                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-2134

                       PATRICK J. O'CONNOR,

                      Plaintiff, Appellant,

                                v.

                    ROBERT W. STEEVES, ET AL.,

                      Defendants, Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Mark L. Wolf, U.S. District Judge]
                                                    

                                           

                              Before

                       Selya, Circuit Judge,
                                           

                  Aldrich, Senior Circuit Judge,
                                               

                     and Cyr, Circuit Judge.
                                           

                                           

   Paul  F. Denver  with whom  Neil Rossman  and Rossman,  Rossman &amp;
                                                                    
Eschelbacher were on brief for appellant.
          
   John  Foskett  with  whom  Deutsch,  Williams,  Brooks, DeRensis,
                                                                    
Holland &amp; Drachman, P.C., Nancy Merrick, Merrick &amp; Louison, Charles H.
                                                                    
Riley, Jr. and Ganz, Ham &amp; Riley were on brief for appellees.
                              

                                           

                           May 28, 1993
                                           

          CYR, Circuit Judge.  Patrick  O'Connor, former Superin-
          CYR, Circuit Judge.
                            

tendent of  Public Works  for the  Town of Nahant,  Massachusetts

("Town"), was discharged following  an extended feud with Select-

man Robert Steeves.  O'Connor sued the Town and its three select-

men     Steeves, Harry Edwards and Richard Lombard    for violat-

ing his First Amendment rights to freedom of speech and political

association.  The district court granted summary judgment for all

defendants.

                                I

                            BACKGROUND
                                      

          Summary judgment is appropriate  if no genuine issue of

material fact exists and the moving party is entitled to judgment

as a  matter of law,  Fed. R. Civ.  P. 56(c); Mesnick  v. General
                                                                 

Elec. Co., 950  F.2d 816, 822 (1st Cir.  1991), cert. denied, 112
                                                            

S.Ct. 2965 (1992).   All reasonable inferences are to be drawn in

favor  of  the  party opposing  summary  judgment,  in  this case

appellant  O'Connor, just as all disputed facts are viewed in the

light most  favorable to him.   See Goldman v. First  Nat'l Bank,
                                                                

985 F.2d 1113, 1116 (1st Cir. 1993); Garside v.  Osco Drug, Inc.,
                                                                

895 F.2d 46, 48 (1st Cir. 1990).  On the other  hand, we will not

credit "conclusory allegations, improbable inferences, and unsup-

ported speculation."  Medina-Munoz  v. R.J. Reynolds Tobacco Co.,
                                                                

896 F.2d 5, 8 (1st Cir. 1990).

                                2

A.   The Town
             

          Nahant,  Massachusetts, is  a municipality  of approxi-

mately 4,200 people,  located north  of Boston.   Under the  Town

Charter,  a three-member Board of  Selectmen serves as the "chief

policymaking  agency of  the  town."   Selectmen serve  staggered

three-year terms; one  seat on  the Board is  filled by  election

each year.

          Among  their other  duties, the  Selectmen are  charged

with  appointing a  Superintendent of  Public Works  (hereinafter

"Superintendent"), whose duties are defined in the Town Charter:

          He  shall  administer, under  the supervision
          and  direction of the Selectmen, a Department
          of Public Works and the highway, water,  sew-
          er,   cemetery,   tree   warden  and   health
          departments.  He shall also administer, under
          the supervision and  direction of the Select-
          men,  such other departments  under their su-
          pervision  as  the  Selectmen may  designate,
          except  the fire  and  police.   He shall  be
          responsible  for  the  administration of  all
          departments within the scope of his duty, and
          shall hold office subject  to the will of the
          Selectmen.  He  shall be specially fitted  by
          education, training and experience to perform
          the duties of said office. . . .   During his
          tenure, he  shall hold  no other  elective or
          appointive  office, nor  shall be  engaged in
          any other business  or occupation. . . .  and
          shall, subject to the approval of the Select-
          men,  appoint  such  assistants,  agents  and
          employees as the performance of the duties of
          the various departments under his supervision
          may require.

The  job description for the position notes that it is "performed

with  professional  independence  and considerable  latitude  for

independent  administrative  judgment" and  that  "[e]rrors could

result in major loss of  time and expenses."  It also  notes that

                                3

the Superintendent "makes frequent  contacts with other officials

and the  general public."  Commensurate  with these responsibili-

ties, the    Superintendent  receives  a salary  of  $41,286;  by

comparison, the Nahant  Police Chief and  Nahant Fire Chief  each

receive  $41,365, and  the Nahant  Superintendent of  Schools re-

ceives $48,000.  Lower level salaries in the Department of Public

Works ["Department"] range from  $20,000-$24,000 for laborers  to

$31,000-35,000 for foremen.

B.   O'Connor's Appointment
                           

          Prior to 1989, Robert Steeves served as Superintendent.

The  Town's  three Selectmen  at  the time  were  Jayne Solomine,

Richard Lombard, and Charles Kelley.  In February 1989, following

Kelley's death,  Steeves was elected  to the Board  of Selectmen,

triggering  a  search  for  a replacement  Superintendent.    The

position  was advertised  as requiring  "an associates  degree in

civil engineering or five years experience in related engineering

fields."

          Although O'Connor had no engineering degree, he submit-

ted  an application  for the  position.   O'Connor had  worked in

construction prior to 1963; then as a foreman in a local manufac-

turing plant;  then, following  his retirement, in  various posi-

tions  for  the  Rynn  Corporation,  a  family-owned construction

company.  More to  the present point, perhaps, O'Connor  had been

active in  the Solomine, Kelley, and  Lombard election campaigns,

having headed  Solomine's initial  campaign for public  office in

1983.   On July 20, 1989, O'Connor  was appointed Superintendent,

                                4

by  a  2-1  vote, with  Lombard  and  Solomine  voting in  favor.

Steeves voted against the  appointment, stating that O'Connor was

unqualified and had been appointed because of his  connections to

the Lombard and Solomine election campaigns.

C.   Steeves and O'Connor
                         

          Notwithstanding  O'Connor's appointment  as Superinten-

dent, Steeves  continued his hands-on involvement  in the Depart-

ment,  dealing  with  vendors,  directing  personnel,  and making

various small  purchases on  the Department's account.   O'Connor

believed  that  Steeves'   continuing  involvement   "undermined"

O'Connor's authority within the  Department, and on several occa-

sions in late 1989 O'Connor  told Steeves he should stay  "out of

doing my job."  At around the same time, O'Connor became aware of

Steeves' practice  of purchasing  goods for personal  use through

the Department account, which was not subject to the 5% Massachu-

setts sales  tax.  Although  Steeves later repaid  the Department

for  these purchases, the record does not indicate that the sales

tax was ever paid.  After discussing the matter with Town Accoun-

tant  Joseph  Canty, O'Connor  concluded  that  the practice  was

improper,  and asked  Steeves  to stop  "so  we could  have  some

accountability through the financial system and all these invoic-

es and everything else."  Steeves did not respond.

          When  his  approaches to  Steeves  proved unsuccessful,

O'Connor  complained to  Selectmen  Lombard  and  Solomine  about

Steeves' conduct,  including the  improper use of  the Department

account.   In January or February 1990, O'Connor wrote the Board,

                                5

detailing  his  complaints about  Steeves'  purchasing practices.

The  letter was  discussed at  a "public  meeting" of  some kind,

although O'Connor is not  sure whether any members of  the public

were in attendance.  Selectman Lombard told Steeves to stop using

the Department account, and  wrote all department heads directing

them to  instruct employees not to charge purchases on department

accounts without authorization.  In response to Lombard's letter,

O'Connor drafted an internal memorandum  prohibiting unauthorized

purchases  on the  Department account.  The memorandum had little

noticeable  effect.   Steeves continued  to charge  personal pur-

chases on the Department account.

          In March 1990, O'Connor addressed another memorandum to

the Board, again  describing Steeves' personal use of the Depart-

ment  account, and  requesting that  these practices  be stopped.

Lombard read the memorandum  at another Board meeting and  issued

Steeves another warning, but apparently Steeves did not terminate

the  practice.  The various disputes between O'Connor and Steeves

led to increased friction  within the Department.  By  the spring

of 1990,  as all parties concede, the  Department's employees had

divided  into two factions, which communicated poorly, apparently

on unfriendly terms.

2.   The Town Water Crisis
                          

          In  late March  1990,  shortly before  the annual  Town

election, larger events temporarily  distracted the parties  from

the dispute  over Steeves' purchasing practices,  and caused them

to focus instead  on the breakdown  of communications within  the

                                6

Department.  Three consecutive readings of the Town water  supply

revealed  bacterial contamination;  under Massachusetts  law, the

Department was  required to notify  the public and  the Massachu-

setts Department of Environmental Protection ("DEP"), and to take

steps  to safeguard the Town water supply.  O'Connor was notified

of  the contamination  during a  family emergency, and  called on

Steeves  to  take charge  of notifying  the  DEP.   Steeves later

insisted  that  he  promised  O'Connor  no  specific  assistance.

Phillip Applin, a Department employee, testified that although he

provided information  to Steeves at O'Connor's  direction, he did

so with hesitation, "because  Mr. Steeves was not supposed  to be

involved with bothering the Public Works employees."  Applin also

testified  that, as late as  April 6, 1990,  O'Connor and Steeves

obviously had not yet spoken to each other  about whether the DEP

had  been notified.  Apparently  as a result  of the breakdown in

communications between the parties, neither DEP  nor the Town was

notified about the  contamination for several days, and  a number

of Town residents became seriously ill.

          The  perceived mishandling  of the  water contamination

problem  generated considerable public controversy, and became an

important  factor in the April, 1990  elections.  Selectman Jayne

Solomine, who supported O'Connor,  was replaced by Harry Edwards,

a Steeves supporter.   Edwards later stated that  he had been ap-

proached,  prior  to  the  election, by  voters  concerned  about

O'Connor's performance during the Town water  crisis, and that he

viewed his election  as a  mandate to remove  O'Connor as  Super-

                                7

intendent.

D.   O'Connor's Termination
                           

          Following Edwards' election and  the correction of  the

water  contamination  problem,  O'Connor resumed  his  complaints

about  Steeves' unauthorized  purchasing  practices.   In May  or

June, O'Connor  presented the  Board with  another invoice  for a

personal purchase by Steeves on the Department account.  O'Connor

also approached  Edwards, the  new Selectman, seeking  to discuss

Steeves' misuse  of Department accounts.   Edwards appeared unin-

terested.

          At a Board  meeting on May 24,  1990, Lombard moved  to

reappoint O'Connor as Superintendent; Edwards and Steeves blocked

the motion.  On  June 28, 1990, Lombard again moved  to reappoint

O'Connor, but once  again Edwards and  Steeves blocked the  reap-

pointment.  Edwards  then moved to terminate  O'Connor, but with-

drew the  motion without explanation.   On July 12,  1990, O'Con-

nor's termination again came  up for a  Board vote.  Just  before

the  vote, O'Connor  left the  meeting, went  to his  office, and

returned with  a number of Department invoices signed by Steeves,

then proceeded to describe Steeves' improper  conduct to those in

attendance,  stating that he wanted the townspeople to know "what

was really going on in the city hall."1

                    

     1O'Connor  apparently succeeded  in piquing  public interest
about  Steeves'  purchasing  practices.     Following  O'Connor's
termination, the  Essex  County District  Attorney requested  "an
audit of  the Town's  procurement policies, practices  and proce-
dures."   The State Auditor ultimately identified 32 purchases of
goods     totalling  approximately  $2600     by individuals  for

                                8

          Lombard voted against  O'Connor's termination;  Edwards

and Steeves  voted in favor.  Edwards later said he voted to ter-

minate O'Connor because  of the  "mandate" he had  been given  by

voters after the Town water crisis.  Steeves later stated that he

voted  to terminate  O'Connor because  of O'Connor's  alleged in-

volvement  in Solomine's unsuccessful reelection bid, and because

O'Connor allegedly had told a Department employee not to vote for

Edwards during  the April 1990 elections,  which O'Connor denies.

In August, 1990, O'Connor sued, alleging, inter alia, that he had
                                                    

been discharged in retaliation for his political affiliation with

Solomine, and for his accusations against Steeves.2

                                II

                            DISCUSSION
                                      

A.   Political Discharge
                        

          A public  employee may  not be discharged,  demoted, or

disciplined for political activities or beliefs, unless political

affiliation or belief is an appropriate job qualification for the

particular position.  See Rutan v. Republican Party of  Illinois,
                                                                

497 U.S. 62 (1990); Branti v. Finkel,  445 U.S. 507 (1980); Elrod
                                                                 

                    

their own use.   The audit noted  that "the practice of  allowing
individuals to  purchase items through  the town is  improper, if
not illegal,  and holds the town  at risk of paying  for any pur-
chases that are not identified as personal purchases."  The audit
did not  identify the individuals responsible  for these improper
purchases.

     2The  district  court  dismissed  O'Connor's  various  other
claims  under federal and state law on the merits.  O'Connor does
not challenge those dismissals.

                                9

v.  Burns, 427 U.S. 347 (1976).  Assuming, without deciding, that
         

political affiliation  was a  "motivating factor"  for O'Connor's

discharge,  see Mt. Healthy City School Dist. Bd. of Education v.
                                                              

Doyle, 429  U.S. 274,  287 (1977);  see also Acosta-Sepulveda  v.
                                                             

Hernandez-Purcell, 889 F.2d 9, 12-13  (1st Cir. 1989); Rosado  v.
                                                             

Zayas, 813  F.2d 1263 (1st  Cir. 1987),  we affirm  the grant  of
     

summary judgment against O'Connor, since we conclude that politi-

cal affiliation  was an appropriate requirement  for the Superin-

tendent position.

          Although "[t]he difficulties  in determining whether  a

government employee  is  protected from  a politically  motivated

discharge are considerable," Agosto-de-Feliciano v. Aponte-Roque,
                                                                

889 F.2d 1209, 1214 (1st Cir. 1989) (en banc), the  test we apply

is  familiar.  First, we inquire whether the overall functions of
                                                              

the employee's  department or agency involve  "decision making on

issues where there is room for political disagreement on goals or

their implementation," Jimenez Fuentes v.  Torres Gaztambide, 807
                                                            

F.2d 236, 241-42  (1st Cir.  1986) (en banc),  cert. denied,  481
                                                           

U.S. 1014  (1987); see  also Rodriguez-Burgos v.  Electric Energy
                                                                 

Auth., 853 F.2d  31, 35 (1st  Cir. 1988); Goyco  de Maldonado  v.
                                                             

Rivera, 849 F.2d  683, 684-85 (1st Cir. 1988).  Second, we decide
      

whether   the  particular  responsibilities  of  the  plaintiff's
                                           

position, within the department or  agency, resemble those of  "a

policymaker, privy  to confidential information,  a communicator,

or some other  office holder  whose function is  such that  party

affiliation is an equally appropriate requirement" for  continued

                                10

tenure.   Jimenez Fuentes,  807 F.2d at  242.  Among  the indicia
                         

material  to the  second  element are  "'relative pay,  technical

competence, power  to control others,  authority to speak  in the

name  of policymakers, public  perception, influence on programs,

contact with  elected officials, and  responsiveness to  partisan

politics and political leaders.'"  Id. (quoting Ecker v. Cohalan,
                                                                

542 F.Supp. 896, 901  (E.D.N.Y. 1982)); see also  Mendez-Palou v.
                                                              

Rohena-Betancourt, 813  F.2d 1255,  1258-59 (1st Cir.  1987); see
                                                                 

generally  Stott v.  Martin,  783 F.Supp.  970, 976-82  (E.D.N.C.
                           

1992) (collecting  First Circuit  case law following  Jimenez Fu-
                                                                 

entes).
     

          The summary  judgment record establishes  beyond perad-

venture  that the Department "handled matters potentially subject

to  partisan political  differences," Mendez-Palou,  813  F.2d at
                                                  

1258, not  unlike governmental departments in  larger municipali-

ties.  See  Tomczak v. City  of Chicago, 765  F.2d 633, 641  (7th
                                       

Cir. 1985), cert. denied, 474 U.S. 946 (1985) (cautioning against
                        

"unduly  myopic view" of "the  role of politics  in the seemingly

apolitical context of universal provision of services").

          The primary function of any  local government
          entity is the  provision of services such  as
          police and fire  protection, public  schools,
          hospitals, transportation,  and libraries, as
          well as quasi-utility  functions such as  wa-
          ter, garbage, and sewage services.  Elections
          often turn  on the success or  failure of the
          incumbent  to provide these services, and, as
          campaigns  develop,  the  opposing sides  put
          forth varying  proposals  about how  best  to
          provide services.  While the ultimate goal of
          all sides might be the same, there is clearly
          room  for principled disagreement  in the de-
          velopment  and  implementation  of  plans  to

                                11

          achieve that goal.

Id.   Here, the Department's role in the life of the Town plainly
   

parallels the Water Department's role in Tomczak, which repeated-
                                                

ly has been cited  in this circuit as a  benchmark for evaluating

the political responsibilities of  public employment.  See, e.g.,
                                                                

Collazo  Rivera v. Torres Gaztambide, 812 F.2d 258, 260 (1st Cir.
                                    

1987)  (finding administration  of agrarian  reform  programs, by

Puerto  Rico's  Regional  Housing Administration,  "at  least  as

important to partisan  political goals as the  provision of water

discussed in Tomczak"); see also Cordero v. De Jesus-Mendez,  867
                                                           

F.2d  1, 15 (1st Cir.  1989) (finding "no  evidence of comparable

responsibility" between Water Director's position in Tomczak  and
                                                            

plaintiff's  position  as Administrative  Aide  to the  Assistant

Director of Public  Works in  Town of Moca,  Puerto Rico);  Roman
                                                                 

Melendez  v. Inclan, 826 F.2d  130, 133 (1st  Cir. 1987) (finding
                   

duties  of Regional  Manager  in Puerto  Rico's General  Services

Administration  "analogous,  in general  character,"  to  that of

Water Director in  Tomczak).3  It also  offers clear confirmation
                          

                    

     3Like  the  Water  Department  in  Tomczak,  the  Department
                                               
performed  "quasi-utility functions" for  virtually all community
residents, and, therefore, was capable  of attracting significant
public attention  in the context  of a  local election  campaign.
The same  can be  said, of  course, about  many other  public and
municipal  agencies and departments.   Thus, for example, we have
held this  first prong of  the Jimenez Fuentes test  to have been
                                              
met  by  the position  of Regional  Director  of the  Puerto Rico
General Services  Administration,  insofar  as  that  agency  was
responsible  for  determining "the  degree  of  attention [to  be
given] the  physical conditions  of public buildings  . . . which
buildings need immediate or  special care, . . . whether  to give
priorities  to rural or urban schools,"  Roman Melendez, 826 F.2d
                                                       
at  134; the Puerto  Rico Department of  Natural Resources, which
"formulates  and  implements  public  policies  that  potentially

                                12

of  Tomczak's continuing  validity:    by  all accounts,  as  the
           

district court pointed out, the 1990 elections for Town Selectman

turned in large part  on the Department's failure to  assure safe

drinking water to Town residents. 

          Moreover,  whatever  difficulties  we  might   face  in

applying the second prong  of the Jimenez Fuentes test  to subor-
                                                 

dinate positions  within the Department, see,  e.g., Cordero, 867
                                                            

F.2d at  14-15 (finding  political affiliation  inappropriate job

requirement for assistant director of public works), the Superin-
                         

tendent's "inherent responsibilities" under the  Town Charter, as

the person "responsible for the administration of all departments

within  the scope of  his duty," plainly  "'had a bearing  on the

                    

implicate  partisan  interests,"  Monge-Vazquez v.  Rohena-Betan-
                                                                 
court, 813 F.2d 22, 26  (1st Cir. 1987); accord Navas Chabran  v.
                                                             
Santiago Nieves, 666 F.Supp. 16, 18 (D.P.R. 1987); and the Puerto
               
Rico Urban  Development and  Housing Corporation,  which partici-
pates in "the  provision of housing to low and middle income city
residents . . .  a vital  political issue," Jimenez  Fuentes, 807
                                                            
F.2d at 241-44.
     O'Connor challenges any  analogy to Tomczak, asserting  that
                                                
"the duties, size of staff and budget of the First Deputy Commis-
sioner of the Water Department  of Chicago . . . differ material-
ly" from  those of  the Nahant  Superintendent.   It is true,  of
course, that the $4O million operating budget and 1,150 employees
controlled  by the  Water  Department in  Tomczak greatly  exceed
                                                 
O'Connor's  $60,000 departmental budget and fifteen person staff.
But we  think O'Connor's direct comparison,  based exclusively on
departmental  size  and  budget, overlooks  the  equally dramatic
differences in  the populations and municipal  budgets of Chicago
and Nahant.   Chicago's population is  approximately 2.8 million;
Nahant's approximately 4,200.  Chicago's annual budget is approx-
imately $3.2 billion; Nahant's approximately  $4 million.  We  do
not think governmental provision  of essential public services is
any  the less  prone  to politicization  in smaller  communities;
municipal services  are as essential to  the few as to  the many.
In light of the broader scope of the public services it provides,
we  think the  role of the  Department in  the political  life of
Nahant  is at least comparable to that of the Water Department in
                   
Chicago.  Cf. Cordero, 867 F.2d at 15.
                     

                                13

partisan  goals  and policies'"  of  the Department  as  a whole.

Rodriguez-Burgos, 853 F.2d at  35 (quoting Mendez-Palou, 813 F.2d
                                                       

at  1263).   O'Connor  protests that,  in practice,  his position

involved  little managerial  responsibility, and  he was  in fact

"essentially  a working foreman."  As we have held, however, "the

actual past duties of  the discharged employee are irrelevant  if
      

the  position inherently  encompasses more  expansive  powers and
                        

more  important functions that  would tend to  make political af-

filiation an appropriate  requirement for effective performance."

Mendez-Palou, 813  F.2d at  1258 (emphasis added).   Accordingly,
            

absent ambiguity  in the  official job description,  the analysis

must  focus upon  the  "powers inherent  in  a given  office,  as

opposed to the  functions performed by  a particular occupant  of

that office."  Jimenez Fuentes, 807 F.2d at  242; see also, e.g.,
                                                                

Batistini v.  Aquino, 890 F.2d 535 (1st Cir. 1989); Mendez-Palou,
                                                                

813 F.2d at 1258; cf. Stott, 783 F.Supp. at 976  n.6 (noting that
                           

the Jimenez Fuentes court "did review plaintiffs' testimony about
                   

their actual duties," and concluding  that "such testimony may be

useful in filling gaps  left by the official job  description and

in  amplifying  the responsibilities  listed  in the  description

. . . [though not] to belittle the job into one with less signif-

icant responsibilities").

          The  district court  carefully,  and  in great  detail,

analyzed the job description  for the position of Superintendent,

and its  unchallenged findings    that  seventeen of twenty-three

listed  duties  are  "policymaking,"  "representative,"  or "per-

                                14

sonnel" functions    comport with our "common sense judgment"  on

the  matter.   See  Jimenez Fuentes,  807 F.2d  at  242.   As the
                                   

district  court correctly  determined  that O'Connor's  political

affiliation was an appropriate criterion for the position that he

held,  we affirm its grant  of summary judgment  on the political

discharge claim.

B.   "Whistleblowing" Claim
                           

          O'Connor's  alternative claim  presents a  closer ques-

tion.   Essentially,  O'Connor  contends that  he was  discharged

because he disclosed Steeves'  unauthorized use of the Department

account; that these disclosures  dealt with a matter  of signifi-

cant  public concern; and that his First Amendment right to speak

out  on  the subject     against  the  interests of  Steeves, his

elected  superior    outweighed  the Town's demonstrated interest

in protecting  Department operations from  any resulting  disrup-

tions and inefficiencies.   We agree, and since we are  unable to

conclude, on the present  record, that O'Connor's discharge could
                                                                 

not  have resulted from his  protected speech (as  opposed to his
   

unprotected speech, or his job performance as Superintendent), we

must vacate the grant of summary judgment for the Town and remand

to the district court for further proceedings.

1.   Legal Standard and Standard of Review
                                          

          A government employee retains the First Amendment right

to speak out, as a citizen, on matters of public concern, so long

as  the employee's speech does not unduly impede the government's

                                15

interest, as employer, in the efficient performance of the public

service it delivers through its employees.  Pickering v. Board of
                                                                 

Educ.,  391 U.S. 563, 568  (1968); see also  Rankin v. McPherson,
                                                                

483  U.S.  378 (1987);  Connick v.  Myers,  461 U.S.  138 (1983);
                                         

Brasslett v.  Cota, 761 F.2d  827 (1st  Cir. 1985).   Three tests
                  

determine whether the court is presented with an actionable claim

for  the  infringement of  a  public  employee's First  Amendment

rights.

          First, the court  must determine, on the  basis of "the
               

content, form, and context  of a given statement, as  revealed by

the  whole  record," whether  the  employee  was speaking  "as  a

citizen upon  matters of public concern,"  or, alternatively, "as

an employee upon  matters only of  personal interest."   Connick,
                                                                

461  U.S. at 147-48.   If an employee's  speech "cannot be fairly

characterized  as  constituting  speech  on a  matter  of  public

concern,"  then its First Amendment  value is low  and "a federal

court is not the appropriate forum in which to  review the wisdom

of a personnel decision" arising therefrom.  Id. at 146-47.
                                                

          Second,  if the employee did  speak out on  a matter of
                

public  concern,  the court  must  balance  the strength  of  the

employee's  First  Amendment  interest, and  any  parallel public

interest in the  information which the employee sought to impart,

against the strength of  the countervailing governmental interest

in  promoting efficient  performance  of the  public service  the

government agency  or entity must provide  through its employees.

Pickering, 391 U.S. at  568; Brasslett, 761 F.2d at  839.  Though
                                      

                                16

often imprecise,

          [t]his balancing  is  necessary in  order  to
          accommodate  the  dual  role  of  the  public
          employer as a provider of public services and
          as  a government  entity operating  under the
          constraints  of the First  Amendment.  On the
          one  hand,  public  employers are  employers,
                                                      
          concerned  with  the  efficient  function  of
          their operations; review  of every  personnel
          decision  made by a public employer could, in
          the long run, hamper the  performance of pub-
          lic  functions.   On  the  other  hand,  "the
          threat of dismissal from public employment is
          . . .  a potent means  of inhibiting speech."
          Vigilance  is necessary to ensure that public
          employers do not use authority over employees
          to silence discourse, not because  it hampers
          public functions but simply because superiors
          disagree  with  the  content   of  employees'
          speech.

Rankin, 483  U.S. at 384  (citations omitted; emphasis  in origi-
      

nal).   As  the Connick  and Pickering  determinations  depend on
                                      

whether  the employee statements  "are of  a character  which the

principles of  the First  Amendment . . . protect,"  Connick, 461
                                                            

U.S. at 150 n.10,  these determinations are always subject  to de
                                                                 

novo review.   Id.; see  also Rankin, 483 U.S.  at 385-86; Brass-
                                                                 

lett,  761 F.2d  at 835;  see generally  Bose Corp.  v. Consumers
                                                                 

Union of United States, Inc., 466 U.S. 485, 499 (1984) ("in cases
                            

raising First  Amendment issues we  have repeatedly held  that an

appellate court has an obligation to 'make an  independent exami-

nation  of  the whole  record' in  order to  make sure  that 'the

judgment does not constitute a  forbidden intrusion on the  field

of free speech'") (citations omitted).

          Third, and  finally, if  the court determines  that the
               

public  employee's  First  Amendment  interests  in  speaking out

                                17

outweigh  a  legitimate  governmental  interest  in  curbing  the

employee speech,  the plaintiff-employee must show  that the pro-

tected  expression was a substantial or  motivating factor in the

adverse  employment decision;  and, if  the plaintiff  meets this

test,  the  defendant governmental  entity  must  be afforded  an

opportunity to show "by a preponderance of the evidence that [it]

would have reached the same decision . . . even in the absence of

the protected conduct."   Mt. Healthy, 429 U.S. at  287; see also
                                                                 

Duffy v. Sarault, 892 F.2d 139  (1st Cir. 1989).  This third test
                

implicates questions of fact; "clear error" review is appropriate

where  judgment  was entered  after a  trial  on the  merits, see
                                                                 

Duffy,  892 F.2d at 144-45, whereas plenary review applies at the
     

summary judgment stage.  See Mesnick, 950 F.2d at 822.
                                    

2.  Threshold Inquiry: "Matters of Public Concern"
                                                 

          The courts  of appeals have  adopted various approaches

for  determining whether a topic of employee speech is of "public

concern," under the "threshold  inquiry" required by Connick, 461
                                                            

U.S. at 146.   See, e.g., D. Gordon  Smith, Note, "Beyond  Public
                                                                 

Concern:   New Free Speech Standards for Public Employees," 57 U.
                                                         

Chi.  L.  Rev. 249,  258-61 (1990)  (surveying  case law).   Some

courts have adopted a content-based analysis, focusing exclusive-

ly  on "'which information is needed or appropriate to enable the

members of  society' to make informed decisions  about the opera-

tion of their  government," McKinley  v. City of  Eloy, 705  F.2d
                                                      

1110, 1113-14 (9th Cir. 1983) (quoting Thornhill v.  Alabama, 310
                                                            

U.S.  88, 102 (1946)), in  effect providing per  se protection to
                                                   

                                18

public-employee  speech on  certain topics  of "inherent"  public

interest, such as official  malfeasance or abuse of office.   See
                                                                 

Koch v. City of Hutchinson, 847 F.2d 1436,  1446 n.17 (10th Cir.)
                          

(en  banc), cert. denied, 488 U.S. 909 (1988).  Other courts have
                        

adopted an analysis which turns either entirely or in part on the

employee's subjective  intent, i.e.,  on  whether the  employee's
                                   

speech  "was calculated to    disclose misconduct"  or to inspire
                       

public  debate  on some  issue  of  significant public  interest.

Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988) (emphasis in
                

original); see also Callaway  v. Hafeman, 832 F.2d 414,  417 (7th
                                        

Cir.  1987) ("while the  content of  [plaintiff's] communications

touched  upon an  issue of  public concern  generally. . . . such

speech stands unprotected from  employer scrutiny when uttered in

the pursuit of purely  private interests"); Terrell v. University
                                                                 

of  Texas System  Police, 792  F.2d 1360,  1362 (5th  Cir. 1986),
                        

cert. denied, 479 U.S. 1064 (1987) ("the mere fact that the topic
            

of the  employee's speech was  one in which  the public  might or

would have had a great interest is of little moment"); Linhart v.
                                                              

Glatfelter,  771 F.2d  1004, 1010 (7th  Cir. 1985)  (Connick "re-
                                                            

quires us to look at the point of the speech in question:  was it
                              

the employee's point to bring wrongdoing  to light?  Or to  raise

other issues  of  public  concern, because  they  are  of  public

concern?  Or was the point to further some purely private  inter-

est?").4

                    

     4We identify  these approaches,  somewhat inexactly,  as the
"contextual" and "content-based" approaches to  Connick's thresh-
                                                       
old  test for  determining the  level of  First  Amendment speech

                                19

          As our own case  law implicitly recognizes, the circum-

stances of a particular case  may govern the appropriate approach

under  Connick.  Where  a public employee  speaks out  on a topic
              

which is clearly a  legitimate matter of inherent concern  to the
                                                 

electorate, the court may eschew further inquiry into the employ-

ee's motives as revealed by the "form and context" of the expres-

sion.  See, e.g., Brasslett,  761 F.2d at 844 n.14  (according no
                           

apparent  consideration  to  public  employee's  personal motive,

where fire  chief's public  commentary on available  fire protec-

tion, and on  Town Council's actions  in dealing with  associated

problems,  plainly  qualified  as  matters  of  inherent  "public

concern").   On the other hand, public-employee speech on a topic

which  would not necessarily qualify, on the basis of its content
                                                                 

alone,  as a matter  of inherent  public concern  (e.g., internal
                                                       

working conditions,  affecting only the speaker  and co-workers),

may  require a more complete  Connick analysis into  the form and
                                     

context of  the public-employee  expression, "as revealed  by the

whole record," Connick, 461 U.S.  at 146, with a view  to whether
                      

                    

protection.   Under  the "content-based" approach,  the objective
content  of an  employee's  statement is  determinative, and  the
"form  and context" of the  statement are examined  only in close
cases,  to determine whether the  content of the  statement is of
                                         
"public  concern."   Under the  "contextual" approach,  the three
factors  are  considered  seriatim.   A  determination  that  the
                                  
content of the expression addresses a "matter of public concern,"
       
while  often  described as  "the  greatest single  factor  in the
Connick  inquiry," Breuer v. Hart,  909 F.2d 1035,  1039 (7th Cir
                                 
1990) (quoting Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th
                                       
Cir. 1988)), does not  end the inquiry; in  certain circumstances
the employee may still  be disciplined if the "form  and context"
of the speech  indicate that  the employee was  driven by  purely
personal concerns.

                                20

the  community has in fact manifested a legitimate concern in the
                          

internal  workings  of the  particular  agency  or department  of

government,  and, if  so,  whether the  "form" of  the employee's

expression suggests a subjective intent to contribute to any such

public discourse.  See, e.g., Alinovi v. Worcester School Commit-
                                                                 

tee, 777  F.2d 776, 787  (1st Cir. 1985), cert.  denied, 479 U.S.
                                                       

816  (1986)  (letters of  reprimand issued  to teacher  by school

administration  did not  implicate an  issue of  "public concern"

under  Connick,  despite  tangential connection  to  an  incident
              

implicating  the  teacher's Fourth  Amendment rights;  "when [the

teacher]  posted the letters . . . she was not concerned with any
                                                             

possible violation  of her  Fourth Amendment rights,  but rather,

with [a] purely personal  issue concerning the lack of  action on

the part  of the administration regarding  her disciplinary prob-

lem")  (emphasis  added).   Since  "almost  anything that  occurs

within  a public  agency  could be  of  concern to  the  public,"
                               

Terrell,  792 F.2d at 1362 (emphasis in original), a full-fledged
       

"form and  context" analysis  is appropriate in  these instances.

"To presume that all matters which transpire within a  government

office  are of  public concern  would mean  that virtually  every

remark     and  certainly  every criticism  directed at  a public

official    would plant the seed of  a constitutional case".  See
                                                                 

Connick, 461 U.S. at 149.5  
       

                    

     5The circumstances presented in Connick itself required both
                                            
forms  of  analysis.    There, an  assistant  district  attorney,
opposing her  transfer to another department,  circulated a ques-
tionnaire "concerning office transfer policy, office morale,  the
need for a grievance committee, the level of confidence in super-

                                21

          In  our  own  case,  O'Connor's  allegations  were  not

limited to internal personnel  procedures, affecting only himself

and other Department  employees.  Rather, O'Connor's  revelations

                    

visors, and whether employees felt pressured to work in political
campaigns."  461 U.S.  at 141.  Analyzing the "content,  form and
context" of  the employee's  statements, the Supreme  Court noted
that  the employee "did  not seek to  inform the public  that the
District Attorney's office was  not discharging its  governmental
responsibilities  . . . [or] seek  to  bring to  light actual  or
potential  wrongdoing or breach of  trust on the  part of [public
officials]."  Id. at 148.  However, it held, that  the content of
                                                                 
one question did touch upon a "matter of interest to the communi-
                                                                 
ty," i.e., whether assistant district attorneys were pressured to
         
work  in political campaigns.  The Court then proceeded to evalu-
ate that  question separately, under the  second "balancing" step
in the Pickering  analysis.  See  id. at  149-154.  The  separate
                                     
treatment  given the one item of "inherent public concern" on the
employee  questionnaire is  consistent  with our  exempting  such
clear  First  Amendment  speech  from  the  full-scale  threshold
inquiry into  the employee's  motives in speaking,  undertaken in
Connick in relation to the other items on the questionnaire.  See
                                                                 
Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir.) ("[w]ere motivation
                  
rather  than content  dispositive [in  Connick], the  Court would
                                              
have had no reason to isolate the one question that was of public
concern"), cert. denied, 488 U.S. 899 (1988).
                       
          Rankin v.  McPherson, supra, is the  only other Supreme
                                     
Court case  to consider, in  depth, the application  of Connick's
                                                               
threshold test.   Rankin  concerned a law  enforcement employee's
                        
private  comment to a co-worker,  in the aftermath  of the assas-
sination attempt against President  Reagan:  "if they go  for him
again, I hope  they get him."  483 U.S. at  381.  The Court found
that the statement, in  context, "plainly dealt with a  matter of
                               
public concern,"  insofar  as it  "came on  the heels  of a  news
bulletin  regarding  what is  certainly  a  matter of  heightened
public attention:  an attempt on the life of the President."  Id.
                                                                
at 386 (emphasis  added).  The Court paid little attention to the
"form  and context"  of McPherson's  statement, insofar  as those
factors  bore on her motives  for speaking; indeed,  if the Court
                            
had  done so,  it probably  would have  found that  the statement
(which apparently  occurred without  premeditation, in  a private
conversation between  co-workers) was  motivated by little  or no
civic concern to inform the public on any relevant issue.  Rankin
                                                                 
suggests  that the  courts  are to  proceed  to the  second-stage
Pickering  inquiry  whenever public-employee  speech, objectively
         
viewed in  the context of  a broader public  discourse, addresses
(with  reasonable  specificity)  an  issue  or  topic implicating
                                                     
"core" First Amendment concerns.

                                22

directly implicated a topic of inherent concern to the  community

   official misconduct  by an incumbent elected  official.  Given

their direct bearing on Steeves' fitness for elective  office, we

think   O'Connor's  allegations  of  improper  purchases  clearly

constituted a matter of  legitimate public concern, obviating the

need for a threshold analysis of his dominant motive for speaking

out  on these issues.6  Accordingly, we reject the Town's conten-

tions, based on the "form and context" of O'Connor's speech, that

O'Connor's personal motives should result  in the denial of First

Amendment protection  at the threshold.  Cf.  Pickering, 391 U.S.
                                                       

at 572 (recognizing  that government employees "are,  as a class,

the  members  of a  community most  likely  to have  informed and

                    

     6The district  court noted that the  summary judgment record
included only  five Department invoices signed  by Steeves during
the  entire period in  question, representing cumulative personal
purchases amounting to approximately $500, on which a total state
sales tax approximating  $20-25 would  have been due.   Based  on
these small sums,  and the  fact that Steeves  repaid the  monies
expended by the Department,  the district court considered Steev-
es'  alleged  misconduct de  minimis.    Given  their bearing  on
                                    
Steeves' fitness  for elective  office, these improper  purchases
clearly pertained  to a matter  of legitimate public  interest to
the community.  If their  infrequency, modest amount, and  repay-
ment  tempered their  seriousness as  a reflection  upon Steeves'
suitability for elective office, that was a matter for the Nahant
electorate.  See, e.g., Patrick v. Miller, 953 F.2d 1240, 1247-48
                                         
(10th  Cir.  1992) (perceived  illegalities  in  City's budgeting
activities  constituted  topic   of  "inherent"  public  concern;
"'[s]peech which discloses any evidence of  corruption, impropri-
ety or other malfeasance on the part  of city officials, in terms
of content, clearly concerns  matter of public import'") (quoting
Conaway v. Smith, 853 F.2d 789, 796) (10th Cir. 1988)); Breuer v.
                                                              
Hart,  909  F.2d 1035,  1038  (7th Cir.  1990)  (County Sheriff's
    
alleged  conversion of  County  property was  "plainly of  public
concern in  its substance"); Brawner  v. City of  Richardson, 855
                                                            
F.2d  187, 191-92  (5th Cir.  1988) (Police  Department's alleged
misconduct in  covering up internal investigations  was "a matter
of public interest and therefore deserves constitutional  protec-
tion").

                                23

definite opinions" about allocation of funds).

3.   The Pickering Scale
                        

          As the content of  O'Connor's allegations was of inher-

ent "public concern" for First  Amendment purposes, we proceed to

the second test.  Under Pickering, we are required to balance the
                                 

significance  of  the  interests  served by  the  public-employee

speech     including the  employee's interests  in communicating,

and the interests  of the community in receiving, information "on

matters of public importance"    against the governmental employ-

er's legitimate  interests in preventing  unnecessary disruptions

and inefficiencies  in carrying  out its public  service mission.

391 U.S. at 568-575.  

          We  note  at the  outset  that  O'Connor's motives  for

speaking out are properly weighed in the balance under Pickering.
                                                                

See, e.g., Versarge v.  Township of Clinton, 984 F.2d  1359, 1366
                                           

(3d Cir.  1993) (according  "little weight," under  Pickering, to
                                                             

plaintiff's  "vengeful and  obstructionist interests  in speaking

out on issue of public concern").  Thus, insofar as self-interest

is found to have motivated public-employee speech, the employee's

expression is entitled  to less weight  in the Pickering  balance
                                                        

than  speech on matters of  public concern intended  to serve the

public  interest.  Id.   Furthermore, we agree  with the district
                      

court  that O'Connor's motives, prominently including the evident

self-interest in  preserving his position as Superintendent, were

less than altruistic.  

          Nevertheless,  the  legitimate interest  of  the Town's

                                24

electorate  in  the type  of  information  disclosed by  O'Connor

represents  a public  benefit  entitled to  great  weight in  the

Pickering balance.  Id. (citing O'Donnell v. Yanchulis,  875 F.2d
                                                      

1059,  1061 (3d Cir. 1989)) ("On plaintiff's side of the balance,

we  must also consider the interests of the public in plaintiff's

speech").    O'Connor's disclosures  concerned  alleged abuse  of

public  office on  the  part of  an  elected official,  a  matter

traditionally  occupying "the  highest rung  of the  hierarchy of

First Amendment values."  Connick, 461 U.S. at 145.7   The strong
                                 

public interest in such disclosures  supplements O'Connor's rela-
      

tively slight personal interest  in speaking out, heavily weight-
                      

ing the  Pickering scale in  favor of First  Amendment protection
                  

against retaliation for O'Connor's speech.8

          On  the other side of the Pickering scale, the Town has
                                             

yet  to  demonstrate its  legitimate  interest,  as employer,  in
                    

                    

     7See also,  e.g., Vasbinder v.  Ambach, 926 F.2d  1333, 1339
                                           
(2d Cir. 1991) (public  employee's Pickering interest is particu-
                                            
larly  great where  speech  involves charges  of "fraudulent  and
corrupt practices"  or other "unlawful conduct"  by elected offi-
cial); but cf. Breuer,  909 F.2d at 1041 (upholding  dismissal of
                     
deputy  sheriff for  "whistleblowing"  on corruption  by sheriff,
based on  county's "particularly  urgent need for  close teamwork
among those involved in  the 'high stakes' field of  law enforce-
ment") (citation omitted).

     8It is  also  relevant that  O'Connor's factual  allegations
about Steeves' purchasing practices are essentially undisputed by
the  defendants.  We are not faced with  a case in which a public
employee has intentionally disseminated  false information.  Both
sides of the Pickering balance might be significantly affected in
                      
such circumstances.  See Brasslett, 761 F.2d at 839 ("an employer
                                  
has a  greater interest  in curtailing erroneous  statements than
correct ones, and still a greater interest in curtailing deliber-
ate falsehoods  . . . .  Correspondingly, an  employee's interest
in  making public  statements  is heightened  according to  their
veracity.").

                                25

curtailing the  specific disclosures which O'Connor  alleges were

the basis for his  termination.  Although the Town has shown con-

siderable disruption in  the Department  operations, and  serious

deterioration  in  the  working  relations  between O'Connor  and

Steeves,  and their respective factions,  it has not  yet met its

burden  of showing  that the  disruption was attributable  to the

exercise of O'Connor's First Amendment right to speak out on this

subject,  so  as to  warrant  discharging  him on  speech-related

grounds.   On  the  contrary, the  disruption  which occurred  in

Department operations  may as readily be  attributed to unrelated

factors:  for example,  to Steeves' allegedly unauthorized inter-

ference in  the Department operations.   See, e.g.,  Zamboni, 847
                                                            

F.2d  at 79 ("in evaluating the disruption, if any, that resulted

from [plaintiff's]  criticisms  . .  .  the district  court  must

consider whether  any unrest was  caused directly by  [the plain-

tiff's]  speech  or whether  it  was  exacerbated by  defendants'

actions").  Notwithstanding O'Connor's status  as a "policymaking

or  confidential  employee," see  Kinsey  v.  Salado Indep.  Sch.
                                                                 

Dist., 950 F.2d 988, 995 (5th Cir. 1992), whose position required
     

close working  relations with  the Board of  Selectmen, including

Steeves,  we cannot  assume, absent  some showing  by defendants,

that  the erosion of their working relationship was due to O'Con-

nor's  protected  speech.    See Brasslett,  761  F.2d  at 845-46
                                          

("defendants must show  that . . .  [plaintiff's] allegedly  pro-
                                                                 

tected activity  had a  detrimental impact on"  working relation-
               

ships) (emphasis added);  see also Versarge, 984 F.2d  at 1367-68
                                           

                                26

(declining to consider disruptive effects of speech that was  not

alleged by defendants as grounds for plaintiff's expulsion).
       

          One  final point  warrants  mention.   As the  district

court  properly noted,  O'Connor failed  on several  occasions to

publicize his allegations of  Steeves' misconduct directly to the
                                                          

community;  instead, he  chose to  direct his disclosures  to the

Board of Selectmen.9  Nevertheless, the  decision to disclose his

allegations to the Board, rather than the community at large, did

not  eliminate O'Connor's  First Amendment  interest in  speaking

out.  See, e.g., Givhan v.  Western Line Consol. Sch. Dist.,  439
                                                           

U.S. 410,  415-16 (1979) (employee retains  personal First Amend-

ment  right to  comment  on issues  of  public concern,  even  if

comments are made in private; "[n]either the Amendment itself nor

our decisions indicate that [the  right to speak out is] lost  to

the public  employee who  arranges to communicate  privately with

his employer rather than to spread his views before the public");

see  also Rankin, 483 U.S.  at 378 (private  comment to co-worker
                

held protected  under Pickering balance).   Moreover, in addition
                               

to controlling  O'Connor's employment, the Board  of Selectmen is

the Town's highest  elective body, with  representative responsi-

bility for  acting in  the best  interests of  the  Town and  its

citizenry.   Hence,  O'Connor's  decision to  address the  Board,

                    

     9Although  O'Connor raised  allegations against  Steeves' at
several "public meetings" prior to  July 1990, the district court
noted  that few,  if any,  members of  the public  attended these
meetings.  O'Connor also published several internal memoranda, on
Department stationery, discussing misuse of  Department accounts,
but the memoranda did not mention Steeves.  

                                27

rather  than the community at large, was no mere private communi-

cation,  nor did it in  any sense extinguish  the inherent public

interest  in  his disclosures  of Steeves'  alleged misconduct.10

Everything  considered, and viewing the  record in the light most

favorable  to O'Connor, we are unable to conclude that the Town's

interest in suppressing  O'Connor's speech outweighed  the impor-

tance  of the  legitimate public  interest in  O'Connor's disclo-

sures.11

                    

     10Indeed,  a  public employee,  whose  disclosures have  the
potential to disrupt the employing agency or department, may  act
responsibly by  taking steps  to minimize disruption  by limiting
dissemination to the public authorities most  directly concerned.
See Rankin, 483 U.S. at 389 (noting that employee "had [not] dis-
          
credited the  office by making  her statement  in public,"  where
offensive remark  "was evidently  made in a  private conversation
with another  employee"); Hubbard  v. E.P.A.,  949 F.2d 453,  458
                                            
(D.C.  Cir. 1991)  ("This case  does not  present a  situation in
which a government employee  has jeopardized an employer's opera-
tion by  calling a  press conference or  indiscriminately leaking
sensitive  information");  Breuer,  909  F.2d  at  1042  (finding
                                 
employee's statements on official corruption unprotected, despite
the fact that the employee "may have genuinely hoped to force the
sheriff to make changes  for the ultimate benefit of  the Depart-
ment,"  because  the  employee's  "method . . .  was  to  immerse
himself  in  an  intra-departmental contest  with  the sheriff");
Conaway,  853 F.2d at 798  ("[t]he relatively low  key context in
       
which [the  public employee]  voiced his complaints  further per-
suades us that the Pickering balance tilts in his favor").
                            

     11As  the  district  court  determined,  however, O'Connor's
claims against the Selectmen  must be dismissed on the  ground of
qualified  immunity.   Harlow  v. Fitzgerald,  457 U.S.  800, 818
                                            
(1982).   "Because Pickering's  constitutional rule turns  upon a
                            
fact-intensive  balancing  test,  it  can  rarely  be  considered
'clearly  established'  for  purposes  of  the  Harlow  qualified
                                                      
immunity  standard," at  least where  substantial disruption  has
been shown  to exist as a  basis for the discharge.   Bartlett v.
                                                              
Fisher, 972  F.2d 911, 916-17 (8th Cir. 1992) (collecting cases).
      
See also  Frazier v. Bailey,  957 F.2d  920, 931 (1st  Cir. 1992)
                           
("if  the existence of  a right  or the  degree of  protection it
warrants  in a particular context is subject to a balancing test,
the  right can  rarely  be considered  'clearly established,'  at
least in the  absence of closely  corresponding factual or  legal

                                28

5.   Causation
              

          The Town  may have  reserved its strongest  defense for

the next round.   On the  record before us,  O'Connor would  have

grave difficulty  demonstrating that  the protected speech  was a

"substantial or motivating" factor in his discharge by the  Town.

Mt.  Healthy,  429 U.S.  at 27412.    O'Connor's alleged  lack of
            

qualifications for  the Superintendent's position,  combined with

the  public concern  over the  Town water  crisis, may  well have

provided neutral,  non-speech related  reasons  for Edwards'  and

Steeves' votes against O'Connor's retention.  Unless O'Connor can

present evidence  demonstrating that the discharge  was motivated

by his protected speech, the Town may yet be entitled to judgment

                    

precedent").

     12The  purpose of the Mt. Healthy test is to ensure that the
                                      
employee is not placed

          in a better position as a result of the exer-
          cise  of  constitutionally protected  conduct
          than  he would  have  occupied  had  he  done
          nothing . . . . A borderline or marginal can-
          didate  should not have  the employment ques-
          tion  resolved against him because of consti-
          tutionally protected conduct.   But that same
          candidate ought not  to be able,  by engaging
          in such conduct, to prevent his employer from
          assessing his performance record and reaching
          a decision not to rehire on the basis of that
          record, simply because the  protected conduct
          makes the  employer more certain  of the cor-
          rectness of its decision.

429 U.S.  at 285-86.  Here, O'Connor's last-minute public revela-
tion  of Steeves'  purchasing  practices, at  the  July 10  Board
meeting, suggests the precise  situation which Mt. Healthy sought
                                                          
to avoid:   an effort  by O'Connor (when  his discharge  appeared
inevitable)  to place himself "in  a better position"  to raise a
later constitutional challenge to his discharge.  

                                29

under the  Mt. Healthy test.   We are not  in a position  to make
                      

this  determination, however,  as the  Town assumed,  for summary

judgment purposes, a causal link between the protected speech and

O'Connor's subsequent discharge.

                               III

                            CONCLUSION
                                      

          As  political affiliation  was an  appropriate qualifi-

cation  for the Superintendent  position, we affirm  the grant of

summary judgment  for the Town on  O'Connor's political discharge

claim.  The judgment dismissing all claims against the individual

defendants  on  the grounds  of  qualified  immunity is  likewise

affirmed.   Finally,  we vacate  the summary  judgment dismissing

O'Connor's  "whistleblowing" claim against  the Town,  and remand

for further proceedings consistent with this opinion.

          The judgment of the district court is affirmed in part,
                                                                 

vacated in part, and the case is remanded for further proceedings
                                                                 

consistent herewith.  Costs are awarded to  the individual defen-
                                                                 

dants.  The appellee Town and appellant O'Connor shall bear their
                                                                 

own costs. 
own costs.
         

                                30
