, simply ordered the case dismissed as moot. See 

Rangra v. Brown, 584 F.3d 206, 207 (5th Cir. 2009) (en 

banc). Moreover, at least one circuit court has expressed 

skepticism that elected officials’ speech is entitled to any 

protection whatsoever. See Parks v. City of Horseshoe Bend, 
17

480 F.3d 837, 840 n.4 (8th Cir. 2007) (stating in a footnote 

without analysis that the elected official-plaintiff’s speech 

would not be protected under the First Amendment if it was 

made in the course of her official duties).5

There is also substantial disagreement among the 

district courts. Compare Hogan v. Twp. of Haddon, No. 04-

2036, 2006 WL 3490353 (D.N.J. Dec. 1, 2006), aff’d on other 

grounds, 278 F. App’x 98 (3d Cir. 2008) (concluding that 

defendant was entitled to qualified immunity on plaintiff’s 

First Amendment claim because Garcetti applies to elected 

officials’ speech and speech made in plaintiff’s capacity as 

elected official was therefore not entitled to First Amendment 

protection); Hartman v. Register, No. 06-cv-33, 2007 WL 

915193 (S.D. Ohio Mar. 26, 2007) (dismissing First 

Amendment retaliation claim on substantially same grounds); 

Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606 

(W.D. Mich. 2009) (granting defendants’ motion for 

summary judgment on substantially same grounds), with

Zimmerlink, No. 10-237, 2011 U.S. Dist. LEXIS 53186, at 

 

5 We note as well that we have not yet addressed 

Garcetti’s application to elected officials. We had occasion 

to do so, but, having affirmed the district court’s decision on 

other grounds, expressly declined to reach the issue. See 

Hogan v. Twp. of Haddon, 278 F. App’x at 102 n.1 (noting 

that although the plaintiff had “argued that the District Court 

improperly applied the Supreme Court’s precedent in Garcetti 

v. Ceballos . . . because we conclude that [plaintiff’s] First 

Amendment rights were not violated, we need not reach her 

Garcetti arguments.”). 
18

*6-7, 8-11 (denying defendants’ motion to dismiss because 

“governmental interest in regulating speech of public 

employees to promote efficient operations does not apply to 

speech of an elected official”); Carson v. Vernon Twp., Civ.

No. 09-6126, 2010 WL 2985849, at *14 (D.N.J. July 21, 

2010) (denying motion to dismiss claim of deprivation of free 

speech, at least in part, because elected official’s political 

expression on township matters was “unquestionably 

protected under the First Amendment.”).

Although the Supreme Court has noted that qualified 

immunity is not the guaranteed product of disuniform views 

of the law, we find that the well-reasoned decisions on both 

sides render the law sufficiently unclear at the time of 

Appellants’ actions so as to shield them from liability. 

Safford Unified Sch. Dist. No. 1. v. Redding, 557 U.S. 364, 

378 (2009). 

B. It was Not Clearly Established that the Type 

of Retaliation at Issue Here Would Violate 

the First Amendment

In addition, we hold that the law was not clearly 

established that the kind of retaliation Appellants engaged in 

against Werkheiser violated his First Amendment rights.

Werkheiser essentially asks this court to declare that a 

politically motivated act, undertaken by a majority of his 

fellow elected Board of Supervisors, pursuant to their proper 

authority, nonetheless violates the First Amendment if it is 

taken in retaliation for speech made in his capacity as an 
19

elected official. As this court has indicated, however, not all 

retaliation violates the First Amendment. See Thomas v. 

Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (noting 

that the First Amendment requires “retaliatory action 

sufficient to deter a person of ordinary firmness from 

exercising his constitutional rights.”) (citation omitted) 

(emphasis added).

To be sure, Bond, which the District Court heavily 

relied on, signified that one kind of very serious retaliation by 

elected officials is unlawful -- the exclusion of a duly elected 

official from office. But we discern nothing in Bond that 

suggests the Court intended for the First Amendment to guard 

against every form of political backlash that might arise out 

of the everyday squabbles of hardball politics. See, e.g., 

Camacho v. Brandon, 317 F.3d 153, 162 (2d Cir. 2003) 

(concluding that a city council member’s aide could not bring 

a First Amendment retaliation claim for his dismissal, in part, 

because it would “subject to litigation all manners and 

degrees of politically motivated, retaliatory conduct directed 

at public officials.”); Zilich v. Longo, 34 F.3d 359, 363 (6th 

Cir. 1994) (“The First Amendment is not an instrument 

designed to outlaw partisan voting or petty political bickering 

through the adoption of legislative resolutions.”). Rather, as

other courts to consider the issue have concluded, the First 

Amendment may well prohibit retaliation against elected 

officials for speech pursuant to their official duties only when 

the retaliation interferes with their ability to adequately 

perform their elected duties. See Blair, 608 F.3d at 545 n.4 

(Ninth Circuit opinion noting that retaliation is unlawful 

when it has the “effect, deleterious to democracy, of 
20

nullifying a popular vote” or otherwise “deprive[s] [an 

elected official] of authority he enjoyed by virtue of his 

popular election.”).

Our opinion in Monteiro v. City of Elizabeth, 436 F.3d 

397, 404 (3d Cir. 2006), similarly offers Werkheiser little 

assistance. In that case, an elected member of the New Jersey 

City Council claimed that his First Amendment rights were 

violated when he was ejected from a Council meeting, 

allegedly for expressing a particular viewpoint. The 

defendants then sought to cloak themselves in the doctrine of 

qualified immunity. On appeal, we were asked to decide only 

whether, when entitlement to qualified immunity depends on 

a disputed issue of fact – in that case, whether the plaintiff 

had in fact been ejected for expressing a particular viewpoint 

-- it is proper to submit that question to the jury. In affirming 

the district court’s decision to deny summary judgment and 

allow a jury to decide that question, we noted that “[i]t is 

clearly established that when a public official excludes an 

elected representative or a citizen from a public meeting, she 

must conform her conduct to the requirements of the First 

Amendment.” Id. But Monteiro, like Bond, focused on an 

elected representative whose ability to fulfill his elected 

obligations was purposefully impaired when he was 

prevented from speaking at a Council meeting. Our opinion 

says nothing about elected officials’ First Amendment rights 

when the action at issue does not involve any such 

impairment.

We also note in this regard decisions from the Fifth 

and Ninth circuits. In Blair v. Bethel Sch. Dist., the Ninth 
21

Circuit addressed whether an elected official could 

successfully claim retaliation under the First Amendment for 

speech made in his capacity as an elected official. 608 F.3d 

at 541. The plaintiff in Blair was a publicly elected member 

of the school board, who had also been elected by his peers to 

serve as vice president. In his capacity as a member of the 

school board, Blair served as a persistent critic of the school 

district superintendent. Eventually, Blair’s fellow board 

members voted to remove him as vice president. Id. at 543. 

Blair then sued, alleging that the Board’s conduct constituted 

impermissible retaliation against him for exercising his First 

Amendment rights.

The Ninth Circuit held that retaliation against an 

elected official is largely not actionable when it is at the 

hands of his peers in the political arena. Id. The court 

emphasized that Blair, like Werkheiser here, had been 

removed from a position “by the very people who elected him 

to the position in the first place.” Id. at 544. Importantly, the 

Ninth Circuit noted that “despite [Blair’s] removal as Board 

vice president, he retained the full range of rights and 

prerogatives that came with having been publicly elected.” 

Id. Absent such a deprivation, the court refused Blair’s 

invitation to more broadly conclude “that the First 

Amendment prohibits elected officials from voting against 

candidates whose speech or views they don’t embrace. 

Experience and political reality convince us this argument 

goes too far.” Id. at 545. Accordingly, the court concluded 

that the Board’s action did not amount to retaliation in 

violation of the First Amendment. Id. at 546. 
22

In Rash-Aldridge v. Ramirez, 96 F.3d 117 (5th Cir. 

1996), the plaintiff was an elected member of the city council 

who was later appointed to represent the council on a local 

metropolitan planning board. In her capacity as an appointed 

member of the body, she wrote a letter taking a position at 

odds with one maintained by the city council. As a result of 

her actions, the council removed her from her appointed 

position and she sued. Id. at 118-119.

The plaintiff in Rash-Aldridge concededly made the 

statements for which she was removed as an appointed 

representative of the council, and not, as is alleged here, in 

her capacity as an elected representative. However, that fact 

was immaterial to the Fifth Circuit's decision. Rather, in 

concluding that the plaintiff’s First Amendment rights had not 

been violated, the Fifth Circuit emphasized that her removal 

from the appointed office had “no implication of [her] 

fundamental rights as an elected official.” Id. at 119. “Her 

capacity as an elected official was not compromised because 

the council did not try to remove her from her seat on the 

council nor take away any privileges of that office because of 

what she said or did.” Id.

The Fifth Circuit did not address whether the 

plaintiff’s speech would be protected under the First 

Amendment. But that is of little moment. In Rash-Aldridge, 

as in Blair, the court drew an important distinction between 

types of retaliation against elected officials: the type of 

retaliation at issue in Bond, which impedes elected officials' 

ability to serve as effective representatives, and is, therefore, 

impermissible; and the type of retaliation at issue here, where 
23

an elected official is removed from an unrelated position that 

does not interfere with his or her role as an elected official 

and that, accordingly, does not run afoul of the First 

Amendment.6

To be sure, as we indicated in our discussion on the 

applicability of Garcetti to elected officials’ speech, we do 

not now decide these constitutional issues and what 

retaliation against elected officials, if any, violates the First 

Amendment. Rather, we consider this legal landscape to 

decide whether Appellants are entitled to qualified immunity. 

Contrary to the District Court, we conclude that these 

opinions suggest that elected officials who are retaliated 

against by their peers have limited recourse under the First 

Amendment when the actions taken against them do not 

interfere with their ability to perform their elected duties. 

 

6 We are mindful that the underlying facts adduced at 

trial in Squires v. Bonser, 54 F.3d 168, 171 (3d Cir. 1995), a 

case cited by Werkheiser and decided by a panel of this court 

that included the undersigned, bear a striking resemblance to 

the current action. Nonetheless, on appeal in Squires, the 

only question before us was whether the district court’s denial 

of the former Roadmaster’s request for reinstatement as a 

remedy was inappropriate. As a result, the analysis we 

employed in Squires offers little guidance here. Nonetheless, 

the fact that a jury awarded a plaintiff in Werkheiser’s 

position damages on a nearly identical claim – a judgment 

seemingly at odds with the remainder of the case law on this 

issue – may suggest the unsettled nature of the law as to this 

issue as well. 
24

There is no allegation here that the failure to reappoint 

Werkheiser as Roadmaster in any way excluded him from 

Town Supervisors’ meetings, interfered with his rights, 

privileges, or responsibilities as an elected official, or 

hindered his ability to fulfill his elected duties. Indeed, the 

complaint indicates that although he was not reappointed as 

Roadmaster in January of 2013, his term as Township 

Supervisor did not expire until the end of that year and there 

is no indication that he did not fully and ably serve until the 

completion of his term. Thus, unlike in Bond or Monteiro, 

where an elected body attempted to prevent an official from 

carrying out the duties bestowed upon him by his 

constituents, here, the Board of Supervisors merely declined 

to offer Werkheiser a position that was wholly unrelated to 

his position as an elected official and that it had provided him 

with in the first place. Against this legal backdrop, and under 

these circumstances, it is not beyond debate that a reasonable 

official in Appellants’ position would have understood that 

retaliating against Werkheiser by denying him reappointment 

would violate his constitutional rights. As a result, 

Appellants are entitled to qualified immunity.

IV.

For the foregoing reasons, we vacate the District 

Court’s order and judgment dated August 8, 2013 and remand 

for further proceedings consistent with this opinion.