
USCA1 Opinion

	




                            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 &             _______________             ____________      ___________________        Eschelbacher were on brief for appellant.        ____________             John  Foskett  with  whom  Deutsch,  Williams,  Brooks, DeRensis,             _____________              ______________________________________        Holland & Drachman, P.C., Nancy Merrick, Merrick & Louison, Charles H.        ________________________  _____________  _________________  __________        Riley, Jr. and Ganz, Ham & 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                                          I                                      BACKGROUND                                      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          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          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          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          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          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                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Political Discharge          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          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          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"          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          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          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                                         III                                      CONCLUSION                                      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,                    The judgment of the district court is affirmed in part,                    _______________________________________________________          vacated in part, and the case is remanded for further proceedings          vacated in part, and the case is remanded for further proceedings          _________________________________________________________________          consistent herewith.  Costs are awarded to  the individual defen-          consistent herewith.  Costs are awarded to  the individual defen-          ___________________   ___________________________________________          dants.  The appellee Town and appellant O'Connor shall bear their          dants.  The appellee Town and appellant O'Connor shall bear their          _____   _________________________________________________________          own costs.           own costs.          _________                                          30
