                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-4-2004

Curinga v. Clairton
Precedential or Non-Precedential: Precedential

Docket No. 03-1278




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"Curinga v. Clairton" (2004). 2004 Decisions. Paper 966.
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                        PRECEDENTIAL     SAMUEL J. CORDES, ESQUIRE
                                         (ARGUED)
        UNITED STATES                    Ogg, Cordes, Murphy & Ignelzi
       COURT OF APPEALS                  245 Fort Pitt Boulevard
     FOR THE THIRD CIRCUIT               Pittsburgh, Pennsylvania 15222
                                                Attorney for Appellant

             No. 03-1278                 RONALD D. BARBER, ESQUIRE
                                         (ARGUED)
                                         Strassburger, McKenna, Gutnick &
                                         Potter
      DOMENIC J. CURINGA,                322 Boulevard of the Allies, Suite 700
                     Appellant           Pittsburgh, Pennsylvania 15222
                                                Attorney for Appellees
                   v.

      CITY OF CLAIRTON;                         OPINION OF THE COURT
 GEORGE ADAM SON, City Council
  Member, in his individual capacity;
  THOM AS MEADE, City Council            SCIRICA, Chief Judge.
  Member, in his individual capacity;
 DOMENIC VIRGONA,City Council                    At issue is whether a city council
  Member, in his individual capacity     lawf ully d ismiss ed it s p r i n ci p al
                                         policymaking employee who campaigned
                                         against winning councilmanic candidates
                                         in a primary election. The City of Clairton
         On Appeal from the              fired its municipal manager, Dominic
  United States District Court for the   Curinga, after he campaigned against an
   Western District of Pennsylvania      incumbent city council member who won
  D.C. Civil Action No. 00-cv-00907      re-election and against another successful
    (Honorable Robert J. Cindrich)       councilmanic candidate. Curinga asserts
                                         the city council’s decision to terminate him
                                         violated his First Amendment right to
                                         speak freely on a matter of public concern.
         Argued July 31, 2003            Summary judgment was granted for
                                         defendants. We will affirm.1
   Before: SCIRICA, Chief Judge,
RENDELL and AMBRO, Circuit Judges
                                            1
                                             We exercise appellate review over the
       (Filed February 4, 2004)          entry of summary judgment under 28
                                         U.S.C. § 1291. Our standard of review is
                                         plenary. Morton Int’l, Inc. v. A.E. Staley
                     I.                         year. His employment contract allowed at-
                                                will termination.
       In August 1997, Dominic Curinga
was appointed municipal manager of the                  In 1999, while employed as
City of Clairton, Pennsylvania. Prior to        municipal manager, Curinga ran for the
this appointment, Curinga had served two        position of District Justice as an “Action
terms on the Clairton City Council and one      Team” Democrat. The “Action Team”
term as its mayor. The city council, which      ticket ran against the “regular” Democratic
included Mayor Dominic Serapiglia and           Party’s ticket in the primary election. The
four council members, voted 4-1 in favor        “regular” party’s endorsed ticket included
of Curinga’s appointment as municipal           City Councilman incumbent George
manager.      Curinga and all council           Adamson and candidate Dominic Virgona,
members were members of the Democratic          who was challenging incumbent City
Party.                                          Councilwoman and “Action Team”
                                                Democrat Ruth Pastore.
       Curinga was responsible to the city
council “for the administration of all                 In his deposition, Curinga admitted
municipal affairs placed in the Manager’s       speaking out during the primary election
charge.” Curinga described his position as      campaign in favor of Pastore and against
“run[ning] the day-to-day business              Adamson and Virgona. At one point in the
operations of the city.” In this capacity, he   primary campaign , all Demo cratic
oversaw all city departments and                candidates were present at a roundtable
supervised and managed all city                 question and answer session of a “Meet the
employees, including the finance director,      Candidates” forum sponsored by the First
public safety director, public works            AME Church of Clairton. During the
director, fire chief and police chief.          session, a member of the audience
Curinga also implemented city council           questioned Curinga about alleged racial
decisions in various departments within         discrimination at the Sons of Columbus, an
the municipality. He had the power to           Italian ethnic heritage organization to
appoint, suspend, or remove all municipal       which Curinga and other candidates
employees and administrative unit heads         belonged. The audience member asked,
with the advice and consent of the council.     “How could you say you are going to be a
Curinga received a salary of $39,000 per        fair magistrate when you’re a member of
                                                an organization, a club, that does not allow
                                                blacks admittance[?]” Curinga was upset
                                                that two other club members present at the
Mfg. Co., 343 F.3d 669, 679 (3d Cir.
                                                forum, Virgona and Curinga’s opponent
2003). A motion for summary judgment is
                                                for District Justice, Armand Martin, failed
properly granted when the record reveals
                                                to come to the club’s defense.
no genuine issue of material fact, and the
movant is entitled to judgment as a matter             The incident prompted Curinga to
of law. Id. at 680.
write “An Open Letter to the Membership             association with our organization.
of the Sons of Columbus, Clairton:”                 Elect:          Domenic         J.
                                                    Curinga—District Justice; Ruth
              This forum was attended by
                                                    Pastore—Council; . . . .
      a majority of African-American
      citizens.     During the question      (emphasis in original). The letter was
      period of the forum, the audience      signe d by “ The ‘A ction Tea m ’
      began to question President            Democrats.” Curinga admits he wrote the
      Curinga as to why African-             letter.
      American people are not permitted
                                                      Following the letter’s distribution to
      to join the Sons of Columbus. You,
                                             the membership, the Sons of Columbus
      the members of the Sons of
                                             expelled Virgona from the club. Virgona
      Columbus should know that
                                             later stated that this letter and the resulting
      Domenic Virgona and Armand
                                             expulsion damaged his relationship with
      Martin both stood back and were
                                             Curinga: “I was highly upset [about the
      ashamed to admit that they are
                                             letter] . . . [because Curinga] was attacking
      members of our organization. Why
                                             me and I wasn’t running against him. But
      did they just step back? Why didn’t
                                             he had a purpose for attacking me that if
      they help to explain that our
                                             Ruth Pastore won, he was sure that his job
      organization is an ethnic society,
                                             still existed.” Virgona also explained,
      promoting our Italian heritage?
                                             “[t]his letter did it all. And then after that,
      Instead, these two members were
                                             I mean we were having arguments all
      aligned with the people sponsoring
                                             through, at every meeting of the Sons of
      the forum, in an attempt to present
                                             Columbus.”
      a negative impression on [sic] the
      A frican-American people in                   During his campaign for District
      attendance about our organization      Justice, Curinga took off eleven weeks
      and our heritage.                      from work with pay, claiming he deserved
                                             “comp time” because of his prior
             An appeal is made to all
                                             attendance at evening and weekend city
      members of the Sons of Columbus
                                             meetings. The city council never approved
      in Clairton, to NOT remember
                                             this use of “comp time.”
      these two members on Election
      Day. The same way that they did               On May 18, 1999, Curinga lost to
      not remember they were members         Martin in the District Justice primary
      of our organization at the forum.      election. Adamson was re-elected and
                                             Pastore lost her seat on the city council to
             It is up to you, the
                                             Virgona. Thus the “regular” Democratic
      membership, to vote and support
                                             Party candidates prevailed over the
      people that our [sic] proud of their
                                             “Action Team” Democrats and the balance
      Italian heritage and of their
                                             of power in the city council shifted to the
“regular” Dem ocratic                  Party      problems. Taking the facts in the light
representatives.                                  most favorable to Curinga, we assume he
                                                  was fired because of his political speech,
       In the summer of 1999, Curinga and
                                                  including the Sons of Columbus letter.
two other defeated candidates filed an
election challenge in the Court of                         Curinga brought suit under U.S.
Common Pleas of Allegheny County. The             Const. amend. I and 42 U.S.C. § 1983
court dismissed the lawsuit, noting it was        against the City of Clairton and the three
“grossly insufficient procedurally and            council members who voted for his
substantively.” Pastore et al. v. Virgona et      termination, claiming the Clairton City
al., GD 99-8592 (C.P. Allegheny Cty., July        Council had retaliated against him for
2 2 , 1 9 9 9).     T h e P e n n s yl v a n ia   exercising his right to free speech in
Commonw ealth Court dismissed a                   writing the Sons of Columbus letter and
subsequent appeal because petitioners             for filing the election fraud lawsuit. In a
failed to provide notice to defendants.           Repo rt and Recommend ation, the
Pastore et al. v. Virgona et al., 741 A.2d        Magistrate Judge recommended summary
256 (Pa. Commw. Ct., Oct. 21, 1999).              judgment for all defendants. The District
                                                  C o u r t a d opted the R epor t a n d
       On January 3, 2000, the new city
                                                  Recommendation.           Curinga timely
council met a nd term inated the
                                                  appealed.
employment contracts of the municipal
manager and municipal solicitor. Council                               II.
members Adamson, Thomas Meade, and
                                                                       A.
Virgona voted in favor of Curinga’s
termination, while Mayor Serapiglia and                  This matter falls at the intersection
Councilman Terry Lee Julian voted                 of two separate First Amendment
against.                                          doctrines: freedom of speech and freedom
                                                  of association. Both are implicated when
        According to council minutes, the
                                                  a high-level government employee speaks
newly appointed municipal solicitor stated
                                                  out against his public employer during an
that the city council fired Curinga because
                                                  election campaign. Wilbur v. Mahan, 3
he violated the Home Rule Charter by
                                                  F.3d 214, 215 (7th Cir. 1993). The First
campaigning on city time and using
                                                  Amendment protects an employee who
taxpayer money to fund his campaign.
                                                  speaks out on a matter of public concern,
Reasons for Curinga’s termination cited in
                                                  so long as the employee’s interests
the council members’ depositions included
                                                  outweigh the government’s interest in
campaigning on city time; excessive
                                                  efficient operations. At the same time,
absences during the campaign; the lawsuit
                                                  public officials may be able to terminate a
alleging election fraud; a conviction for
                                                  policymaking employee on the basis of
driving under the influence of alcohol; the
                                                  political affiliation and conduct, regardless
Sons of Columbus letter; and interpersonal
                                                  of freedom of association rights. While
this case implicates both doctrines, the               At the same time, the government
result here is the same, because the public    has an interest in regulating the speech of
employer’s interest is especially strong.      its employees to promote “efficiency and
                                               integrity in the discharge of official duties,
       Although there has been little
                                               and [in maintaining] proper discipline in
disparity in application and outcome, the
                                               the public service.” Connick, 461 U.S. at
various courts of appeals have divided
                                               150-51.2 These interests must be balanced
over whether to employ an analysis based
                                               against the employee’s interest in
on freedom of speech or on freedom of
                                               addressing matters of public concern and
association. In cases such as these, under
                                               enabling the electorate to make informed
both doctrines, the outcome is likely to be
                                               decisions. 391 U.S. at 572.
the same. Nevertheless, we believe that in
most cases, where a confidential or policy            The Pickering balancing test
making employee engages in speech or           considers “whether the statement impairs
conduct against his public employer, the       discipline by superiors or harmony among
better analytical approach is found under      co-workers, has a detrimental impact on
the freedom of speech doctrine.                close working relationships for which
                                               personal loyalty and confidence are
                    B.
                                               necessary, or impedes the performance of
        Public employees have a First          the speaker’s duties or interferes with the
Amendment right to speak freely on
matters of public concern. See, e.g., Perry
                                                  2
v. Sindermann, 408 U.S. 593, 597 (1972);          Justice Powell elaborated:
Pickering v. Board of Educ., 391 U.S. 563,            To this end, the Government, as an
571-72 (1968), (teacher’s speech against              employer, mu st hav e w ide
school board is protected as a matter of              discretion and control over the
public concern); Watters v. City of                   management of its personnel and
Philadelphia, 55 F.3d 886, 891 (3d Cir.               internal affairs. This includes the
1995) (“judicial vigilance is required to             prerogative to remove employees
ensure that public employers do not use               whose conduct hinders efficient
their authority to silence discourse on               operation and to do so with
matters of public concern simply because              dispatch. Prolonged retention of a
they disagree with the content of the                 d i s r u p ti v e or oth e r w i s e
employee’s speech.”).        But there is             unsatisfactory emp loyee can
protection only for speech in matters of              adversely affect discipline and
public concern, Connick v. Myers, 461                 morale in the work place, foster
U.S. 138, 146 (1983), and that which is not           disharmony, and ultimately impair
likely to disrupt the efficient operation of          the efficiency of an office or
the workplace. Pickering, 391 U.S. at 568.            agency.
                                               Arnett v. Kennedy, 416 U.S. 134, 168
                                               (1974) (Powell, J., concurring in part).
regular operation of the enterprise.”           insure the efficiency of the public
Rankin v. McPherson, 483 U.S. 378, 388          workplace, stating that “mere political
(1987). The test also takes into account        association is an inadequate basis for
the extent of authority entailed in the         imputing disposition to ill-willed conduct.”
employee’s position. Id. at 390.                Id. at 364-65.
        In a public employee’s retaliation                At the same time, the Court in
claim for engaging in protected activity,       Elrod allowed dismissals based on
there are three factors to consider. First,     political affiliation for “policymaking”
the employee must demonstrate that the          positions. Policymaking employees with
speech involves a matter of public concern      dif f e r ent politic al affiliations o r
and the employee’s interest in the speech       orientations could thwart the will of the
outweighs the government employer’s             electorate and block the implementation of
countervailing interest in providing            new policies. Id. at 367. Those who were
efficient and effective services to the         not “policymakers” were “not in a position
public. Pro v. Donatucci, 81 F.3d 1283,         to thwart the goals of the in-party” and
1288 (3d Cir. 1996). Next, the speech           were protected. Id. The Court refined the
must have been a substantial or motivating      policymaker exception four years later in
factor in the alleged retaliatory action.       Branti v. Finkel, 445 U.S. 507 (1980),
Baldassare v. New Jersey, 250 F.3d 188,         holding “the ultimate inquiry is not
194-95 (3d Cir. 2001); Green v. Phila.          whether the label ‘policymaker’ or
Hous. Auth., 105 F.3d 882, 885 (3d Cir.         ‘confidential’ fits a particular position;
1997). Finally, the employer can show           rather the question is whether the hiring
that it would have taken the adverse action     authority can demonstrate that party
even if the employee had not engaged in         affiliation is an appropriate requirement
protected conduct. Pro, 81 F.3d at 1288.        for the effective performance of the public
The second and third factors are questions      office involved.” Id. at 518.
of fact, while the first factor is a question
                                                       This court has considered factors
of law. Id.
                                                that might lead to an Elrod exception. The
        More than twenty five years ago,        determining test in Ness v. Marshall was
the Supreme Court set forth a separate          whether a difference in party affiliation
an alys is for p olitically mo tivated          was “highly likely to cause an official to
discharges of public employees. In Elrod        be ineffective in carrying out” his duties.
v. Burns, 427 U.S. 347 (1976), the Court        660 F.2d 517, 521 (3d Cir. 1981). In
restricted the dismissal of public              Brown v. Trench, we held a key factor was
employees for partisan reasons to protect       whether the employee has “meaningful
the employees’ freedom of political belief      input into decisionmaking concerning the
and association. 427 U.S. at 357-58             nature and scope of a major township
(Brennan, J., plurality opinion). The Court     program.” 787 F.2d 167, 168 (3d Cir.
also restricted the use of patronage to
1986). 3 See also Zold v. Township of           1995); Williams v. City of River Rouge,
Mantua, 935 F.2d 633 (3d Cir. 1991)             909 F.2d 151, 153 n.4 (6th Cir. 1990).
(applying the Branti test to determine          These courts have upheld terminations
whether party affiliation is an appropriate     under Elrod-Branti of policymaking
requirement for the effective performance       employees who open ly suppo rted
of the duties of the public office).            campaigns against their current or
                                                subsequently elected employer. Kaluczky,
        Elrod has been traditionally applied
                                                57 F.3d at 204-05; Williams, 909 F.2d at
to terminations based on an employee’s
                                                153-54.
different political affiliation. Members of
the same party are presumed to share                   So the Supreme Court has
common interests and goals, and patronage       apparently crafted two methods of
appointments usually come from the same         analyzing First Amendment claims
party as the elected official. Hall v. Ford,    depending on the constitutional rights
856 F.2d 255, 263 (D.C. Cir. 1988). But         implicated – the right of free speech
identical party affiliation does not            (addressed by the Pickering balancing test)
necessarily ensure the subordinate’s loyal      and the right of political affiliation
adherence to the superior’s policies.           (addressed by Elrod/Branti). But, as
Primary election fights can be famously         noted, Pickering and Elrod may easily
brutal, sometimes more so than contests in      overlap in situations involving campaign
the general election, and animosity             speech against one’s public employer.
between candidates is likely to result. See
                                                                      C.
Robertson v. Fiore, 62 F.3d 596, 600 (3d
Cir. 1995); Wilbur, 3 F.3d at 219.                      The Supreme Court has not yet
Recognizing this, other courts of appeals       directly confronted a situation where a
have broadened the definition of “political     policymaker is terminated both for
affiliation” to include commonality of          political affiliation and speech.        The
political purpose, partisan activity, and       District Court here applied the Pickering
political support. See Kaluczky v. City of      balancing test to the Sons of Columbus
White Plains, 57 F.3d 202, 208 (2d Cir.         letter and the election fraud lawsuit, citing
                                                O’Hare Truck Service, Inc. v. City of
                                                Northlake, 518 U.S. 712, 718-20 (1996).4
    3
      Brown listed specific factors in this
determination, including “whether the
                                                   4
employee participates in . . . discussions or          The Court in O’Hare stated:
other meetings, whether the employee                            Our cases call for a
prepares budgets or has authority to hire or             different, though related, inquiry
fire employees, the salary of the employee,              where a government employer
and the employee’s power to control others               takes adverse action on account of
and to speak in the name of policymakers.”               an employee or service provider’s
787 F.2d at 169.                                         right of free speech. There, we
                                         But the plaintiff in O’Hare was not a
                                         policymaking or confidential employee.
                                         See Rose v. Stephens, 291 F.3d 917, 921
apply the balancing test from
                                         (6th Cir. 2002). Nonetheless, O’Hare
Pickering . . . Elrod and Branti
                                         implied that Pickering balancing should be
involved instances where the raw
                                         used when termination is motivated by
test of political affiliation sufficed
                                         both a public employee’s speech and
to show a constitutional violation,
                                         political affiliation:
without the necessity of an inquiry
more detailed than asking whether               A reasonableness analysis will also
the requirement was appropriate for             accommodate those many cases,
the employment in question. There               perhaps including the one before
is an advantage in so confining the             us, where specific instances of the
inquiry where political affiliation             employee’s speech or expression,
alone is concerned, for one’s                   which require balancing in the
beliefs and allegiances ought not to            Pickering context, are intermixed
be subject to probing or testing by             w ith a politic a l a f f iliation
the government. It is true, on the              requirement. In those cases, the
other hand, as we stated at the                 balancing Pickering mandates will
outset of our opinion, supra, at 714,           be inevitable.
that the inquiry is whether the
                                         518 U.S. 712, 719-20 (1996). Not only the
affiliation requirement is a
                                         balancing, but the outcome as well, may be
reasonable one, so it is inevitable
                                         inevitable because the public employer’s
that some case-by-case adjudication
                                         interest may weigh so heavily that no other
will be required even where
                                         outcome is possible.5 The speech may
political affiliation is the test the
government has imposed.             A
reasonableness analysis will also                requires in the administration and
accommodate those many cases,                    awarding of contracts over the
perhaps including the one before                 whole range of public works and
us, where specific instances of the              the delivery of governmental
employee’s speech or expression,                 services.
which require balancing in the           Id. at 719-20 (citation omitted).
Pickering context, are intermixed
                                            5
with a politica l affiliation                For this reason, the Court of Appeals
requirement. In those cases, the         for the Sixth Circuit recently held that
balancing Pickering mandates will        “where a confidential or policymaking
be inevitable. This case-by-case         public employee is discharged on the basis
process will allow the courts to         of speech related to his political or policy
consider the necessity of according      views, the Pickering balance favors the
to the government the discretion it      government as a matter of law.” Rose, 291
adversely affect the public employer’s          p o l i ti c a l l y l o y a l e m p l o y e e s t o
ability to effectively run its operations and   policymaking positions converges with its
accomplish its objectives. At the same          interest in running an efficient workplace.
time, the speech may impair the public
                                                                        D.
employer’s ability to implement policies
through loyal subordinates. Hall, 856 F.2d              To establish a First Amendment
at 263.                                         violation under Pickering, Curinga must
                                                demonstrate that his speech involved a
           In these situations, it may be
                                                matter of public concern, and that his
difficult to distinguish where the efficient
                                                interest in the speech outweighs any
functioning of the government workplace
                                                poten tial disruption of the work
ends and the employee’s loyalty and ability
                                                environment and decreased efficiency of
to implement the public employer’s
                                                the office. Curinga openly campaigned
policies begins. See McEvoy v. Spencer,
                                                against the “Regular Team” Democrats by
124 F.3d 92, 99 (2d Cir. 1997). In this
                                                writing the Sons of Columbus letter and
sense, Elrod considerations of fidelity may
                                                urging members of the organization to
easily converge with the government’s
                                                vote for his ticket and against his
interest in managing an efficient
                                                opponents.     His speech and conduct
workplace under the Pickering spectrum.
                                                involved a matter of public concern.6 See
See, e.g., Kinsey v. Salado Indep. Sch.
                                                Green, 105 F.3d at 885-86 (“A public
Dist., 950 F.2d 988, 994 (5th Cir. 1992)
                                                employee’s speech involves a matter of
(en banc) (“[C]ases involving public
                                                public concern if it can be ‘fairly
employees who occupy policymaker or
                                                considered as relating to any matter of
confidential positions fall much closer to
                                                political, social or other concern to the
the employer’s end of the spectrum, where
                                                community’”) (citations omitted). See also
the government’s interests more easily
                                                Bass v. Richards, 308 F.3d 1081, 1088-89
outweigh the employee’s (as a private
                                                (10th Cir. 2002) (holding that speech
citizen).”); Hall, 856 F.2d at 263 (“Given
                                                regarding political elections involves a
the similarity in the bases and
                                                matter of public concern); Brady v. Fort
countervailing interests recognized in
                                                Bend County, 145 F.3d 691, 706-07 (5th
P i c k e rin g and E lrod-B ranti, the
                                                Cir. 1998) (stating that campaigning for a
government interest recognized in the
affiliation cases is also relevant in the
employee speech cases.”).               The
                                                         6
government’s interest in appointing                      The District Court found that
                                                Curinga’s letter addressed only a matter of
                                                personal concern. We disagree. The letter
F.3d at 921. Whether or not this can be         contained a mixture of personal and public
decided as a matter of law, the                 matters. For our purposes, however, there
government’s interest in these kinds of         was sufficient content of public concern to
cases is likely dispositive.                    warrant consideration under Pickering.
political candidate relates to a matter of                 Nor can Curinga prevail under
public concern); Gardetto v. Mason, 100         Elrod-Branti. The District Court held that
F.3d 803, 812 (10th Cir. 1996) (“In the         political “affiliation” was a reasonable
spectrum of expression protected by the         requirement for Curinga’s position. We
First Amendment, we place great value           agree. The duties of the city manager
upon political speech in the electoral          required the management of all city
process.”).                                     departments, hiring and firing city
                                                employees, representing the city at
       But Curinga cannot establish that
                                                meetings, and implementing policies
his interest in speech outweighed the
                                                promulgated by the city council. No non-
government’s interest in efficiency. See
                                                elective position in the City of Clairton
Baldassare, 250 F.3d at 195; Swineford v.
                                                c a r r i e d g r e a te r p o li c y m a k i n g
Snyder County, 15 F.3d 1258, 1280 (3d
                                                responsibility.        Because of Curinga’s
Cir. 1994). Curinga’s campaign against
                                                conduct, the “regular” Democratic council
the candidates who won the election
                                                members had good reason to doubt
impaired the reconstituted city council’s
                                                whether they could rely on him to follow
interest in efficient operations. The record
                                                and implement their policies, or whether
strongly supports this conclusion. As
                                                he would instead “obs truct[] th e
noted, Curinga occupied the most
                                                implementation of policies of the new
sensitive, high-level policy making
                                                administration, policies presumably
appointive position in the City of Clairton,
                                                sanctioned by the electorate.” Elrod, 427
one that required confidentiality and a
                                                U.S. at 367. For these reasons, Curinga’s
close working relationship with city
                                                policy making responsibilities exempt him
council members to effectively implement
                                                from Elrod/Branti protections generally
their policies. Under this set of facts, the
                                                afforded to patronage dismissals.
strong government interest outweighs the
employee’s speech. Pickering, 391 U.S. at              Curinga, therefore, cannot prevail
581.7                                           under either constitutional doctrine.
                                                Although in this case the outcome will be
                                                the same, we believe the dispositive
   7
    As noted, defendants provided several       analysis should fall under the Pickering
reasons for terminating Curinga, including      balancing standard.8
Curinga’s prior DUI conviction; his job
performance and track record as City
Manager; his excessive absences during          of Clairton.” The District Court believed
the campaign; the Sons of Columbus              the Sons of Columbus letter provided the
letter; his suit alleging election fraud; and   p r i n c ip a l mo tiv ation b ehin d th e
the desire of the city council to retain a      termination.
City Manager “more acceptable and
                                                    8
compatible with their policies, beliefs,            As noted, the other courts of appeals
desires, and aims for the future of the City    have taken somewhat different approaches
                                                                  III.
                                                      To summarize, the Clairton City
to similar fact situations. The Fifth, Tenth   Council did not unlawfully terminate
and Eleventh Circuits have applied the         Curinga for stumping for the “Action
Pickering test when a policymaker speaks       Team” Democrats and against the
against his employer during an election        “regular” Democratic candidates.
campaign. See Kinsey, 950 F.2d at 994-96       Although the result is likely to be the
(5th Cir. 1992) (upholding the termination
under Pickering of a school district
superintendent for vocally opposing school     opposed her employer’s party and
board members); Kent v. Martin, 252 F.3d       endorsed candidates from an opposing
1141, 1142-43 (10th Cir. 2001) (applying       party); Kaluczky, 57 F.3d at 204-05 (2d
Pickering to analyze the termination of a      Cir. 1995) (upholding demotion of
deputy clerk who unsuccessfully ran            personnel officer under Elrod for actively
against the county clerk); Stough v.           endorsing mayor who was not re-elected);
Gallagher, 967 F.2d 1523, 1528-29 (11th        Williams, 909 F.2d at 153-54 (6th Cir.
Cir. 1992) (finding deputy sheriff’s           1990) (upholding termination of city
demotion for supporting political opponent     attorney under Elrod for distributing
of sheriff violated deputy sheriff’s First     campaign literature that criticized a
Amendment rights under Pickering).             subsequently elected member of city
       The First, Second, Sixth, and           council); Heideman v. Wirsing, 7 F.3d
Seventh Circuits have upheld terminations      659, 662 (7th Cir. 1993) (upholding
or other disciplinary measures taken by the    suspension and termination under Elrod of
government under the Elrod/Branti              a deputy sheriff who actively campaigned
exception when an employee speaks out          against the subsequently elected sheriff);
against his employer during an election        Wilbur, 3 F.3d 214, 217-18 (7th Cir. 1993)
campaign. See Rosenberg v. City of             (upholding under Elrod unpaid leave for
Everett, 328 F.3d 12, 17-18 (1st Cir. 2003)    deputy sheriff who announced his
(upholding termination of television           candidacy for office against the current
station director by current mayor under        sheriff). The Ninth Circuit allows for
Elrod because the director allowed the         disciplinary action against policymakers
former mayor to submit his candidacy           for any type of speech under Elrod,
videotape after the station’s established      including speech not related to policy
deadline, creating a perceived lack of         views or a political agenda. Fazio v. City
political support for the current mayor);      & County of San Francisco, 125 F.3d
Regan v. Boogertman, 984 F.2d 577, 581-        1328, 1332 (9th Cir. 1997) (upholding
82 (2d Cir. 1993) (holding that the            termination under Elrod of assistant
dismissal of a public employee for             district attorney who filed papers to run
“partisan political reasons” was allowable     against district attorney in upcoming
under Elrod when the employee actively         election).
same under Elrod and Pickering, when
an employee’s speech is intermixed with
political affiliation, the Pickering
balancing standard is the better analysis
to apply. Because the City of Clairton’s
interest in efficient management strongly
outweighs Curinga’s interests, his
political speech in this case is not
protected under Pickering.
                   IV.
       For the reasons stated, we will
affirm the grant of summary judgment
for defendants.
