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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br>No. 97-1076 <br> <br>                KEVIN N. FLYNN AND RANDY WOLFSON, <br>                                  <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                     CITY OF BOSTON, ET AL., <br>                                  <br>                      Defendants, Appellees. <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br>                       ____________________ <br> <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br> <br>John R. Gibson, Senior Circuit Judge, <br> <br>and Pollak, Senior District Judge. <br>                      _____________________ <br> <br>    Mark S. Bourbeau, with whom Liam C. Floyd and Bourbeau & <br>Bourbeau, Bonilla, Tocchio & Floyd, LLP were on brief for <br>appellants. <br>    Mary Jo Harris, with whom Kopelman and Paige, P.C. was on <br>brief for appellees. <br> <br> <br> <br>                                 <br>                                 <br>                          May 12, 1998 <br>                                 <br>                                 <br>                                 <br>  BOUDIN, Circuit Judge.  Kevin Flynn and Randy Wolfson <br>appeal from the district court's grant of summary judgment in favor <br>   of the defendants in their action alleging that they were <br>  discharged from their jobs with Boston Community Centers in <br> violation of the First Amendment.  Their former employer is an <br>agency of the City of Boston with 400 employees and a budget of $15 <br>million.  It is concerned with the delivery of social services, <br>including child care, youth work, and senior citizen programs, and <br>it administers grants both from city funds and from other sources. <br>        In January 1994, the newly elected mayor of Boston <br>    appointed Evelyn Riesenberg, formerly one of his special <br>assistants, as the director of Boston Community Centers.  Kevin <br>  Flynn was then the associate director of administration and <br>finance; Randy Wolfson was one of two associate directors for field <br>operations.  In their later filed court papers, Flynn and Wolfson <br>    describe Riesenberg's reign in very unflattering terms. <br>         In particular, they charge that from the outset, <br>Riesenberg pressed Wolfson to tell her which senior staff members <br>had worked for particular mayoral candidates; and Flynn says that <br>Riesenberg asked him how she could fire the entire central office <br> staff and replace them with her own supporters or those of the <br> mayor.  Both say that they argued with Riesenberg against this <br>                       course of action. <br>         They also say that Riesenberg sought, over their <br>opposition, to appoint unqualified personnel to reward supporters <br>of the mayor, and they provide specific examples.  Flynn says that <br>Riesenberg ordered him to raise pay for a union worker in violation <br>of the union contract.  Flynn and Wolfson also say that Riesenberg <br>  mishandled several sexual harassment complaints and related <br>          personnel actions, despite their objections. <br>        In August 1994, Riesenberg gave Flynn and Wolfson <br>  termination notices, asserting that she was reorganizing the <br>agency.  When they protested, the city's corporation counsel wrote <br>     to them that they were being discharged because of the <br>reorganization and "an evaluation of their performance."  Flynn and <br>Wolfson in turn say that the reorganization was a sham and that <br>   neither of them has any negative evaluations in his or her <br>                        personnel files. <br>     After Flynn and Wolfson were fired, they brought suit in <br>the district court against Riesenberg, the mayor, and the city.  <br>  The plaintiffs sought declaratory and injunctive relief, and <br> damages under 42 U.S.C.  1983, on the ground that their First <br>Amendment rights had been infringed; they also made statutory and <br>  common law claims based on state law.  After discovery, the <br>plaintiffs waived some claims, and the district court dismissed or <br> granted summary judgment in favor of defendants on all of the <br>                       remaining claims. <br>       On summary dispositions, we take the facts and draw <br> inferences in favor of the non-moving party.  Ortiz-Piero v. <br>Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir. 1996).  But the question <br>whether a position is subject to political discharge, or how far <br>the First Amendment protects against having one's views considered <br>in adverse personnel actions, are essentially legal questions for <br>the court, even if they are close questions.  McGurrin Ehrhard v. <br>           Connolly, 867 F.2d 92, 93 (1st Cir. 1989). <br>      From the outset of the Republic, government jobs have <br>gone by political patronage, tempered now by civil service laws <br>that afford varying degrees of protection, especially to lower <br>level employees.  See Elrod v. Burns, 427 U.S. 347, 377-79 (1976) <br>(Powell, J., dissenting).  To this accommodation, the Supreme Court <br>about 25 years ago brought a new constitutional principle:  that <br>political firings by the government are allowed only in those jobs <br>for which political loyalty is an "appropriate" criterion.  SeeElrod v. Burns, 427 U.S. 347, 372-73 (1976); Branti v. Finkel, 445 <br>U.S                    . 507, 518 (1980). <br>       In response, the lower federal courts have tried to <br>   develop doctrine, but it is largely a porridge of general <br>   statements and variables:  positions are less likely to be <br>protected to the extent that they are "higher," more "political," <br>  more "confidential," and so on; duties prevail over titles;  <br> everything depends on circumstances.  See, e.g., Cordero v. De <br>Jesus-Mendez, 867 F.2d 1, 10-21 (1st Cir. 1989); see also 4 R.D. <br>Rotunda & J.E. Nowak, Constitutional Law:  Substance and Procedure 20.42, at 272-75 (2d ed. 1992).  To get any practical sense of <br>where the lines have been drawn, one has to look at the results.  <br>See Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241 (1st <br>Cir. 1986) (en banc) (collecting cases), cert. denied, 481 U.S. <br>                          1014 (1987). <br>     At least in the First Circuit, the cases have regularly <br>upheld against First Amendment challenge the dismissal on political <br> grounds of mid- or upper-level officials or employees who are <br>significantly connected to policy-making.  This result has followed <br>   where the plaintiff merely represented the agency's policy <br>positions to other entities or to the public or where important <br>  personnel functions were part of the portfolio.  See, e.g., <br> Cordero, 867 F.2d at 11-12, 14.  The common thread is that the <br>officials or employees were policymakers or those who are in close <br>            working relationships with policymakers. <br>    Thus, we have upheld political discharges of the regional <br>director of an administrative agency, the municipal secretary in a <br>mayor's office, an officer in charge of human resources, a director <br>of public relations, a superintendent of public works, a director <br>of a city's federal programs office, and a director of a satellite <br>office of the Massachusetts Secretary of State.  Many such <br>plaintiffs were subordinates within their own offices.  Just one <br>decision provisionally protected an official with a high-sounding <br>title, but her duties were essentially technical.  See De Choudensv. Government Dev. Bank of Puerto Rico, 801 F.2d 5, 9-10 (1st Cir. <br>1986), cert. denied, 481 U.S. 1013 (1987).  <br>     By contrast, this court has disallowed political firings <br>for a cleaning supervisor, a career employee administrative aide, <br>and an auditor of books and records.  See Cordero, 867 F.2d at 14- <br>15, 16-18.  The Supreme Court cases, granting or looking toward <br>protection, have involved a floor supervisor, a guard, a process <br>server, an assistant public defender, a rehabilitation counselor, <br>a road equipment operator, a garage worker, and a dietary manager.  <br>See Elrod, 427 U.S. at 350-51, 372-73; Branti, 445 U.S. at 508, <br>519-20; Rutan v. Republican Party, 497 U.S. 62, 67, 76 (1990). <br>Thus, it is primarily low-level jobs that have been protected, <br>although this encompasses most workers in most agencies of <br>government. <br>     "Appropriate"--the test used in Branti--is an elastic <br>concept, but we have an obligation to apply it consistently within <br>the circuit.  Under our prior decisions, Flynn is not protected.  <br>As associate director of administration and finance at Boston <br>Community Centers, he had authority over human resource issues, <br>supervision of the grants managers and personnel director, labor <br>negotiations, and liaison responsibilities with a number of city or <br>state agencies.  See Cordero, 867 F.2d at 11-15; cf. Goyco, 849 <br>F.2d at 685.  These major responsibilities meant that policy <br>disagreements with his politically appointed supervisor could lead <br>to less effective implementation of political goals. <br>     Wolfson is a closer case, but not by much--given the <br>standards of prior cases.  She was associate director for field <br>operations and supervised about half the site coordinators, oversaw <br>several programs, served as liaison with two city agencies, <br>oriented new local council members, and monitored compliance with <br>legal requirements.  Cf. Nunez, 834 F.2d at 24.  Like Flynn, <br>Wolfson reported directly to the executive director of the agency <br>and so represented top management in an agency with 400 employees.  <br>     The responsibilities of Flynn and Wolfson just described <br>--and these are functions, not titles--obviously implicate policy.  <br>Indeed, they are the same kind of senior management functions that <br>our earlier decisions have ascribed to a number of employees found <br>to be subject to political discharge.  For example, Cordero, 867 <br>F.2d at 13-14, upheld the dismissal of a municipality's director of <br>finance, whose primary tasks included supervision of the accounting <br>system, advising officials on fiscal matters, and supervising the <br>disbursement of municipality funds.  And in McGurrin Ehrhard, 867 <br>F.2d at 93-95, we sustained the dismissal of the director of the <br>Massachusetts Secretary of State's satellite office, whose job <br>consisted essentially of providing information to citizens, "input" <br>into personnel issues, and development of office policies. <br>     Under our decisions, an employee is not immune from <br>political firing merely because the employee stands apart from <br>"partisan" politics, see Mendez-Palou, 813 F.2d at 1262-63, or is <br>not the ultimate decisionmaker in the agency, see McGurrin Ehrhard, <br>867 F.2d at 95, or is guided in some of his or her functions by <br>professional or technical standards, see Cordero, 867 F.2d at 13- <br>14.  Rather, it is enough that the official be involved in policy, <br>see Jimenez Fuentes, 803 F.2d at 6, even if only as an adviser, <br>implementer, or spokesperson, as Flynn and Wolfson certainly were.  <br>To hold Flynn and Wolfson to be protected would effectively depart <br>from the main line of case law in this circuit. <br>     One might ask why anyone, apart from elected officials, <br>should be subject to "political" firing.  The answer--this is folk <br>wisdom, not mathematical proof--is that to implement their <br>mandates, elected officials need a cadre of agency leaders  and top <br>subordinates responsive to the elected officials' goals.  See, <br>e.g., Elrod, 427 U.S. at 367.  A rule effectively preventing the <br>replacement of senior officials by new administrations would be a <br>very serious step.  A legislature can provide such tenure, but the <br>Constitution does not command it. <br>     None of this means that every "political" firing of a <br>senior official is an act of good government.  Indeed, if the <br>allegations of the complaint are true, and they are still only <br>allegations, Flynn and Wolfson were public servants honestly <br>resisting very dubious behavior by a superior.  But the main remedy <br>for mismanagement is elections.  And officials who rise to the <br>level of Flynn and Wolfson do so at the cost of any constitutionaltenure protection against political discharge--unless and until the <br>Supreme Court takes a different view and extends Elrod and Brantifurther. <br>     A different, although related, issue is presented by the <br>plaintiffs' alternative claim that they were fired "in retaliation" <br>for protected speech.  The legal standard in this area is <br>notoriously fuzzy because the cases deal under the same head with <br>very different problems and "justifications," for example, the <br>disruptive employee, the whistle-blower who ignores channels, the <br>official who disagrees about policy, the contractor who offers <br>public political criticism of the agency, and so on. <br>    In the present case, we are not concerned with public <br>expressions of political opposition or whistle-blower reports made <br>publicly or within the agency but outside regular channels.  <br>Rather, the plaintiffs are policy level officials who disagreed <br>with their superior on a number of policy and personnel issues <br>before the agency and (quite properly, based on their allegations) <br>expressed their disagreement to her.  Although Riesenberg denies <br>it, we must suppose (on summary judgment) that plaintiffs could <br>prove at trial that these disagreements contributed to their <br>firing.   <br>    To this extent, the plaintiffs' expression of their views <br>on issues played a role in their loss of position, and we will <br>assume arguendo that the issues upon which Flynn and Wolfson <br>expressed disagreement are the types of matters "of political, <br>social, or other concern to the community" that the Supreme Court <br>has said would trigger First Amendment analysis.  Connick, 461 U.S. <br>at 146.  But expressing views on matters of public concern is only <br>the first step in the Supreme Court's test for whether an employee <br>is protected by the Constitution from being fired for expressing <br>views. <br>    The second step, vital here, is a balancing of the <br>employee's interests "as a citizen, in commenting upon matters of <br>public concern" against "the interest of the State, as an employer, <br>in promoting the efficiency of the public services it performs <br>through its employees."  Pickering, 391 U.S. at 568.  The Supreme <br>Court has identified a number of state interests that might be <br>impaired by an employee's statements (discipline, harmony among co- <br>workers, interference with duties), but one such interest looms <br>large here:  the effect of the statements on those close working <br>relationships for which personal loyalty and confidence are <br>necessary . . . ."  Rankin v. McPherson, 483 U.S. 378, 388 (1987). <br>    In Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988), the <br>District of Columbia Circuit addressed this type of justification <br>in a situation somewhat akin to this case.  In Hall, the University <br>of the District of Columbia's athletic director was fired allegedly <br>due to a disagreement between him and the university's president <br>over the university's compliance with its own and NCAA rules.  The <br>court held initially that the athletic director's statements were <br>about matters of public concern.  It then moved to the second step, <br>as we do in this case.   <br>    Recognizing that the Supreme Court had not yet squarely <br>addressed the situation in free speech terms, the District of <br>Columbia Circuit looked to the political patronage cases for help.  <br>856 F.2d at 261-64.  "Although not directly applicable, the <br>patronage cases address similar concerns and recognize a government <br>interest that is apposite here."  Id. at 261.  Ultimately, the <br>court upheld that the right of the university president to insist <br>on an athletic director who had compatible views on university <br>matters, paralleling the political patronage cases.  See alsoDiMeglio v. Haines, 45 F.3d 790, 805-06 (4th Cir. 1995). <br>    No mechanical formula exists to resolve all cases where <br>an employee is fired and the firing can be traced back in some <br>causal way to "speech" by the employee.  But we think it is a <br>reasonable working rule that, where the employee is subject to <br>discharge for political reasons under the Elrod and Branti cases, <br>a superior may also--without offending the First Amendment's free <br>speech guarantee--consider the official's substantive views on <br>agency matters in deciding whether to retain the official in a <br>policy related position.  Indeed, without this congruence, the <br>latitude allowed to the superior by the Supreme Court could be <br>effectively nullified. <br>    The issues about which Flynn and Wolfson spoke--and the <br>speech to which they attribute their firings--related to the <br>operation of the office (primarily to matters of hiring, firing and <br>discipline).  Yet it is issues of this kind, and the views of <br>management employees about these issues, that are properly <br>considered by the head of the office in deciding who is best suited <br>to be her direct subordinates.  Precisely because Flynn and <br>Wolfson's "speech" did bear on the job and on their working <br>relationship with Riesenberg, Riesenberg was permitted to conclude <br>reasonably that she did not have the necessary trust and confidence <br>to retain them. <br>    In this context, it does not make any difference that <br>Flynn and Wolfson may have been "right," and Riesenberg wrong in <br>the positions urged or taken.  A jury might easily be confused on <br>this point, thinking that a junior official should be praised and <br>not fired for giving sound advice.  But staffing the senior levels <br>of a city agency is the business of the mayor and his appointees, <br>responsible in turn to the electorate, unless a legislature says <br>otherwise. <br>    This does not mean that anything goes for policy-related <br>positions:  this would be a different case if an executive were <br>fired for reporting a crime or fraud or for expressing adherence to <br>one church or another.  Compare O'Connor, 994 F.2d at 915-16.  So, <br>too, the situation would be different if a clerical worker, in a <br>non-disruptive and otherwise proper manner, disagreed about how the <br>agency was doing its job.  If the employee were not at a policy <br>level, it might be hard to see why such criticism would be <br>pertinent to retention. <br>    Further, the lack of a First Amendment claim does not <br>mean that the plaintiffs are without remedy.  The district court <br>dismissed plaintiffs' state-law counts for wrongful discharge and <br>related misconduct, and plaintiffs have appealed.  But absent <br>federal claims, it is not clear why either this court or the <br>district court should be drawn into issues that involve the <br>construction of state statutes and of state common law as applied <br>to regulate the personnel actions of a local governmental unit. <br>    The only jurisdiction in the district court over the <br>state claims was pendent, and the federal claims were dismissed <br>before trial.  Given the subject matter, there is special reason <br>why state judges should referee disagreements about whether and <br>when state or local officials may be fired.  Cf. Pyle v. South <br>Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995).  Where this is <br>so, and where as here there are few economies in a federal court <br>resolution, the better course is ordinarily to dismiss the state <br>claims without prejudice and leave them to local courts.  Cf.Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988). <br>    For the foregoing reasons, the district court's grant of <br>summary judgment in favor of the defendants on the federal claims <br>is affirmed, the district court's grant of summary judgment in <br>favor of the defendants on the state-law claims is vacated, and the <br>case is remanded for dismissal of the state-law claims without <br>prejudice.  Each side shall bear its own costs on this appeal. <br>    It is so ordered. <br> <br>                                Dissent follows.

    JOHN R. GIBSON, Senior Circuit Judge, dissenting.  I <br>respectfully dissent.  In my view, the court today focuses on job <br>title and place in the organizational hierarchy to decide whether <br>a position is subject to a political affiliation requirement.  The <br>majority measures the distance from Wolfson and Flynn to <br>Reisenberg, a policymaker, to determine whether their jobs are <br>political.  Although job title and position are certainly relevant <br>to decide whether a position is political, the court's inquiry does <br>not square with the inquiries directed by the Supreme Court in <br>Branti v. Finkel, 445 U.S. 507, 518 (1980), or this court in <br>O'Connor v. Steeves, 994 F.2d 905, 910 (1st Cir.), cert. denied, <br>510 U.S. 1024 (1993), which require a close examination of the <br>overall functions of the employee's department, as well as the <br>particular responsibilities of the position.   <br>    Indeed, we have emphasized that the appropriateness of <br>making political affiliation a job requirement is not solely <br>determined by either agency hierarchy or the scope of job duties.  <br>"Regardless of the position of an employee within the government <br>hierarchy, or the broad scope of his or her duties, if the employee <br>is responsible only for duties that are measured solely by strictly <br>technical or professional criteria, the job is nonpartisan in <br>nature and not properly a target of patronage dismissal."  Mendez- <br>Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258 (1st Cir. 1987).   <br>    The court today avoids the significance of our en banc <br>decision in De Choudens v. Government Development Bank of Puerto <br>Rico, 801 F.2d 5 (1st Cir. 1986), cert. denied, 481 U.S. 1013 <br>(1987).  De Choudens, a companion case to Jimenez Fuentes v. <br>Torres Gaztambide, 807 F.2d 236 (1st Cir. 1986) (en banc), cert. <br>denied, 481 U.S. 1014 (1987), nonetheless, is controlling.  De <br>Choudens had been Senior Vice-President of Finance at the Puerto <br>Rico Government Development Bank, one of three vice presidents <br>serving under the president and executive vice president.  Id. at <br>6.  The bank's primary functions were to act as fiscal agent and <br>financial advisor to the Commonwealth of Puerto Rico, its governor, <br>and political subdivisions; lender to government and private <br>industry; and depository of Commonwealth funds.  Id. at 8.  De <br>Choudens claimed that she was demoted because of her political <br>affiliation, and we affirmed the district court's order reinstating <br>her.   <br>     We held that the bank had "indicia of legitimate partisan <br>goals for government operations, not far removed from some of the <br>policy objectives of [the agency] discussed in Jiminez Fuentes."  <br>Id. at 8.  Unlike Jiminez Fuentes, however, we concluded that De <br>Chouden's job position did not justify a political affiliation <br>requirement.  She was a "staff official who, while indubitably in <br>a policymaking, confidential, and communicative position, is both <br>empowered and constrained by the limits of her specialized <br>functions."  Id. at 9.  Unlike the department in Jiminez Fuentes, <br>"her division [was] not a microcosm of the larger agency."  Id.   <br>The government emphasized her broad discretion in rule-making, <br>reorganization, accounting policy, investment strategy, and budget <br>and personnel recommendations, but we found the need for political <br>affiliation lacking:   <br>     While these responsibilities signify a <br>     position of substance, of valued policy <br>     contributions, recommendations, and advice, <br>     they involve politically-neutral, technical, <br>     and professional matters.  Similarly, though <br>     plaintiff was indeed an agency spokesperson, <br>     there is no suggestion of any "party line" or <br>     political, goal-oriented message that she ever <br>     communicated. <br>Id.  (emphasis added).   <br>     The court today gives only brief consideration to the <br>tasks required of Flynn and Wolfson.  The court does not focus on <br>whether Flynn's and Wolfson's duties are "politically-neutral," <br>"technical," or "professional," De Choudens, 801 F.2d at 9, or <br>whether their duties are those of a "policy maker, privy to <br>confidential information, a communicator, or some other office <br>holder whose function is such that party affiliation is an equally <br>appropriate requirement."  O'Connor, 994 F.2d at 910.  Nor does the <br>court consider factors relevant to this determination such as <br>"relative pay, technical competence, power to control others, <br>authority to speak in the name of policy-makers, public perception, <br>influence on programs, contact with elected officials and <br>responsiveness to partisan politics and political leaders."  <br>Jimenez Fuentes, 807 F.2d at 242.   <br>     Wolfson, as Associate Director for Field Operations, has <br>described her job as:  <br>     overseeing the operations at 20 Community <br>     centers, including recreation, aquatics, <br>     programming, personnel, and budgets, <br>     monitoring the various programs of the [Boston <br>     Community Centers] for compliance with <br>     municipal, state, and federal regulations, <br>     providing technical assistance to the non- <br>     profit corporate arms of the centers, writing <br>     of the operational and non-profit fiscal <br>     compliance manuals for the agency, and <br>     supervision of capital improvements, <br>     maintenance, and repairs. <br> <br>The City submitted a written job description for Wolfson's <br>position.  The description provided that the Associate Director <br>"shall, under the Director . . . oversee the daily operations of <br>the Boston Community Schools & Recreation Centers Program."  The <br>responsibilities included: monitoring, supervising, and assisting <br>the coordinators; assisting in the governance process as it applies <br>to the formation of new councils; facilitating referral and support <br>networks between local operations; providing technical assistance <br>in the recruitment and hirings of coordinators; and giving <br>orientation and supervision to coordinators during the initial <br>ninety days of employment.  <br>     Viewing the evidence in the light most favorable to <br>Wolfson, I do not believe that party affiliation is an appropriate <br>job requirement for her position.  The focus of her <br>responsibilities was community center operations, and she was <br>involved in "hands-on," day-to-day operations.  Wolfson was <br>responsible for operational concerns such as recreational programs, <br>program personnel and budgeting, maintenance and capital <br>improvements, and compliance with applicable regulations.  She <br>testified in her deposition that she oversaw the Boston <br>Neighborhood Basketball League and supervised the aquatics <br>directors for the pools.  She explained that she worked with the <br>advisory board and councils for the community centers, and her role <br>was to ensure compliance with the plan of operations.  Political <br>party goals do not play a role in these aspects of operations.  <br>Rather, her specialized job responsibilities involved "politically- <br>neutral, technical, and professional matters."  De Choudens, 801 <br>F.2d at 9.  See Cordero v. DeJesus-Mendez, 867 F.2d 1, 14-15 (1st <br>Cir. 1989).  Although Wolfson had a connection to some policy- <br>making functions, her specialized functions did not create or <br>impact any policies of the department.  See De Choudens, 801 F.2d <br>at 6.  There is no doubt that Wolfson occupied an important <br>position with the Boston Community Centers, however, there is no <br>evidence that her position allowed her to make partisan decisions, <br>nor is there any suggestion that she ever communicated any <br>political message.  See De Choudens, 801 F.2d at 9.  Cf. Hall v. <br>Ford, 856 F.2d 255, 265 (D.C. Cir. 1988) ("highly visible <br>spokesman").  Political affiliation is not an appropriate job <br>requirement.   <br>     Similarly, Flynn describes his job responsibilities as <br>including the: <br>     oversight of all finance and personnel <br>     functions within the [Boston Community <br>     Centers], preparation and implementation of <br>     the department budget, supervision of state, <br>     federal, and private grants management, <br>     management of the agency's payroll and <br>     contract functions, providing fiscal, legal, <br>     and personnel assistance to the non-profit <br>     corporate arms of the centers liaison to the <br>     city's law department, labor relations, and <br>     federal agencies. <br> <br>Flynn's written job description describes Flynn's duties as: <br>planning and evaluating administrative procedures for the programs; <br>developing analytical models for use in the evaluations; preparing <br>statistical reports and working with others to evaluate the data; <br>and developing procedural guidelines for appropriate staff.  <br>     I agree that reviewing Flynn's political affiliation <br>claim is a closer question than Wolfson's because Flynn's position <br>was more closely involved with policy formulation and confidential <br>information at the Central Office.  Nevertheless, viewing the <br>evidence in the light most favorable to Flynn, as we are required <br>to in the appeal from summary judgment, I believe that his position <br>did not concern partisan political interests.  Flynn's position <br>lacked the capabilities of influencing political goals.  His <br>affidavit states that he "never worked with the Mayor's office to <br>establish goals and objectives . . . but only to find out what the <br>goals and objectives were."  Flynn explained in his deposition that <br>"[t]he largest political policy issues would be dealt with [sic] <br>the executive director."  Although Flynn was in charge of preparing <br>the department budget, his deposition clarifies that he prepared <br>the budget following the directives from the mayor and executive <br>director.  Flynn's responsibilities seem quite similar to those in <br>Fontane-Rexach v. Puerto Rico Electric Power Authority, 878 F.2d <br>1493, 1495, 1500 (1st Cir. 1988), in which we noted that although <br>the supply officer would not always approach his job in a uniform <br>way, it was improbable that his decisions would involve partisan <br>political goals.  Id. at 1496.  Likewise, Flynn's job duties were <br>largely limited to the technical and specialized aspects of finance <br>and budgeting, and his duties beyond those areas carried only a <br>limited potential for influencing political goals.  As in De <br>Choudens, Flynn was essentially a staff official with specialized <br>knowledge, and "although his position involved policy-making, the <br>reposing of confidence, and communicating," such functions were <br>"remote from advancing or thwarting the agency's partisan- <br>responsive goals."  See 801 F.2d at 6.  Accordingly, political <br>affiliation is not an appropriate requirement.   <br>     I believe that Flynn and Wolfson have presented evidence <br>sufficient to survive summary judgment on their claim that they <br>were terminated from their jobs because of their lack of political <br>affiliation with the Mayor.  Accordingly, I would reverse the <br>district court's judgment on this issue. <br>     Because I conclude that Flynn's and Wolfson's positions <br>are not political positions, I also part company with the court's <br>view that they have no First Amendment claim.   <br>     Flynn's and Wolfson's objections to Riesenberg's handling <br>of certain sexual harassment claims constitute a matter of <br>legitimate public concern.  The  allegations bear on Riesenberg's <br>fitness to serve as Executive Director, similar to the public <br>concern we identified in O'Connor.  See 994 F.2d at 915.  Because <br>such statements concern a topic which is a matter of inherent <br>concern to the public, we need not examine plaintiffs' personal <br>motivations for speaking out.  Id. at 915.  <br>     I concede that the employees' objections to Riesenberg <br>about personnel practices present a more difficult circumstance.  <br>In Connick v. Myers, 461 U.S. 138 (1983), the Court considered a <br>questionnaire circulated by an assistant district attorney, <br>inquiring about matters such as the office's transfer policy, <br>office morale and the level of confidence in supervisors.  Id. at <br>141.  The Court concluded that this speech related only to internal <br>office policy and did not touch upon matters of public concern.  <br>Id. at 154. <br>     Compared to the speech in Connick, however, the <br>complaints of Flynn and Wolfson about office policies and <br>procedures touch upon matters more likely to be of public concern, <br>i.e., whether the city based personnel decisions on political <br>alliances without regard to qualifications.  Because this speech <br>does not necessarily qualify on its face as a matter of public <br>concern, we must examine its context more fully.  See O'Connor, 994 <br>F.2d at 914.  Unlike the statement in Connick, the statements at <br>issue were not made after the adverse employment decision, thus <br>suggesting retaliation, and were not directly related to the <br>plaintiffs' own employment situation.  See 461 U.S. at 148.  While <br>this is a close issue, I am convinced that the employees' evidence <br>is sufficient to survive summary judgment.  Personnel decisions <br>based on political affiliation are much more than an individual <br>employee's grievance against his employer.  See Connick, 461 U.S. <br>at 148.  I do not address the second and third steps of the <br>O'Connor analysis (balancing of interests and consideration of <br>motivations for plaintiffs' terminations) because the district <br>court did not reach those issues.  See 994 F.2d at 912-13.  I would <br>only hold that the employees have raised a genuine factual issue as <br>to whether they engaged in speech concerning a matter of public <br>concern protected by the First Amendment.   <br>     Finally, I would also allow Flynn and Wolfson to assert <br>their pendent state law claims for wrongful termination.  The <br>district court decided that a "whistleblowing" employee may be <br>entitled to public protection under Massachusetts law.  <br>Nevertheless, the court granted summary judgment in the city's <br>favor on the wrongful termination claim because of its ruling that <br>the employees' speech criticizing Riesenberg's decision did not <br>constitute whistleblowing.  I have reached a contrary conclusion as <br>to the public nature of the speech in question and, therefore, I <br>would conclude that there is a genuine issue of material fact as to <br>whether the speech at issue falls within the public policy <br>exception.  See GTE Products Corp. v. Stewart, 653 N.E.2d 161, 164- <br>65 (Mass. 1995).   <br>     I would reverse the district court's judgment.</pre>

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