122 F.3d 53 (1st Cir. 1997), 96-2315, Wagner v. Devine

Docket Nº:96-2315.
Citation:122 F.3d 53
Party Name:Robert WAGNER and Margaret Wagner, Plaintiffs, Appellants, v. Patricia DEVINE, Kevin A. Jourdain, Charles E. Moran, III, Arthur Therrien, John E. Whelihan, The City of Holyoke, Massachusetts, The International Brotherhood of Police Officers, Local 388, and The International Brotherhood of Police Officers, Defendants, Appellees.
Case Date:August 01, 1997
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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122 F.3d 53 (1st Cir. 1997)

Robert WAGNER and Margaret Wagner, Plaintiffs, Appellants,

v.

Patricia DEVINE, Kevin A. Jourdain, Charles E. Moran, III,

Arthur Therrien, John E. Whelihan, The City of Holyoke,

Massachusetts, The International Brotherhood of Police

Officers, Local 388, and The International Brotherhood of

Police Officers, Defendants, Appellees.

No. 96-2315.

United States Court of Appeals, First Circuit

August 1, 1997

Heard May 5, 1997.

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Stewart T. Graham, Jr., Hampden, MA, for appellants.

John H. Fitz-Gibbon with whom Harry L. Miles, Northampton, MA, was on brief for appellees Devine, Jourdain, Moran, Whelihan and the City of Holyoke, Massachusetts.

Lawrence D. Humphrey, Quincy, MA, for appellees Therrien, International Brotherhood of Police Officers, Local 388, and the International Brotherhood of Police Officers.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Appellant Robert Wagner, former chief of police in Holyoke, Massachusetts, claims that his First Amendment freedom of political association was violated when members of the city council and others subjected him to severe harassment, ultimately forcing him to resign, because of his political support for the city's mayor. He filed this lawsuit alleging federal constitutional and state law claims. 1 The district court dismissed the First Amendment counts for failure to state a claim, and declined supplemental jurisdiction over the state law counts. Because the First Amendment does not protect a policymaking official such as appellant from criticism and harassment, we affirm.

I. Factual Background 2

Appellant Wagner was appointed Holyoke's chief of police in July 1991 by then newly elected Mayor Hamilton. Wagner asserts that four members of the City Council who were Hamilton's political opponents engaged in a campaign of harassment against him for the purpose of embarrassing the mayor and forcing appellant to resign. He contends that their criticisms of his job performance were unfair and inaccurate, and that their actions were motivated solely by their opposition to his political beliefs and his political support of the mayor. 3 He further asserts that the president of the police union, and through him the local and international unions, conspired with the council members to effectuate the plan to oust him.

The complaint accuses the council members of harassing him by means of unspecified "actions," and numerous false and defamatory statements. At the hearing on the motion to dismiss, appellant's counsel identified the challenged actions as follows:

They were constantly criticizing him. They had subcommittees that they were chairing and they had him up to see the council constantly, criticizing him in everything he did.... They tried to eliminate his salary. They reduced his salary.

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They reduced his benefits. They refused to fund programs that he was pushing.

Although the mayor has sole authority under the city charter to hire or fire the police chief, the council has power to set the salary and benefits for the position. According to Wagner, the four defendant council members, a minority of the governing body, "led the charge" against him and secured the complicity of enough other councilors to accomplish their unlawful objectives.

Wagner resigned in September 1994. He asserts that he was forced to do so because the defendants' actions and statements hindered, undermined, and interfered with the performance of his duties, and thus constituted a constructive discharge. 4

This lawsuit followed. In addition to federal civil rights claims under 42 U.S.C. § 1983, which assert violation of his First Amendment right to political association, Wagner alleged a state civil rights violation, and state law claims of defamation, tortious interference with contractual relations, and, in his wife's name, loss of consortium. In response to the defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6), the district court substantively addressed only the section 1983 count. It ruled that "the alleged harassment which Wagner sustained at the hands of a minority of the city councilors and a subordinate police officer was not of sufficient degree to constitute 'a constitutionally significant burden on [Wagner's] political association right.' " Memorandum and Order at 5 (quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1216 (1st Cir.1989) (en banc )).

The court also concluded that, even if the harassment had been sufficiently severe to implicate constitutional concerns, Wagner's First Amendment claim still would fail because the police chief's position was one for which political affiliation is an appropriate requirement...

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