                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-1-2008

Miller v. Clinton
Precedential or Non-Precedential: Precedential

Docket No. 07-2105




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                                  PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


               No. 07-2105


              RITA MILLER

                     v.

       CLINTON COUNTY;
   HONORABLE RICHARD SAXTON

        Honorable Richard N. Saxton,

                      Appellant


Appeal from the United States District Court
  for the Middle District of Pennsylvania
       (Civ. Action No. 06-cv-00398)
  District Court: Judge John E. Jones, III


           Argued May 13, 2008
        BEFORE: McKEE, ROTH, Circuit Judges,
          and PADOVA, District Court Judge*

              (Opinion filed: October 1, 2008)


A. TAYLOR WILLIAMS, ESQ. (Argued)
Administrative Office of PA Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102

Attorney for Appellant Honorable Richard N. Saxton


JOSEPH P. GREEN, ESQ. (Argued)
LEE, GREEN, & REITER, INC.
115 East High Street
P.O. Box 179
Bellefonte, Pa. 16823

Attorney for Appellee Clinton County




    *
     The Honorable John R. Padova, Senior District Judge,
United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
                             2
JOSEPH F. ORSO, III, ESQ. (Argued)
CASALE & BONNER
33 West Third Street
Suite 202
Williamsport, PA 17701

Attorney for Appellee Rita Miller



                          OPINION


McKEE, Circuit Judge.

       Rita Miller, a former employee of the Clinton County
Probation office, brought this civil rights action against the
President Judge of the Court of Common Pleas of Clinton
County, Pennsylvania, Richard Saxton, pursuant to 42 U.S.C.
§ 1983. Miller=s complaint asserts that Judge Saxton
terminated her employment in violation of her First
Amendment right to free speech, and her Fourteenth
Amendment right to due process.1


       1
        The First Amendment guarantee of free speech is
incorporated into the Fourteenth Amendment’s due process
clause and therefore applicable against the states. See Phillips
v. Keyport, 107 F.3d 164, 183 (3d Cir. 1997). Miller also stated
a separate cause of action for an alleged due process violation.


                               3
       Judge Saxton moved to dismiss Miller=s complaint for
failure to state a claim pursuant to Fed. R. Civ. P 12(b)(6).
Alternatively, he claimed that he was entitled to qualified
immunity even if Miller’s complaint stated a cause of action.
He also moved for a more definite statement pursuant to Fed.
R. Civ. P. 12(e) in order to resolve any issue of fact that may
have precluded a grant of qualified immunity. The district
court denied Judge Saxton=s motion to dismiss as well as his
Rule 12(e) motion for a more definite statement and this
appeal followed. For the following reasons, we will reverse.

                   I. Factual Background

       Miller was employed as an Adult Probation Officer by
the Clinton County Probation Office. The Probation Office’s
employees had a collective bargaining agreement with the
County. According to Miller, one of her supervisors was
ineffective and unprofessional. The supervisor allegedly
referred to probationers as “scum,” and openly stated that they
did not deserve the money that the Probation Office spent on
them.

       On January 22, 2006, Miller wrote a letter to Judge
Saxton expressing her dissatisfaction with the Probation
Office. The letter was very short. In the letter, Miller stated:


She argues that she has a property interest in her employment
and that she was deprived of that interest without due process of
law in violation of the Fourteenth Amendment.


                               4
              [T]he reason I am writing to you
             now is that I can no longer work
             under the stressful conditions
             which must endure since Mrs.
             Foresman has become my
             supervisor.      I have tolerated
             intimidation and hostility from
             Mr. Rosamilia numerous times
             throughout my employment with
             the county. I know that you are
             friends with both of them and you
             may not appreciate my candor but
             I believe that the time has come to
             explain my position to the court.

       Miller also complained that Supervisor Foresman
asked her to identify probationers whose restitution payments
were in arrears, and she complained about Foresman
suspending her because her clients were delinquent in those
payments. She claimed that there was a difference in
philosophy between herself and Foresman. According to the
letter, that difference was that Miller “believes in
rehabilitation for most clients, [whereas Foresman] believes
[the clients] are scum and no money should be wasted on
them.

       Judge Saxton fired Miller immediately after receiving
her letter. Soon thereafter, Miller brought this suit under §
1983. She alleged a constitutionally protected property


                             5
interest in her continued employment, and claimed that the
failure to provide her with adequate notice and opportunity to
respond was a violation of the Fourteenth Amendment’s
guarantee of due process.         She also asserted that her
expression was protected under the First Amendment’s
guarantee of free speech and that she had been improperly
terminated for exercising her right to free speech.

        As we noted at the outset, Judge Saxton moved to
dismiss Miller=s claims under Federal Rule of Civil Procedure
12(b)(6). He also claimed immunity from suit. For reasons
that are not at all apparent on this record, Miller did not attach
her letter to her complaint. However, Judge Saxton appended
it to his motion to dismiss and asked the court to convert that
motion to a motion for summary judgment in the alternative.
In addition, he asked the court to require Miller to provide a
more definitive statement of the basis for her claim pursuant
to Fed. R. Civ. P 12(e), if his motion to dismiss or for
summary judgment was denied.

       The district court denied Judge Saxton=s 12(b)(6)
motion and refused to convert it to a summary judgment
motion. The court concluded that Judge Saxton had not
established that he was entitled to qualified immunity because
the record did not support his claim that he had not violated
Miller’s clearly established constitutional rights. Although
the court also ruled that the pleadings were insufficient to
determine if Miller=s termination was the result of retaliation
for protected speech, the court refused to consider Miller’s


                                6
letter appended to Judge Saxton’s motion to dismiss. The
district court ruled that the letter did not sufficiently
supplement the record to allow for summary judgment. The
court also denied Judge Saxton’s Rule 12(e) motion. Finally,
the court concluded that Miller’s due process claim could not
be dismissed at the pleading stage because she alleged that the
terms of her employment were governed by the terms of a
collective bargaining agreement. This appeal followed.

          II. Jurisdiction and Standard of Review

        A denial of qualified immunity is a “final judgment”
subject to immediate appeal within the meaning of 28 U.S.C.
§ 1291. Behrens v. Pelletier, 516 U.S. 299, 307 (1996).
Thus, we have jurisdiction to review the district court’s denial
of Judge Saxton’s motion to dismiss or for summary
judgment. Our review is plenary. Doe v. Groody, 361 F.3d
232, 237 (3d Cir. 2004).

                        III. Discussion

        The doctrine of qualified immunity shields government
officials performing discretionary functions Afrom liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.@ Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Qualified immunity is not merely a
defense, but is “an entitlement not to stand trial or face the
other burdens of litigation.” Saucier v. Katz, 533 U.S. 194,
200 (2001) (citation omitted). Therefore, any claim of


                               7
qualified immunity must be resolved at the earliest possible
stage of litigation. Id. at 201.

        In Saucier, the Supreme Court made clear that claims
for qualified immunity are to be evaluated using a two-step
process. Id. at 201. “First, [we] must decide whether the
facts, taken in the light most favorable to the plaintiff, show a
constitutional violation. If the plaintiff fails to make out a
constitutional violation, the qualified immunity inquiry is at
an end; the officer is entitled to immunity.” Bennett v.
Murphy, 274 F.3d 133, 136 (3d Cir. 2003). “Once it is
determined that evidence of a constitutional violation has been
adduced, courts evaluating a qualified immunity claim move to the
second step of the analysis to determine whether the constitutional
right was clearly established.” Id.

       Based on our phased inquiry under Saucier, we
conclude the district court erred in not dismissing Miller’s
complaint because her allegations do not establish either a
violation of her right to free speech under the First
Amendment, or a denial of due process. As the Court
explained in Saucier, “[i]f no constitutional right would have
been violated were the allegations established, there is no
necessity for further inquiries concerning qualified
immunity.” 533 U.S. at 201.

            A. First Amendment Retalion Claim

       In Pickering v. Bd. of Educ., 391 U.S. 563, 570 (1968),
the Supreme Court first held that a public employee does not
relinquish First Amendment rights to comment on matters of


                                8
public interest by virtue of government employment. Thus, a
public employer may not discharge an employee for a reason
that infringes upon that employee's constitutionally protected
interest in the freedom of speech. Rankin v. McPherson, 483
U.S. 378, 383 (1987). Nevertheless, public employers are still
employers, and they therefore have the same concern for
efficiency and the need to review and evaluate employees as
any other employer in order to ensure that the actions of
employees do not interfere with the performance of public
functions. Id. at 383-89. On the other hand, the Court
recognized that “the threat of dismissal from public
employment is . . . a potent means of inhibiting speech.” Id.
at 384 (quoting Pickering, 391 U.S. at 574).

       Thus, in order to determine if a public employer’s
termination of an employee violates the constitutional
guarantee of free speech, we must “balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the [public
employer], in promoting the efficiency of the public services
it performs through its employee.” Pickering, 391 U.S. at
568; see also Connick v. Myers, 461 U.S. 138, 140 (1983).

        That balance turns on a three-prong inquiry. Watters v.
City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995).
Accordingly, in order for Miller to establish an
unconstitutional firing, she must establish that her speech was
protected, and that it was a motivating factor in the alleged
retaliatory dismissal. Id (citations omitted). If she does so,
Judge Saxton must then establish that he would have taken the



                              9
same employment action “even in the absence of the protected
conduct.” Id. (citation omitted).

        At this stage, we are only concerned with the first part
of that inquiry - whether the speech was protected; and that is
solely a question of law. To be protected, the speech must
implicate a matter of public concern and must outweigh the
employer’s interest in the effective operations of its public
services. Speech implicates a matter of public concern if the
content, form, and context establish that the speech involves a
matter of political, social, or other concern to the community.
Connick, 461 U.S. at 146-48. If the speech touches on a
matter of public concern, we must then balance the
employee’s interest in engaging in her speech with the
employer’s countervailing interests, including the employer’s
prerogative of removing employees whose conduct impairs
performance; and concerns for the morale of the workplace,
harmonious relationships among co-workers, and the regular
operation of the enterprise. Id. at 151. The balancing we
must undertake is a fact-intensive inquiry that requires
consideration of the entire record, and must yield different
results depending on the relative strengths of the issue of
public concern and the employer’s interest. Id. at 152. No
one factor controls the inquiry.

       Our inquiry is guided by the Supreme Court’s
resolution of these competing interests in Connick, supra.
Sheila Myers was an Assistant District Attorney in New
Orleans who strongly opposed the District Attorney, Harry
Connick, in his plan to transfer her to another district. She



                              10
voiced that opposition to Connick’s policies to her direct
supervisor who told her that others did not share her concerns.
Myers responded by distributing a questionnaire that solicited
the view of her fellow staff members concerning office
transfer policy, office morale, the need for a grievance
committee, the level of confidence in supervisors, and
whether employees felt pressured to work on political
campaigns. Sometime after the questionnaire was circulated,
Myers’ supervisor told Connick that it was causing a mini-
insurrection in the office. Connick responded by firing Myers
for refusing to accept the transfer. He also told her that
circulating the questionnaire was an act of insubordination.
Myers responded by bringing a civil rights action under §
1983 in which she alleged that the firing violated her First
Amendment right of free speech. The district court agreed
and ordered her reinstated with compensation including
attorney’s fees. The court concluded that she had actually
been fired for circulating the questionnaire, that the
questionnaire involved matters of public concern, and that the
“state had not ‘clearly demonstrated’ that [it] ‘substantially
interfered’ with the operations of the District Attorney’s
office.” Id. at 142. Connick appealed to the United States
Court of Appeals for the Fifth Circuit, which affirmed on the
basis of the district court’s opinion. Connick then sought
review in the Supreme Court by way of certiorari, which was
granted.

       The Supreme Court began its analysis by stating that
“[f]or at least 15 years, it has been settled that a state cannot
condition public employment on a basis that infringes the



                               11
employee’s constitutionally protected interest in freedom of
expression.” Id. The Court then explained that in order to
resolve Myers’ claim, it must (as explained in Pickering),
“seek a balance between the interests of the [employee], as
citizen, in commenting upon matters of public concern and
the interest of the State, as an employer.” Id. (internal
quotation marks omitted). The Court recognized the state’s
interest as employer in “‘promoting efficiency of the public
services it performs through its employees[.]”’ Id. (quoting
Pickering, 391 U.S. at 568).

        After examining Myers’ questionnaire, and the
surrounding circumstances, the Court concluded that
questions pertaining to the transfer policy, her fellow
employees’ confidence and trust in their supervisors, office
morale, and the need for a grievance committee were merely
extensions of Myers’ dispute over her transfer. Id. at 147-48.
Those questions were not intended to shed light on any actual
or potential wrongdoing or breach of the public trust by the
district attorney’s office. Rather, they were merely an
expression of Myers’ personal grievance against Connick.
Accordingly, they did not constitute matters of public
concern. Id.

       The Court believed that the only expression touching
upon a matter of public concern was the inquiry into whether
Connick pressured employees to work on political campaigns.
Id. at 149. However, after viewing the statement in context
and considering the circumstances in which she circulated it,
the Court held that one expression of public concern did not



                             12
outweigh the District Attorney’s interest in the efficient
operation of his office because the questionnaire as a whole
was of such limited value to the public. Id. at 154. Taken as
a whole, it challenged the authority of Myers’ supervisor,
questioned the application of a transfer policy as applied to
her, and undermined the close working relationships
necessary for the effective functioning of the District
Attorney’s office. Id. That did not outweigh the employer’s
right to terminate Myers.2 Id.

        Here, Miller’s statements that the Clinton County
Probation office was being run ineffectively, and that her
supervisors called probation clients “scum” undoubtedly refer
to matters of public concern. Connick, 461 U.S. at 146
stating that speech involves a matter of public concern if it
can be fairly considered as relating to any matter of political,
social, or other concern to the community). Indeed, the public
concern over the manner in which a probation office

   2
     The Court explained that the inquiry necessarily involves a
sliding scale. The employer has no obligation to wait for the
disruption to occur to terminate the employee, so long as the
speech has significant potential to cause disruption relative to its
value. Id. at 152. On the other hand, the Court stated that if the
questionnaire more substantially involved issues of public
concern, a greater showing of disruption would have been
needed to justify Myers’ termination. Id. In other words, the
amount of disruption a public employer has to tolerate is
directly proportional to the importance of the disputed speech to
the public.


                                13
supervises probationers in the criminal justice system is
obvious.

        Connick and its progeny illustrate the extent to which
we must view Miller’s statements in context with the entire
letter. We can not “cherry pick” something that may impact
the public while ignoring the manner and context in which
that statement was made or that public concern expressed.
Our inquiry must also consider the form and circumstance of
the speech in question.

       The district court refused to consider the entirety of
Miller’s letter because it did not believe that Judge Saxton’s
appending the letter to his motion was sufficient to convert
the motion to dismiss into a motion for summary judgment.
We disagree. A Acourt may consider an undisputedly authentic
document that a defendant attaches as an exhibit to a motion
to dismiss if the plaintiff=s claims are based on the document.@
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1992).3

       Miller’s claims are undisputably based on her January
26, 2006 letter to President Judge Saxton, and only upon that
letter. Moreover, in her complaint, Miller appropriately


   3
     In Pension Benefit Guaranty, we reasoned that any other
rule would allow a Aplaintiff with a legally deficient claim to
survive a motion to dismiss simply by failing to attach a
dispositive document on which it relied.@ Id.


                              14
makes numerous references to the letter as the entirety of her
speech is contained in it.4 We find no reason why the district
court should not have considered the letter in deciding the
motion to dismiss, or in converting the motion to a motion for
summary judgment. We will therefore consider the entirety
of the letter in this appeal. See Pension Benefit Guaranty
Corp. v. White Consolidated Industries, Inc., 998 F.2d at
1196-97 (considering a document on appeal that the district
court did not consider while deciding a motion to dismiss).5

      Upon considering the entirety of Miller’s letter it is
obvious that, although a small portion of the letter touches
upon a matter of public concern, the context in which the
statement occurs establishes that the speech is not protected.

   4
   Neither the authenticity, nor the accuracy of that document
was in dispute.
       5
         Our conclusion that the district court should have
considered Miller=s entire letter makes it unnecessary to decide
whether the district court should have granted Judge Saxton=s
motion under Rule 12(e) for a more definitive statement.
However, we take this opportunity to reemphasize the
importance of granting a motion under Rule 12(e) where it
furthers the considerations underlying qualified immunity.
Thomas v. Independence, 463 F.3d 285, 301 (3d Cir. 2006)
(highlighting the usefulness of Rule 12(e) motions as part of a
district court’s obligation to “avail itself of the procedures
available under the Federal Rules to facilitate an early resolution
of the qualified immunity issue.”)


                                15
Miller’s letter focused upon her private grievances as an
employee. Her statements about the ineffective operation of
the Probation Office, and her concerns about her supervisor’s
comments that the probationers are “scum,” are collateral to
the thrust of her complaint. She quite clearly states: “[T]he
reason I am writing to you now is that I can no longer work
under the stressful conditions which must endure since Mrs.
Foresman has become my supervisor.” That declaration
provides the context for all that follows. Miller was upset
with Foresman’s supervision of her, and could no longer
tolerate being supervised by her. In that context, the brief
references to an issue of public concern she can hardly be
interpreted as manifesting anything other than a multi-faceted
personal “gripe” not unlike that voiced in Myers’
questionnaire. See Connick, 461 U.S. at 153 (“Myers
acknowledges that it is no coincidence that the questionnaire
followed upon the heels of the transfer notice.”) The personal
context in which Miller’s letter arose, in addition to the
tangential connection between the issues of public concern
and the overall thrust of the letter so minimizes any public
concern in the subject of her expression as to tip the First
Amendment balance in favor of her employer.

       Miller’s letter harshly criticizes two of her direct
supervisors. She accuses her immediate supervisor of lying
on two separate occasions and taking credit for the work of
other co-workers. Miller also seemingly offers an ultimatum
to the Chief Judge, stating that “she is not sure she can return
[to her job] as long as Mr. Rosamilia and Mrs. Foresman
continue to work there.” Miller’s letter is even disrespectful



                              16
to Judge Saxton. In one exchange, she accuses her supervisor
of lying and performing her job inadequately, but summarizes
the passage by telling the Judge, “apparently that is the kind
of Probation Officer you and Mr. Rosamilia [another
supervisor] admire.”

       Miller’s letter is therefore analogous to the speech at
issue in Connick. In launching into an attack on management
and her supervisors, Miller’s letter did manage to brush ever
so gently against a matter of public concern just like Myers’
questionnaire in Connick.          However, that seemingly
serendipitous encounter does not convert her personal
grievance into protected speech.6

  6
    We nevertheless think it imperative to caution that we in no
way suggest that speech which is otherwise public in nature can
be sanctioned merely because it arises in the context of personal
dissatisfaction or a personal grievance. In fact, common sense
suggests that most employees will not speak out and criticize
their employer if all is going well for them personally and they
have no “axe to grind.” Nor do we suggest that an employer can
rely solely upon the disruption that may follow when an
employee speaks on a matter of public concern merely because
the employee is motivated by personal dissatisfaction with
his/her employment. It is not the grinding of the proverbial axe
that removes the protection of the First Amendment, it is the
private nature of the employee’s speech. Care must always be
taken not to confuse the two inquiries. See O’Donnell v.
Yanchulis, 875 F.2d 1061, 1062 (3d Cir. 1989) (“[I]t would be
absurd to hold that First Amendment generally authorizes


                               17
       Since Miller’s speech is unprotected, she cannot
establish a First Amendment retaliation claim. That cause of
action should therefore have been dismissed because Judge
Saxton is entitled to qualified immunity. Her due process
claims also fail to state a constitutional violation and should
have been dismissed for the same reason.

                  B. Due Process Claims7

       The District Court also erred in not dismissing Miller=s
due process claim. Miller alleged that her termination
occurred without notice or opportunity to respond, and
resulted in a deprivation of her property interest in continued
employment “without due process of law” in violation of the
Fourteenth Amendment.

       The first step in analyzing a due process claim is to
determine whether the “asserted individual interest ... [is]
encompassed within the [F]ourteenth [A]mendment's
protection of life, liberty, or property.” Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000) (internal citations and quotations
omitted). Judge Saxton contends that Miller possessed no
interest in her employment protected by the Fourteenth
Amendment because, under Pennsylvania law, as a public
employee her employment was at-will. In Elmore v. Cleary,
399 F.3d 279 (3d Cir. 2005), we held that an public employee
does not have any property interest in her employment within
the meaning of the Fourteenth Amendment because such an


corrupt officials to punish subordinates who blow the whistle
simply because the speech somewhat disrupted the office.”).

    7
     As noted earlier, Miller claims a right to notice and an
opportunity to be heard before being terminated as well as a
substantive due process property interest in employment. Our
discussion pertains equally to both aspects of her due process
claim.


                              18
employee serves solely at the pleasure of her public employer,
and can be dismissed at anytime for any legal reason or for no
reason at all. But see Clark v. Modern Group Ltd., 9 F.3d
321, 323, 327-28 (3d Cir. 1993) (recognizing exception for
terminations against public policy, such as for a
discriminatory purpose) .

       In fact, we concluded in Elmore that Pennsylvania law
precludes local governments from employing workers on any
term other than as an at-will employee unless explicit
enabling legislation to the contrary is enacted by the
Pennsylvania General Assembly. Id. at 282-83 (citing Stumpp
v. Stroudsburg Mun. Auth., 658 A.2d 333, 334 (Pa. 1995).
We stated, Atenure in public government, in the sense of
having a claim to employment which precludes dismissal on a
summary basis is, where it exists, a matter of legislative
grace.” Id. at 283 (quotation omitted). Therefore, we rejected
the argument that a personnel policy handbook conferred
employment that could be only be terminated for just-cause.

       Here, Miller cites no enabling legislation that would
exempt workers in Clinton County from the general rule that
public employees are at-will employees. Instead, Miller
attempts to rely on the existence of a collective bargaining
agreement which contains a provison that termination can
occur only for “just cause” and argues that the agreement
gives rise to a protected property interest in her employment.
The district court accepted that argument and denied Judge
Saxton=s motion to dismiss on that basis. It erred in doing so.

       Pennsylvania’s Public Employe Relations Act
(“PERA”), 43 P. S. §§ 1101.101 et seq., which allows
collective bargaining between public employees and local
governments, limits the matters that can be subject to
collective bargaining to Awages, hours, and other terms and
conditions of employment.@ See 43 P.S. § 1101.701. The
PERA does not undermine the general rule that public
employees in Pennsylvania are at-will employees. See


                              19
Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa.
1995) (holding that the rule that a public employee is an
employee-at-will “has not been abrogated by either this Court
or by the legislature”).8

       Moreover, Pennsylvania courts have interpreted the
statutory scheme at issue, and have conclusively held that a
court employee’s right to collectively bargain does not affect
the inherent right of judges to hire, discharge, and supervise
their employees. County of Lehigh v. Pennsylvania Labor
Relations Bd., 489 A.2d 1325, 1327 (Pa. 1985). In fact, the
Supreme Court of Pennsylvania has explicitly stated on
separate occasions that “matters affecting the hiring,
discharge, and supervisory powers of the public employer are
not subject to collective bargaining,” and that the rights of
judges to hire, discharge, and supervise court employees are
not affected by collective bargaining. Id. at 1329; see also
Ellenbogen v. County of Allegheny, 388 A.2d 730, 734 (Pa.
1978). Miller’s due process argument completely ignores this
body of law.




  8
    We note that in Com., Labor Relations Bd v. Franklin Twp.
Municipal Sanitary Auth., 395 A.2d 606, 608 (Pa. Commw. Ct.
1978), the Commonwealth Court held that the statutes
authorizing collective bargaining between public employees and
local government units “clearly contemplate[] that public
employers may agree in a collective bargaining agreement to
limit its otherwise unfettered power to dismiss employees at
will.” However, in light of the Pennsylvania Supreme Court’s
statement in Stumpp, 658 A.2d at 335, that the legislature has
not abrogated the general rule that public employees are
employees-at-will, we do not believe that the Commonwealth
Court’s statement in Franklin Twp. changes our analysis of
Miller’s due process claim. Indeed, in Stumpp, the Pennsylvania
Supreme Court expressly stated: “municipal entities lack the
authority to confer employment tenure by contract.” 658 A.2d
at 335.


                              20
        Accordingly, the collective bargaining agreement that
Miller relies upon could not confer any property interest in
her employment or elevate her to something other than an
employee-at-will under Pennsylvania law, and she cannot,
therefore, establish the violation of a constitutional right
which is a condition precedent to a claim under § 1983.9



  9
    The existence of a termination for just cause only provision
in the collective bargaining agreement does not does not change
this result. The power to appoint necessary personnel is inherent
in the judicial power. Sweet v. Pennsylvania Labor Relations
Board, 322 A.2d 362 (Pa. 1974). “The authority to supervise
and to discharge court-appointed employees is not only a
necessary corollary to this appointment power but is also
essential to the maintenance of an independent judiciary.”
County of Lehigh, 489 A.2d at 1327 (citing Commonwealth ex
rel. Bradley v. Pennsylvania Labor Relations Board, 388 A.2d
736 (Pa. 1978), and Ellenbogen v. County of Allegheny, 388
A.2d 730 (Pa. 1978). In Pennsylvania, county commissioners
“are the exclusive representative of management in
representation proceedings and collective bargaining under [the
PERA] involving court employees paid from county funds.”
Ellenbogen, 388 A.2d at 735. However, the exclusive authority
of county commissioners to negotiate “wages, hours, and other
terms and conditions of employment,” 43 P.S. § 1101.701, does
not affect the inherent right of judges to hire, discharge and
supervise court employees. Id.; see also County of Lehigh, 489
A.2d at 1329 (“[C]ounty commissioners are not prohibited from
negotiating ‘wages, hours and other terms and conditions of
employment” provided such terms do not impinge upon judicial
control of hiring, discharge, and supervision in some concrete
manner.”). Moreover, “the judiciary has the inherent power to
prevent any actual impairment of its independence created by
the collective bargaining process.” County of Lehigh, at 1329
(citations omitted). Therefore, even if the parties to the
collective bargaining agreement here intended to grant “just
cause” employment status to court employees, there is
absolutely no authority to do so.


                               21
                       III. Conclusion

        For the reasons set forth above, we conclude that
Miller cannot establish that Judge Saxton’s conduct violated
her constitutional rights, and that Judge Saxton is therefore
entitled to qualified immunity. We will therefore vacate the
order of the district court, and remand with instructions to
dismiss Miller’s complaint.




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