       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0156P (6th Cir.)
                File Name: 00a0156p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                  ;
                                   
GABE CANARY,
                                   
         Plaintiff-Appellee,
                                   
                                   
                                      No. 98-4218
           v.
                                   
                                    >
H. GARRY OSBORN, BOARD             
                                   
                                   
OF EDUCATION, PORTSMOUTH

                   Defendants, 
CITY SCHOOL DISTRICT,
                                   
                                   
OTTO F. APEL, III, PHYLLIS         
                                   
STEVE STURGILL, WALTER R. 
FULLER, ROBERT STEVENS,

                                   
       Defendants-Appellants. 
HICKMAN, JR.,
                                   
                                  1
      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.
       Nos. 95-00944; 96-00253—Susan J. Dlott,
                     District Judge.
                Argued: March 8, 2000
            Decided and Filed: May 3, 2000
 Before: WELLFORD, SILER, and GILMAN, Circuit
                   Judges.

                            1
2     Canary v. Osborn, et al.                     No. 98-4218      No. 98-4218                   Canary v. Osborn, et al.    15

                    _________________                               that job’s duties to a new employee to perform.” In re Appeal
                                                                    of Woods, 455 N.E.2d 13, 15 (Ohio Ct. App. 1982).
                         COUNSEL
                                                                                       III. CONCLUSION
ARGUED: Bernard W. Wharton, McCASLIN, IMBUS &
McCASLIN, Cincinnati, Ohio, for Appellants. David G.                  For all of the reasons set forth above, the Board members
Torchia, TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio,                 failed to carry their burden of establishing that they were
for Appellee. ON BRIEF: Bernard W. Wharton, R. Gary                 entitled to summary judgment on their claim of legislative
Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati,                    immunity. We therefore AFFIRM the judgment of the
Ohio, for Appellants. David G. Torchia, TOBIAS, KRAUS               district court and REMAND the case for further proceedings
& TORCHIA, Cincinnati, Ohio, for Appellee.                          not inconsistent with this opinion.
                    _________________
                        OPINION
                    _________________
   RONALD LEE GILMAN, Circuit Judge. The sole issue in
this interlocutory appeal is whether the individual members of
the Portsmouth (Ohio) City School District Board of
Education are entitled to absolute legislative immunity under
Bogan v. Scott-Harris, 523 U.S. 44 (1998), for their role in
voting against the renewal of Gabe Canary’s contract as an
assistant principal. Among other grounds, Canary brought
suit under 42 U.S.C. § 1983 on the basis that the defendants
violated his constitutional rights when they demoted him in
alleged retaliation for his “blowing the whistle” on a
suspected cheating scheme involving student achievement
tests. The defendants appeal the district court’s denial of their
motion for summary judgment, which was based on an
assertion of absolute legislative immunity. For the reasons set
forth below, we AFFIRM the judgment of the district court
and REMAND the case for further proceedings not
inconsistent with this opinion.
                    I. BACKGROUND
A. Factual background
  Canary was hired by the Board in 1985 to serve as an
assistant principal. He worked at the McKinley Middle
14   Canary v. Osborn, et al.                     No. 98-4218      No. 98-4218                    Canary v. Osborn, et al.        3

    Second, the resolution did not “involve the termination of     School and at the Portsmouth East High School during the
a position.” There is no indication in the minutes of the          1992-1993 and 1993-1994 school years, respectively. In
meeting that Canary’s contract was not renewed because the         addition to McKinley and Portsmouth East, the School
Board no longer needed or wanted an assistant principal at         District includes the Harding and Wilson elementary schools.
Portsmouth East. The defendants argue in their appeal that         At all times relevant to this case, the Board consisted of Otto
their action was legislative because they “eliminat[ed] all        F. Apel, III, Phyllis Fuller, Walter R. Hickman, Jr., Robert
assistant principal positions within the . . . School District     Stevens, and Steve Sturgill. H. Garry Osborn served as the
. . . .” This argument, however, is questionable in light of the   Superintendent of the School District.
record of the meeting itself.                         In the
“appointment[s]/reappointment[s]” section, the minutes               In November of 1992, while working as the Assistant
reflect that two individuals, Michael Flaig and John               Principal of McKinley, Canary attended a district-wide
Hendricks, were either appointed or reappointed to serve as        meeting of various Portsmouth administrators. Among those
“assistant principals” in the School District for the coming       in attendance were Wanda Kinker, the Principal of Harding,
school year.                                                       and Mike Welton, who at the time was the Principal of
                                                                   McKinley and Canary’s immediate superior. During this
  Finally, unlike in Bogan, the record reflects that the alleged   meeting, the administrators discussed ideas for increasing the
action in this case did not have “prospective implications that    students’ achievement test scores. In an affidavit filed with
reach[ed] well beyond the particular occupant of the office.”      the district court, Canary asserts that the following exchange
Shortly after Canary’s contract expired, the Board created a       took place:
new “student facilitator” position at Portsmouth East and
hired someone other than Canary to fill it. Cf. Rateree, 852         Kinker stated that she would be coming to the schools in
F.2d at 950 (noting, in support of a finding that certain budget     the district and [would be] exhibiting actual tests and
cuts were indeed legislative in nature, that “the plaintiffs’        answers to the principals for review. She said principals
positions were eliminated altogether and no one was hired to         would be allowed to copy the questions by hand, and
replace them”). Although the defendants contend that such a          then could go over them with teachers in their
position did not require administrator-level certification, the      [respective] schools. I immediately objected to this
duties of these “facilitators,” which Osborn described during        because it was cheating and I was aware of a case in
his deposition, are quite similar to those of an assistant           North Carolina where teachers had their certificates taken
principal.                                                           away for doing the same thing. Kinker said she had been
                                                                     doing this for years and that if anyone objected, she had
   Thus, the decision at issue did not necessarily have              gotten rid of them.
“prospective [budgetary] implications” beyond Canary
himself. See Campana v. City of Greenfield, 38 F. Supp. 2d           . . . Welton was asked if he would allow this to be done
1043, 1049 (E.D. Wis. 1999) (holding that the council                at McKinley . . . . He stated that I was in charge of
members’ vote authorizing the city mayor to suspend the city         testing and that we would not allow cheating at
treasurer was not legislative in nature because the action “had      McKinley.
no implications for the position of city treasurer in general”
and was “focused on the discipline of a particular city              Despite Canary’s and Welton’s stated objections at the
employee”). Furthermore, “[a] job is not abolished under           November 1992 meeting, Canary came to believe that “actual
circumstances where the appointing authority simply transfers      tests had been shown to and hand-copied by teachers at
                                                                   Wilson . . . .” As a result, Canary wrote to E. Roger Trent,
4         Canary v. Osborn, et al.                   No. 98-4218    No. 98-4218                     Canary v. Osborn, et al.     13

then Director of the Division of Educational Services at the          reflected a discretionary, policymaking decision
Ohio Department of Education. In his letter, Canary                   implicating the budgetary priorities of the city and the
recounted part of the November 1992 meeting and requested             services the city provides to its constituents. Moreover,
an investigation into the matter. Specifically, he wrote as           it involved the termination of a position, which, unlike
follows:                                                              the hiring or firing of a particular employee, may have
                                                                      prospective implications that reach well beyond the
    It is common knowledge here that the cheating was                 particular occupant of the office.
    directed from the superintendent aids [sic], and they
    indicated that they had been told to do so.                     Id. at 55-56 (emphasis added).
    ...                                                                Based on the above considerations, it becomes evident that
                                                                    the members of the Board in the present case are not entitled
    I feel certain that an investigation will reveal a              to summary judgment on their claim of legislative immunity.
    conspiracy to cheat that includes “top personnel” and           Even “stripped of all considerations of intent and motive,” the
    possibly board members.                                         action in substance was not essentially and clearly legislative.
                                                                    Unlike the ordinance in Bogan, the resolution proposed by
    I feel certain that a cover-up is now taking place.             Osborn and adopted by the Board to not renew Canary’s
                                                                    contract did not “b[ear] all the hallmarks of traditional
    I feel certain that plans are being made to retaliate against   legislation.”
    myself and Mr. Welton based on statements . . . made to
    me and others.                                                     First, despite the fact that the minutes of the Board meeting
                                                                    contain an entry indicating that the challenged action was
  As a result of Canary’s letter, Trent notified Osborn that his    taken due to “the adverse financial status being faced by the
office had received allegations of possible test security           district,” the record does not otherwise reflect that the
violations. He requested that Osborn conduct an investigation       decision was one “implicating the budgetary priorities of the
and issue a written report of any action taken in response.         city and the services the city provides to its constituents.” On
Osborn complied with Trent’s initial request by engaging            the contrary, the minutes indicate that the Board went into
Richard Ross, the School District’s attorney, to conduct an         executive session for the specific purpose of “discuss[ing] the
investigation into the matter. Ross interviewed various             employment of public employees.”                 Moreover, the
administrators, including Canary, in connection with his            circumstances of the one-hour executive session—which
probe. During Canary’s interview, Ross allegedly accused            included short visits by some of the individuals under
Canary of “being insubordinate for not going along with the         review—suggest that the Board was making personalized
testing procedure . . . .”                                          assessments of individual employees, not engaging in an
                                                                    impersonal budgetary analysis of various positions. In fact,
  Sometime between April and July of 1993, Ross submitted           the minutes explicitly indicate that the recommended
a written report to Trent. After reviewing Ross’s assessment,       resignations, changes in status, and
Trent communicated his conclusions to the School District,          appointments/reappointments constituted “personnel actions.”
via Ross, in a letter dated July 23, 1993. He found that “the       See Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988)
district was NOT in compliance with one of the fundamental          (“[E]mployment decisions generally are administrative . . . .”).
provisions of Rule 3301-12-06 [of the Administrative Code]:
the requirement that each district establish written procedures
12   Canary v. Osborn, et al.                   No. 98-4218      No. 98-4218                    Canary v. Osborn, et al.        5

Bogan’s and Roderick’s motion to dismiss, which was based        protecting the security of test materials while they are in
on an assertion of legislative immunity. On appeal, the First    school.” (Emphasis in original.) Specifically with respect to
Circuit affirmed, holding that the challenged conduct was        the practice objected to by Canary and Welton, Trent wrote as
administrative, not legislative. See Scott-Harris v. City of     follows:
Fall River, 134 F.3d 427 (1st 1997).
                                                                   Although [Rule 3301-12-06] contains no specific
  The Supreme Court reversed, holding that “local legislators      provision limiting the preview of test materials by
are . . . absolutely immune from suit under § 1983 for their       teachers, both Section 3319.151 of the Revised Code and
legislative activities.” Bogan, 523 U.S. at 49. The Court          this rule clearly prohibit the use of materials for the
made clear that the determination of whether an activity is        purpose of improving a student’s score. Encouraging
“legislative” must be made without regard to the legislators’      teachers to review the actual tests for the purpose of
subjective intent. See id. at 54 (“[T]he [First Circuit]           “improving test-taking techniques[]” . . . is an activity
erroneously relied on [the officials’] subjective intent in        that, in certain high stakes situations, might result in
resolving the logically prior question of whether their acts       someone’s using the information to improve students’
were legislative.”); see also Tenney, 341 U.S. at 377 (“The        scores.
claim of an unworthy purpose does not destroy the
privilege.”). In other words, “[w]hether an act is legislative     We expect Portsmouth City Schools to discontinue
turns on the nature of the act, rather than on the motive or       immediately the practice of encouraging or allowing
intent of the official performing it.” Bogan, 523 U.S. at 54.      teachers to preview the tests currently being administered
The proper inquiry, therefore, was “whether, stripped of all       by the district (or commercially-prepared alternative
considerations of intent and motive, [the] actions were            forms of such tests) for the purpose of “improving test-
legislative.” Id. at 55.                                           taking techniques.”
  Applying those standards to the facts before it, the Supreme   Trent ultimately concluded, however, that “there is no
Court ruled that Bogan and Roderick were indeed entitled to      concrete evidence that any one [sic] used the test materials to
legislative immunity: “Roderick’s acts of voting for an          reveal any specific test question to a student or to help any
ordinance were, in form, quintessentially legislative. . . .     student cheat . . . .”
Bogan’s introduction of a budget and signing into law an
ordinance also were formally legislative, even though he was       In a separate but related dispute, another employee of the
an executive official. . . . Bogan’s actions were legislative    School District, Michael Osborne, sued the Board in 1993
because they were integral steps in the legislative process.”    “relat[ing] to a forced vacation following an allegation that
Id. (citations omitted). The Court then looked beyond            [he] had disseminated actual achievement test questions to the
Roderick’s and Bogan’s “formal actions” to consider whether      faculty at Wilson . . . .” (Michael Osborne, a teacher at the
the ordinance at issue was legislative “in substance”:           Wilson Elementary School, is not to be confused with H.
                                                                 Garry Osborn, the Superintendent of the School District.)
  We need not determine whether the formally legislative         William K. Shaw, Jr. served as Michael Osborne’s attorney.
  character of [Roderick’s and Bogan’s] actions is alone         During the course of Shaw’s representation, he requested and
  sufficient to entitle [them] to legislative immunity,          received from the Ohio Department of Education an
  because here the ordinance, in substance, bore all the         unredacted copy of Canary’s letter to Trent. Armed with
  hallmarks of traditional legislation. The ordinance            Canary’s letter, Shaw met with Osborn and Ross in June of
                                                                 1993. During that meeting, Shaw complained that his client,
6    Canary v. Osborn, et al.                   No. 98-4218      No. 98-4218                    Canary v. Osborn, et al.     11

Michael Osborne, was “being blamed and disciplined for           in a legislative manner when they voted to not renew
allegedly creating a teaching controversy” while Canary, who     Canary’s contract. In response, Canary contends that the
Shaw characterized as “the driving force behind the State’s      defendants’ action “was simply an administrative employment
investigation,” had not been “punished in any form.”             decision.” Because we agree with Canary’s position as to the
According to Shaw, Ross responded to the complaint by            factual nature of the inquiry and whether the contested action
stating that he and Osborn “would take care of Canary.”          was legislative in nature in this case, we need not address the
Shaw also contends that “Osborn nodded as if in agreement        question of whether a school board can ever be shielded by
. . . .”                                                         legislative immunity.
   Shortly after Shaw’s meeting with Osborn and Ross,               The disposition of the present case requires a close
Osborn asked Canary about the substance of his letter to         examination of Bogan. Janet Scott-Harris, the plaintiff in that
Trent. According to Canary, Osborn “angrily confronted”          case, was the Administrator of the Fall River (Massachusetts)
him and asked “[W]hat is this horse[—] letter[?]” Osborn         Department of Health and Human Services (DHHS). During
testified during his deposition that, after learning from Shaw   her tenure, she received a complaint that one of her temporary
that Canary had written the letter to Trent, he shared that      employees had made several racial and ethnic slurs about the
information with members of the Board: “I would assume that      employee’s colleagues. Scott-Harris responded by preparing
I would have had a discussion with them about it or sent them    termination charges against the employee. The employee,
a copy [of the letter]. . . . You know, I can’t recall any       however, was able to forestall termination by using her
specific conversation, but I’m assuming that I would have        political connections with the Fall River City Council to
discussed it with them, and shared a copy with them and          obtain a hearing on the matter. As a result of the hearing, the
counsel.” A copy of the letter was also distributed by Osborn    employee agreed to be suspended without pay for sixty days.
to other administrators. In July of 1993, Canary was             Daniel Bogan, the mayor of Fall River, eventually reduced the
transferred from McKinley to Portsmouth East.                    length of the suspension.
   On March 10, 1994, the Board held one of its regular            While the charges against the employee were pending,
meetings. Apel, Fuller, Hickman, Stevens, and Sturgill were      Bogan had prepared his annual city budget proposal.
all in attendance.       The minutes reflect that, after         Anticipating a reduction in revenue, Bogan proposed freezing
approximately thirty-five minutes of discussing several          municipal employee salaries and eliminating 135 jobs.
routine matters, the Board went into executive session “to       Included in his proposal was the elimination of the DHHS, of
discuss the employment of public employees.” In addition to      which Scott-Harris was the sole employee. The City Council
the Board, other individuals were allowed to attend the          Ordinance Committee, chaired by Marilyn Roderick,
executive session, including Osborn and Ross. The closed         approved an ordinance eliminating the DHHS. After the city
meeting lasted from 6:40 p.m. until 7:43 p.m. During that        council adopted the ordinance, Bogan signed it into law.
time, various “outsiders” were permitted into the executive
session. For example, Shaw and Michael Osborne entered at           Scott-Harris thereafter filed a § 1983 action against Fall
6:50 p.m. and exited at 7:13 p.m., and Welton attended from      River, Bogan, Roderick, and others, alleging that “the
7:22 p.m. until 7:41 p.m. Canary was not present for any part    elimination of her position was motivated by racial animus
of either the regular meeting or the executive session.          and a desire to retaliate against her for exercising her First
                                                                 Amendment rights in filing the complaint against [the
                                                                 employee].” Bogan, 523 U.S. at 47. The district court denied
10    Canary v. Osborn, et al.                   No. 98-4218     No. 98-4218                      Canary v. Osborn, et al.         7

Constitution, see U.S. CONST. art. I, § 6, has been                The results of the Board’s closed meeting are set forth in its
summarized as follows:                                           minutes under the title “personnel actions,” and are further
                                                                 divided into “resignations,” “change[s] in status,” and
  In order to enable and encourage a representative of the       “appointment[s]/reappointment[s].” As for the first of these
  public to discharge his public trust with firmness and         categories, the minutes reflect that the Board accepted the
  success, it is indispensably necessary, that he should         resignations of a teacher/tutor and of a custodian. The third
  enjoy the fullest liberty of speech, and that he should be     category lists eight principals and assistant principals,
  protected from the resentment of every one, however            including Kinker, who were appointed or reappointed, along
  powerful, to whom the exercise of that liberty may             with their respective contract start dates.
  occasion offense.
                                                                    Five individuals are listed under the “change[s] in status”
Tenney, 341 U.S. at 373 (citation and internal quotation marks   category. The minutes indicate that, after the Board changed
omitted). It is the defendants’ burden to establish the          the title of one of its substitute teachers, it voted to not renew
existence of absolute legislative immunity. See Kamplain v.      the contracts of four certified administrators—Canary,
Curry County Bd. of Comm’rs, 159 F.3d 1248, 1251 (10th           Kathleen Moore, Michael Osborne, and Welton. Each name
Cir. 1998).                                                      is listed separately, followed by their title as of the date of the
                                                                 meeting, a summary of the expiring contract, and the position
   Recently, the Supreme Court extended this “venerable          to which they were newly appointed. For Canary, Michael
tradition” to local legislators, making them “absolutely         Osborne, and Welton, that new position was a demotion to
immune from suit under § 1983 for their legislative              “Teacher, Continuing Contract.” The following explanation
activities.” Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998).      is provided in the minutes for each of these “change[s] in
It reasoned as follows:                                          status”:
  The rationales for according absolute immunity to                This action reflects the adverse financial status being
  federal, state, and regional legislators apply with equal        faced by the district. As a result of the financial
  force to local legislators. Regardless of the level of           situation, it will be necessary to carefully analyze the cost
  government, the exercise of legislative discretion should        efficiency of other district positions and possibly
  not be inhibited by judicial interference or distorted by        eliminate some positions which are important; but not
  the fear of personal liability. Furthermore, the time and        critical to the operation of the district. The possibility of
  energy required to defend against a lawsuit are of               such action being taken in the future was communicated
  particular concern at the local level, where the part-time       to all administrators in March of 1991.
  citizen-legislator remains commonplace. And the threat
  of liability may significantly deter service in local            All of these decisions were made upon Osborn’s
  government where prestige and pecuniary rewards may            recommendation, and were unanimously approved by the
  pale in comparison to the threat of civil liability.           Board. During the remainder of the meeting, the Board
                                                                 discussed various financial reports and other miscellaneous
Id. at 52 (citations omitted).                                   matters. By letter dated March 11, 1994, Osborn informed
                                                                 Canary of the Board’s decision, and provided the following
  As previously noted, the defendants argued in support of       explanation:
their summary judgment motion that the members of the
Board are entitled to such immunity because they were acting
8      Canary v. Osborn, et al.                    No. 98-4218      No. 98-4218                     Canary v. Osborn, et al.      9

    The action was taken as a reaction to the adverse               order, the district court concluded that the members of the
    financial status being faced by the district. Difficult         Board were not entitled to absolute legislative immunity
    situations often result in the need to take unpleasant          because “in not renewing particular employees’ contracts
    actions. We are sad for the discomfort and displeasure          while renewing others, the Board was making individual
    the action may cause you. The best is wished for your           employment decisions.”
    tenure as a district teacher.
                                                                      In this appeal, the defendants do not contest the other
  Although not entirely clear from the record, the Board            rulings contained in the district court’s order. Rather, they
apparently created two new “student facilitator” positions for      take issue with the district court’s interpretation of Bogan and
the School District sometime after March of 1994. Osborn            argue that Bogan is indistinguishable from the present case.
testified during his deposition that a student facilitator, among
other things, “helps with discipline, proficiency, testing,                               II. ANALYSIS
guidance of young people, [and] counseling.” At least one of
the student facilitators was allocated to Portsmouth East,          A. Standard of review
where Joe Knapp served as the Principal. During the summer
of 1994, Canary, at the urging of Knapp, applied for that             We review de novo a district court’s decision to grant or
position. He was not appointed. At the end of the summer,           deny summary judgment. See Smith v. Ameritech, 129 F.3d
Canary was informed that he would be assigned to teach at           857, 863 (6th Cir. 1997). Summary judgment is appropriate
McKinley for the 1994-1995 school year. It was then that he         when there are no genuine issues of material fact in dispute
learned that Jim Smith, another employee within the School          and the moving party is entitled to judgment as a matter of
District, had been chosen to be the new student facilitator at      law. See FED. R. CIV. P. 56(c). In deciding a motion for
Portsmouth East.                                                    summary judgment, the court must view the evidence and
                                                                    draw all reasonable inferences in favor of the non-moving
B. Procedural history                                               party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
                                                                    475 U.S. 574, 587 (1986). The judge is not “to weigh the
   Canary filed suit against Apel, Fuller, Hickman, Osborn,         evidence and determine the truth of the matter but to
Stevens, Sturgill, and the Board. He sued the members of the        determine whether there is a genuine issue for trial.”
Board in their individual and official capacities. In his           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
complaint, Canary alleged that the defendants “infringed upon       A genuine issue for trial exists when there is sufficient
[his] right to speak out about matters of public concern by         “evidence on which the jury could reasonably find for the
retaliating against him and demoting him because he refused         plaintiff.” Id. at 252.
to engage in the cheating scheme . . . and because he reported
the activity to the State of Ohio.”                                 B. The district court did not err when it held that the
                                                                       defendants were not entitled to absolute legislative
  The defendants filed a motion for summary judgment on                immunity
May 15, 1998. Among other things, they argued that Apel,
Fuller, Hickman, Stevens, and Sturgill were not liable in their       “Freedom of speech and action in the legislature was taken
individual capacities because they were entitled to absolute        as a matter of course by those who severed the Colonies from
legislative immunity as established by Bogan v. Scott-Harris,       the Crown and founded our Nation.” Tenney v. Brandhove,
523 U.S. 44 (1998). The district court, by order dated              341 U.S. 367, 372 (1951). The rationale supporting such
September 30, 1998, denied the defendants’ motion. In its           absolute legislative immunity, which was written into our
