                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 11-4017
                                  _____________

                               CRAIG KALINOSKI

                                        v.

                        *LACKAWANNA COUNTY;
                     COREY O'BRIEN; MICHAEL WASHO,

                                                   Appellants


             *Dismissed pursuant to Court's Order of December 22, 2011
                                  _____________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                              (D.C. No. 3:10-cv-00314)
                   District Judge: Honorable A. Richard Caputo
                                 _______________

                            Argued November 15, 2012

         Before: RENDELL, FUENTES, and CHAGARES, Circuit Judges.

                             (Filed: January 18, 2013)

Deborah H. Simon, Esq. (Argued)
Elliott Greenleaf & SiedIkowski
925 Harvest Drive, Suite 300
Union Meeting Corp. Ctr. V
Blue Bell, PA 19422
John G. Dean, Esq.
Joseph J. Joyce, III, Esq.
Elliott Greenleaf & Dean
201 Penn Avenue, Suite 202
Scranton, PA 18503
        Attorneys for Appellants

Peter D. Winebrake, Esq. (Argued)
R. Andrew Santillo, Esq.
Winebrake and Santillo, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
       Attorneys for Appellee
                                    _______________

                                       OPINION
                                    _______________

CHAGARES, Circuit Judge.

      Craig Kalinoski brought claims under 42 U.S.C. § 1983 against Corey O’Brien,

Michael Washo, and Lackawanna County alleging that they violated his First

Amendment rights when they terminated his employment with the Lackawanna County

Office of the Public Defender. O’Brien and Washo1 now appeal the District Court’s

denial of summary judgment in their favor. For the reasons discussed below, we will

vacate the District Court’s ruling and remand.

                                            I.

      Because we write solely for the benefit of the parties, we recount only those facts

that are relevant to our disposition. The Lackawanna County Board of Commissioners is

made up of three county commissioners: two majority party commissioners and one


1
 Pursuant to the Court’s December 22, 2011 Order, Lackawanna County is no longer a
party to this appeal.
                                            2
minority party commissioner. In 2007, O’Brien and Washo (collectively “defendants”),

who are Democrats, were elected as majority commissioners. Their platform included a

promise to increase the transparency of local government, in part by conducting a more

open hiring process.

       After winning the general election but before their inauguration, O’Brien and

Washo formed a variety of advisory transition teams to study local departments and make

suggestions on how to improve services and save money. The defendants asked former

Chief Public Defender Gerard Karam, Robert Munley, Karam’s former assistant,

Christopher Munley, an attorney, and Jeffrey Nepa, also an attorney, to examine the

Office of the Public Defender, where plaintiff Kalinoski, a Republican, had served as a

public defender since 2004. The four men who made up this transition team all supported

the defendants’ political campaign in one way or another: Karam and Munley performed

free legal work and assisted with fundraising; Nepa also assisted with fundraising; and all

four donated to the campaign.

       In evaluating the Office of the Public Defender (the “Office”), members of the

transition team spoke with judges and other attorneys, and made use of their own

experiences in the Lackawanna County court system. The problems they identified at the

Office of the Public Defender included the low number of matters proceeding to trial, the

difficulty judges experienced locating public defenders during the work day, a lack of

experience among the attorneys, and the specific lack of death penalty certified attorneys.

Because the county was facing a serious budget deficit, the defendants also asked the

advisory transition team to consider ways to cut the Office’s budget. The team

                                             3
concluded, however, that it would be impossible to cut the budget without seriously

impairing the Office’s ability to provide necessary services to indigent defendants.2

       In order to improve the Office, the team suggested restructuring it by making the

Chief Public Defender’s job a full-time position and funding three full-time assistant

public defender positions and eight part-time assistant public defender positions. This

represented an elimination of seven full-time assistant public defender positions, one of

which Kalinoski held. Karam presented these ideas to the defendants in an email dated

December 12, 2007, and in person in January 2008, likely after the defendants’

inauguration. The email contained only suggestions related to the restructuring of the

office, but the meeting also covered specific personnel recommendations.

       After receiving the team’s structural recommendations, the defendants placed

advertisements in local papers inviting people to apply for new county positions and

posted open job positions online. News that the county was accepting applications also

spread through word-of-mouth. After speaking with several people including Larry

Moran, who Kalinoski believed was in charge of hiring, about possible upcoming

changes at the Office of the Public Defender, Kalinoski submitted his application to the

county, seeking either the First Assistant Public Defender position or one of the full-time


2
  The transition team advised the defendants that its proposed restructuring could be
“done within the current budget for the office.” Appendix (“App.”) 836. The final
approved budget, though, was actually $100,000 more than the 2007 budget for the
Office of the Public Defender. Id. 622-23. At oral argument, counsel for defense
explained that this difference was accounted for by the elimination of the chief conflicts
lawyer position, whose salary had been allocated to a different department’s budget, and
the transfer of that money into the Office of the Public Defender budget. See also id.
282-83.
                                             4
assistant positions. There were at least twenty-nine applicants who sought one or more of

the open positions. App. 589-92.

       The transition team reviewed the resumes received and considered feedback from

judges and others on the applicants, who included both current members of the Office of

the Public Defender and outsiders. They also took into account their own experiences

with the applicants, but did not conduct formal interviews, solicit formal letters of

recommendation, or collect writing samples. At the January 2008 meeting, at which at

least Karam and the defendants were present, Karam conveyed the transition team’s

recommendations to O’Brien and Washo. O’Brien then incorporated the team’s

recommendations, including specific personnel suggestions, into a proposed budget

document entitled “The Washo-O’Brien Hiring Chart” that the defendants sent to the

county’s budget director for approval in advance of the official budget vote.

       The chart was a working document that dealt with a variety of departments and

listed positions, employees, salaries, and benefits under the 2007 budget and under the

defendants’ proposed 2008 budget. The chart indicated that some positions under the

2007 budget were to be eliminated (“Eliminated Position[s]”), while other positions were

paired with positions included in the proposed 2008 budget. See, e.g., App. 606. There

was no “Eliminated Position” label next to Kalinoski’s position on the chart. Instead, the

chart listed Kalinoski’s 2007 “Asst Public Defender” position with the “Asst Public

Defender (Full-Time)” position that was assigned to Tim McGraw under the defendants’

proposed budget. Id. 610.



                                              5
       Ultimately, Kalinoski was not retained by the Office of the Public Defender. He

contends that he should have been hired as one of the three full-time assistant public

defenders, a position similar to the assistant public defender position he had held under

the previous Republican majority commissioners.3 The attorneys that the team

recommended for those positions were Joseph (“Jody”) Kalinowski (no relation to

Kalinoski), Dominic Mastri, and Tim McGraw. Kalinowski and Mastri had served as

public defenders during the previous administration, while McGraw was an outside hire.

The transition team had heard positive feedback about McGraw, Mastri, and Kalinowski.

McGraw also had personal ties to individuals who had supported the defendants in their

election campaign. There were no specific performance complaints regarding Kalinoski,

but the team had heard that Kalinoski was “conflicted out” of too many cases from one of

the two local judges with whom it had spoken. Team members Nepa and Karam also

reported that they had had bad experiences with Kalinoski.

       The new head of the Office of the Public Defender, Sidney Prejean, accepted the

position in the second week of January 2008, and it fell to him to inform Kalinoski that

he would no longer have a position in the Office of the Public Defender. On January 28,

2008, before the O’Brien-Washo budget that eliminated Kalinoski’s position was

formally approved, Prejean informed Kalinoski that his position had been eliminated, but

assured him that he had never heard any complaints about Kalinoski’s performance, and



3
  Kalinoski also suggests that he should have been considered for a part-time position,
but there is no evidence that he submitted an application for a part-time position. See
App. 1323-28.
                                             6
that, as far as Prejean had seen or heard, Kalinoski was a good attorney. Two days later,

the O’Brien-Washo budget was approved by the county at a public vote.4

       In the months leading up to the Lackawanna County general election, Kalinoski

had encountered both O’Brien and Washo. During both encounters, the candidates and

Kalinoski discussed Kalinoski’s work with the Office of the Public Defender and the

candidates asked Kalinoski for his support. Both times, Kalinoski indicated that he

supported the defendants’ opponents. Believing that he lost his position in the Office of

the Public Defender either because he had supported the defendants’ opponents in the

county election or in order to make room for the defendants to hire their political

supporters, Kalinoski filed suit along with Thomas Bradley and Kenneth Kovaleski, two

other public defenders who were not retained by the new administration, under § 1983

claiming that their First Amendment rights had been violated. These suits were

consolidated with a later action brought against Lackawanna County by other former

employees. After Kalinoski retained a separate attorney, his suit was severed from the

consolidated action.

       O’Brien, Washo, and the county filed a motion to dismiss the claims, in part

asserting legislative immunity. The District Court converted the motion to a motion for

summary judgment and held that O’Brien and Washo were not entitled to legislative

immunity, a ruling that O’Brien and Washo now appeal. In denying the defendants


4
 Although the parties do not dispute that the budget was approved at a public vote, we
note that the only record evidence that this occurred was a Lackawanna County Board of
Commissioners Meeting Agenda, dated January 30, 2008, and a Lackawanna County
Final Budget labeled “Adopted January 30, 2008.”
                                             7
legislative immunity, the District Court held that although the defendants had

demonstrated that Kalinoski’s termination was substantively legislative, there was

insufficient evidence to demonstrate that it was also procedurally legislative, as is

required under the legislative immunity doctrine. Kalinoski v. Lackawanna Cnty., 3:10-

CV-0314, 2011 WL 4048531, at *4-5 (M.D. Pa. Sept. 12, 2011).

                                             II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331.

We have jurisdiction over the District Court’s order denying the defendants absolute

immunity under 28 U.S.C. § 1219 because, although this Court does not ordinarily have

jurisdiction to review a lower court’s denial of summary judgment, when the summary

judgment motion is premised on absolute immunity, “the district court’s denial is

immediately appealable because it falls within the collateral order doctrine.” Carver v.

Foerster, 102 F.3d 96, 98 (3d Cir. 1996). Absolute legislative immunity is a purely legal

question over which we exercise plenary review. Id. at 99.

       “Under the Supreme Court's functional test of absolute legislative immunity,

whether immunity attaches turns not on the official’s identity, or even on the official’s

motive or intent, but on the nature of the act in question.” In re Montgomery Cnty., 215

F.3d 367 (3d Cir. 2000). When the district court determine whether legislative immunity

attaches to a municipal actor who has engaged in arguably administrative activities, it is

to apply a two-part test that asks whether the municipal actor’s actions were both

substantively and procedurally legislative. Baraka v. McGreevey, 481 F.3d 187, 198 (3d

Cir. 2007). This test is designed to protect acts that are “within the sphere of legitimate,

                                              8
legislative activity,” and in applying the test the court must look only at the acts

themselves “stripped of all considerations of intent and motive.” Id. (citing Bogan v.

Scott-Harris, 523 U.S. 44, 55 (1998)).

                                              A.

       We have explained that acts are substantively legislative when they “involve

policy-making decision[s] of a general scope or, to put it another way, legislation

involves linedrawing.” Gallas v. Superior Court of Pa., 211 F.3d 760, 774 (3d Cir. 2000)

(quoting Ryan v. Burlington Cnty., 889 F.2d 1286, 1290-91 (3d Cir. 1989)) (quotation

marks omitted). Conversely, where a decision “affects a small number or a single

individual” rather than the general public, the decision is administrative rather than

legislative. Id. This distinction has led us to distinguish between eliminating a position

and terminating an individual employee, characterizing the former as legislative and the

latter as administrative. Baraka, 481 F.3d at 199-200 (citing cases).

       The Baraka case involved the claim by Amiri Baraka, a former New Jersey poet

laureate, that his First Amendment right to free speech had been violated when, in

reaction to a poem he had read at a poetry festival that many found racist and anti-

Semitic, the state passed a law abolishing the state’s poet laureate position. Id. at 194.

Baraka brought claims against the state of New Jersey and against a variety of state

officials, including then-Governor McGreevey. We affirmed the lower court’s dismissal

of the claims against Governor McGreevey on the basis of absolute legislative immunity.

Noting earlier cases that drew a “distinction between the elimination of a position and the

termination of an individual employee,” we reasoned that the elimination of a position

                                              9
was the type of policy-making that “traditional legislation entails.” Id. at 199-200.

Citing recent Supreme Court precedent, we further noted that McGreevey’s motivation in

enacting the law eliminating the poet laureate position, whether concerned specifically

with Baraka or with more global public concerns, was immaterial. Id. at 200 (citing

Bogan, 523 U.S. at 54-55).

       The defendants persuasively argue that, following the logic in Baraka, the decision

to restructure the Office of the Public Defender was legislative; it was a long-lasting

change designed to affect the quality of services offered to the public at large. The

defendants did not simply fire Kalinoski and hire a new attorney in an identical position;

they eliminated his position outright. The case is therefore unlike In re Montgomery

County, 215 F.3d 367 (3d Cir. 2000), the case relied upon by Kalinoski, because the

plaintiff in Montgomery County was fired because of his poor performance and ethically

questionable acts independent from any restructuring of his department or elimination of

his position. Id. at 376-77.5

       Under Supreme Court and Third Circuit precedent, it is clear that the restructuring

of the Office of the Public Defender and corresponding elimination of Kalinoski’s

position was substantively legislative in character.

                                             B.

       The remaining question is whether it was also procedurally legislative. An act is

procedurally legislative when it is “passed by means of established legislative

5
 Because Kalinoski challenges only the restructuring of the office and elimination of his
position and not the subsequent hiring process, we need not address the hiring decisions
made by the defendants at the recommendation of the transition team.
                                             10
procedures.” Gallas, 211 F.3d at 774. This requirement limits the grant of immunity to

legislative acts that follow constitutionally accepted procedures, assuring that immune

acts are legitimate and reasoned decisions that represent the will of the people. Id.

Immunity is not limited to only the actual casting of legislative votes, but encompasses

“all aspects of the legislative process, including the discussions held and alliances struck

regarding a legislative matter in anticipation of a formal vote.” Almonte, 478 F.3d at

107. Further, that such advance discussions or meetings may be conducted behind closed

doors or be politically motivated does not erase the “legislative character of the process.”

Id.

       As the District Court correctly recognized, this is the critical issue in this case.

The defendants argue that the county’s charter empowered the defendants as county

commissioners to adopt an annual budget, see 335 Pa. Code § 1.3-302(b), and that the

same section of the charter also grants commissioners the power “to establish, abolish or

reorganize departments and/or programs to promote efficiency and economy.” Id. § 1.3-

302(l). This, in addition to the vote approving the budget, they suggest, is sufficient to

satisfy the procedural prong. The power to act, though, is not the same as acting

according to an established legislative procedure, as is necessary to satisfy the legislative

immunity prong.

       There are a variety of procedures in the Lackawanna County Home Rule Charter

that the commissioners may have had to comply with when making budgetary and

personnel decisions. For example, section 1.3-309 provides that “[a]ctions of the Board

which are legislative in nature shall be by ordinance,” while the previous section provides
                                              11
that an ordinance may not be finally adopted at the meeting at which it is first introduced

and that adoption of an ordinance or amendment “may occur no sooner than the next

following regular or special meeting of the Board held at least six (6) days after the

proposed ordinance or amendment was introduced.” Id. § 1.3-308. Moreover, under

section 1.3-306, the vote on any board action “shall be by roll call unless there is

unanimity,” while section 1.3-307 provides that persons must be afforded the opportunity

to address the Board regarding an ordinance before it may be adopted. The Home Rule

Charter also contains a list of requirements for budgets, including that they list all

estimated income, all proposed expenditures, and the number of proposed employees in

every job classification. Id. § 1.2-1204. In addition to the provisions cited above, at oral

argument we also raised questions about whether the fact that Kalinoski was terminated

before the budget amendment was passed had any import and whether Home Rule

Charter provisions discussing the role of the Salary Board, see, e.g., 335 Pa. Code § 1.2-

204 (providing that salaries other than those of elected officers “shall be determined by

the Salary Board”), had any application here and what role, if any, the Salary Board had

played.

       While compliance with such procedures might be enough to satisfy the procedural

prong of the legislative immunity test, there is a dearth of evidence as to whether such

procedures were, first, required and, second, complied with in this case. The record is so

incomplete in fact, that until counsel mentioned it at oral argument, we were unaware that

the defendants’ budget proposal was actually a proposed amendment to the budget that

had been passed by the out-going county commissioners and not simply a proposed

                                              12
budget. Given that the record did not clarify that the defendants’ proposal was an

amendment, it is not surprising that there is also a dearth of information as to what

procedures govern the budget amendment process in Lackawanna County and whether

the defendants acted in accordance with any such procedures.

       We do not find fault with the District Court’s conclusion that there was inadequate

evidence to support the granting of legislative immunity. All that the record suggests is

that notice of the impending budgetary vote was published and that the County Board of

Commissioners voted to approve the budget. Quite simply, this is not enough to

demonstrate that Kalinoski lost his job as the result of acts that were carried out

according to “established legislative procedures.” Gallas, 211 F.3d at 774.

       Given the obvious hole in the record, we will vacate the District Court’s Order

denying legislative immunity and remand the case to allow both sides the opportunity to

explain what legislative procedures did or did not govern the defendants’ acts and

whether the defendants’ budget that resulted in Kalinoski’s termination was passed by

means of established legislative procedures, and to permit the District Court to consider

this issue on an expanded record.6

                                             III.

       For the foregoing reasons, we will vacate the District Court’s denial of legislative

immunity and remand for further proceedings.

6
  While we would normally either affirm or reverse a denial of immunity, we believe the
disposition we order is appropriate in order to service the purpose of immunity appeals,
i.e., to avoid trials if immunity should be afforded. Here, we believe it better to decide
that issue on the adequate record, rather than subject the parties to trial, if indeed
immunity exists.
                                             13
