UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES B. PHILLIPS, SR.,
Plaintiff-Appellant,

v.

TOWN OF PAMPLICO; DOZIER M.
MUNN, SR.; LUCIUS B. EADDY;
                                                                  No. 98-1452
SHIRLEY P. COLEMAN; GENE R.
GAINEY; CHARMON G. HAINES, SR.,
Individually and as the Town
Council of the Town of Pamplico,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-97-202-4-22)

Submitted: January 5, 1999

Decided: January 21, 1999

Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John A. O'Leary, O'LEARY ASSOCIATES, INC., Columbia, South
Carolina, for Appellant. Robert Thomas King, Mark Wilson Buyck,
III, WILLCOX, MCLEOD, BUYCK & WILLIAMS, P.A., Florence,
South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Plaintiff James B. Phillips, Sr., appeals from the district court's
order granting summary judgment to Defendants in his civil action
alleging that he was wrongfully terminated from his position as Chief
of Police for the town of Pamplico in violation of 42 U.S.C.A. § 1983
(West Supp. 1998), and South Carolina state law. For the following
reasons, we affirm.

The Town Council hired Phillips at its April 6, 1996, meeting at
a salary of $18,000 per year for a six-month probationary period.
Mayor Dozier M. Munn, Sr., declined Phillips' request for a written
contract the next day. No facts in the record indicate that the Town
Council hired Phillips for a particular term or was otherwise restricted
in its ability to terminate Phillips' employment. Phillips understood
that he reported directly to Mayor Munn but that the Town Council
held ultimate authority for implementation of police policies. Specifi-
cally, Phillips knew that Council member Shirley P. Coleman served
as the town's "Police Commissioner," which Phillips viewed as his
liaison between the police department and the Council.

At the October 17, 1994, town meeting, the Council hired Phillips
as a "permanent employee" and increased his annual salary to
$20,000. Phillips submitted a "Letter of Understanding" which dis-
cussed his understanding of the terms and conditions of his employ-
ment as Chief of Police and goals he had for the job--including that
he had total authority over the department. Again the letter did not
reference any expected term of employment.

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Thereafter, relations between Phillips and the Council, particularly
with Coleman, began to deteriorate. Phillips came under criticism by
the Council and the mayor for his scheduling of officers, refusal to
provide Coleman with a key to his office, hiring an officer with a sus-
pended driver's license, failure to adequately investigate crimes and
apprehend suspects, and citizen complaints regarding the depart-
ment's performance. Because of these concerns, Phillips received sev-
eral formal warnings and reprimands which were placed in his
personnel file.

On May 17, 1996, Phillips filed a document titled"Formal Com-
plaint and Charge" with the Town Clerk. The document, which was
signed by three of his officers, listed four specific charges only
against Coleman: (1) she regularly "stalked" and harassed officers; (2)
she had undermined Phillips' authority and conspired with others to
terminate him; (3) she had breached a verbal agreement to not inter-
fere with the operation of the police department; and (4) her interfer-
ence violated town ordinances. The complaint stated that Coleman's
actions had reduced department morale, created dissension, and
caused "great stress and hardship upon the staff and officers of this
department."1 The document sought the removal of all reprimands
authored by Coleman, that she voluntarily remove herself as Commis-
sioner of Police, and that if Coleman refused to remove herself that
the mayor do so himself.

Three days later at its regularly scheduled meeting, the Town
Council voted 4-2 to terminate Phillips. The printed agenda for the
meeting did not show that Phillips' job performance was an issue to
be discussed. Nonetheless, Phillips admitted in his deposition that he
had knowledge as of February 1996, that Coleman seriously sought
his removal.

Phillips sued the mayor and various Town Council members in
their individual and official capacities under § 1983, alleging viola-
tions of his First and Fourteenth Amendment rights. The district court
granted Defendants' motion for summary judgment for several rea-
sons. First, although the district court found that the "Formal Com-
plaint and Charge" filed by Phillips was in part a matter of public
_________________________________________________________________
1 Joint Appendix ("J.A.") at 17-18.

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concern under the First Amendment, the court concluded that the
Town Council's interest in ensuring that its police chief fulfilled the
demands of the position outweighed Phillips' interest in commenting,
as a citizen, about his perception of Coleman's negative interference
with the department. See Cromer v. Brown, 88 F.3d 1315, 1325 (4th
Cir. 1996). Also, the court alternatively stated that even if it had
found against Defendants on this claim, that they were entitled to
qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Next, the court denied relief on Phillips' Fourteenth Amend-
ment claim because it found he had no protectable property right to
which due process would attach. See S.C. Code Ann. § 5-11-40(b)
(1976); Jenkins v. Weatherholz, 909 F.2d 105, 107 (4th Cir. 1990);
Pittman v. Wilson County, 839 F.2d 225, 229-30 (4th Cir. 1988). On
appeal, Phillips alleges the district court erred with respect to each of
the above issues.2

We review an award of summary judgment de novo. See Miller v.
Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc). Summary
judgment is only appropriate when the moving party shows that there
is no genuine issue of material fact and that the moving party is enti-
tled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Miller
v. Federal Deposit Ins. Corp., 906 F.2d 972, 973-74 (4th Cir. 1990).

The First Amendment protects public employees from termination
of their employment in retaliation for their exercise of speech on mat-
ters of public concern. See generally Connick v. Myers, 461 U.S. 138,
145 (1983); Pickering v. Board of Educ., 391 U.S. 563, 573-74
(1968). A public employee's speech about matters of personal inter-
est, however, is not protected. Thus, "[p]ersonal grievances, com-
plaints about conditions of employment, or expressions about other
matters of personal interest do not constitute speech about matters of
public concern that are protected by the First Amendment . . . ."
Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.
1992) (citing Pickering, 391 U.S. at 568).
_________________________________________________________________

2 The court also declined to exercise its supplemental jurisdiction over
the related state law actions and dismissed these claims without preju-
dice. Phillips, however, does not raise this as error on appeal.

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This First Amendment protection of speech on matters of public
concern, however, must be tempered by the government's interest in
governmental effectiveness, efficiency, order, and the avoidance of
disruption. Thus, the government is entitled to maintain discipline and
ensure harmony as necessary to the operation and mission of its agen-
cies and for this purpose may regulate the speech of its employees or
remove employees whose conduct hinders its efficient operation. See
Connick, 461 U.S. at 142, 150-52. To determine whether a public
employee has stated a claim under the First Amendment for retalia-
tory discharge, we must determine whether the public employee: (1)
was speaking as a citizen upon a matter of public concern or as an
employee about a matter of personal interest; (2) had an interest in
speaking upon the matter of public concern which outweighed the
government's interest in providing effective and efficient services to
the public; and (3) speech was a substantial factor in the employee's
termination decision. See Stroman, 981 F.2d at 156.

In balancing the public employee's interest in speaking on matters
of public concern against the government's interest in providing
effective and efficient government through its employees, we must
take into account the context of the employee's speech, including the
employee's role in the government agency, and the extent to which
it disrupts the operation and mission of the agency. See Rankin v.
McPherson, 483 U.S. 378, 388-91 (1987) (listing factors to be consid-
ered). Thus, we have stated "a public employee, who has a confiden-
tial, policy making, or public contact role and speaks out in a manner
that interferes with or undermines the operation of the agency, its mis-
sion, or its public confidence, enjoys substantially less First Amend-
ment protection than does a lower level employee." McVey v. Stacy,
157 F.3d 271, 278 (4th Cir. 1998) (citations omitted); see also Bates
v. Hunt, 3 F.3d 374, 378 (11th Cir. 1993) (a confidential or policy-
making employee, or one whose job requires extensive public contact
on employer's behalf, does not have much protection under the First
Amendment when he speaks or acts in a hostile way toward his
employer); Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir. 1983)
(explaining that high-level public executives have little expectation of
free speech rights and generally accept employment knowing that
speech critical of the employer's policy subjects them to discharge).

The record reveals that Phillips, in his position as Chief of Police,
had much contact with the public and was the highest ranking officer

                    5
in the department and therefore garners less protection to speak out
against Council member Coleman's treatment of his department. See
McVey, 157 F.3d at 278. Also, Phillips' comments as stated in the
"Formal Complaint and Charge" more closely resemble the personal
frustrations of an employee with his superior than a matter of public
concern. He sought the removal of Coleman as Police Commissioner
and the actions she had taken in that role. Asking for the head of your
superior in the midst of an acrimonious power struggle can hardly be
called a matter of public concern over private interest. Given the
strained relations between Phillips and Coleman, the Council essen-
tially was forced to chose between the two, as neither seemed willing
to let the other do their perceived jobs without interference. Finally,
although Phillips' removal did occur three days after he filed his
Complaint, creating the inference that it was a substantial factor in his
termination decision, it also appeared to be the last straw in his long
standing dispute with Coleman. Thus, we find the district court prop-
erly balanced the interests at issue and found Coleman failed to estab-
lish a First Amendment claim. See Stroman, 981 F.2d at 159-60.

Because we find no First Amendment violation, we decline to
address whether Defendants were entitled to qualified immunity--
although we note qualified immunity rarely is denied in such claims.
See DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir. 1995) (because
of the sophisticated balancing of interests required to determine
whether the plaintiff's constitutional rights have been violated in a
First Amendment case, "only infrequently will it be `clearly estab-
lished' that a public employee's speech on a matter of public concern
is constitutionally protected"). Regarding Phillips' remaining issue,
we affirm on the reasoning of the district court. See generally
Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (to maintain a proce-
dural due process claim, claimant must establish a protected property
or liberty interest). We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.

AFFIRMED

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