O'Connor v. Steeves, No. 92-2134

Decision Date28 May 1993
Docket NumberNo. 92-2134
Citation994 F.2d 905
PartiesPatrick J. O'CONNOR, Plaintiff, Appellant, v. Robert W. STEEVES, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Paul F. Denver with whom Neil Rossman and Rossman, Rossman & Eschelbacher, Boston, MA, were on brief for plaintiff, appellant.

John Foskett with whom Deutsch, Williams, Brooks, DeRensis, Holland & Drachman, P.C., Nancy Merrick, Merrick & Louison, Charles H. Riley, Jr. and Ganz, Ham & Riley, Boston, MA, were on brief for defendants, appellees.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Patrick O'Connor, former Superintendent of Public Works for the Town of Nahant, Massachusetts ("Town"), was discharged following an extended feud with Selectman Robert Steeves. O'Connor sued the Town and its three selectmen--Steeves, Harry Edwards and Richard Lombard--for violating his First Amendment rights to freedom of speech and political association. The district court granted summary judgment for all defendants.

I

BACKGROUND

Summary judgment is appropriate if no genuine issue of material fact exists and the

                moving party is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c);  Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992).   All reasonable inferences are to be drawn in favor of the party opposing summary judgment, in this case appellant O'Connor, just as all disputed facts are viewed in the light most favorable to him.   See Goldman v. First Nat'l Bank, 985 F.2d 1113, 1116 (1st Cir.1993);  Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990).   On the other hand, we will not credit "conclusory allegations, improbable inferences, and unsupported speculation."  Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)
                
A. The Town

Nahant, Massachusetts, is a municipality of approximately 4,200 people, located north of Boston. Under the Town Charter, a three-member Board of Selectmen serves as the "chief policymaking agency of the town." Selectmen serve staggered three-year terms; one seat on the Board is filled by election each year.

Among their other duties, the Selectmen are charged with appointing a Superintendent of Public Works (hereinafter "Superintendent"), whose duties are defined in the Town Charter:

He shall administer, under the supervision and direction of the Selectmen, a Department of Public Works and the highway, water, sewer, cemetery, tree warden and health departments. He shall also administer, under the supervision and direction of the Selectmen, such other departments under their supervision as the Selectmen may designate, except the fire and police. He shall be responsible for the administration of all departments within the scope of his duty, and shall hold office subject to the will of the Selectmen. He shall be specially fitted by education, training and experience to perform the duties of said office.... During his tenure, he shall hold no other elective or appointive office, nor shall be engaged in any other business or occupation.... and shall, subject to the approval of the Selectmen, appoint such assistants, agents and employees as the performance of the duties of the various departments under his supervision may require.

The job description for the position notes that it is "performed with professional independence and considerable latitude for independent administrative judgment" and that "[e]rrors could result in major loss of time and expenses." It also notes that the Superintendent "makes frequent contacts with other officials and the general public." Commensurate with these responsibilities, the Superintendent receives a salary of $41,286; by comparison, the Nahant Police Chief and Nahant Fire Chief each receive $41,365, and the Nahant Superintendent of Schools receives $48,000. Lower level salaries in the Department of Public Works ["Department"] range from $20,000-$24,000 for laborers to $31,000-35,000 for foremen.

B. O'Connor's Appointment

Prior to 1989, Robert Steeves served as Superintendent. The Town's three Selectmen at the time were Jayne Solomine, Richard Lombard, and Charles Kelley. In February 1989, following Kelley's death, Steeves was elected to the Board of Selectmen, triggering a search for a replacement Superintendent. The position was advertised as requiring "an associates degree in civil engineering or five years experience in related engineering fields."

Although O'Connor had no engineering degree, he submitted an application for the position. O'Connor had worked in construction prior to 1963; then as a foreman in a local manufacturing plant; then, following his retirement, in various positions for the Rynn Corporation, a family-owned construction company. More to the present point, perhaps, O'Connor had been active in the Solomine, Kelley, and Lombard election campaigns, having headed Solomine's initial campaign for public office in 1983. On July 20, 1989, O'Connor was appointed Superintendent, by a 2-1 vote, with Lombard and Solomine voting in favor. Steeves voted against the appointment, stating that O'Connor was unqualified and had been appointed because

of his connections to the Lombard and Solomine election campaigns.

C. Steeves and O'Connor

Notwithstanding O'Connor's appointment as Superintendent, Steeves continued his hands-on involvement in the Department, dealing with vendors, directing personnel, and making various small purchases on the Department's account. O'Connor believed that Steeves' continuing involvement "undermined" O'Connor's authority within the Department, and on several occasions in late 1989 O'Connor told Steeves he should stay "out of doing my job." At around the same time, O'Connor became aware of Steeves' practice of purchasing goods for personal use through the Department account, which was not subject to the 5% Massachusetts sales tax. Although Steeves later repaid the Department for these purchases, the record does not indicate that the sales tax was ever paid. After discussing the matter with Town Accountant Joseph Canty, O'Connor concluded that the practice was improper, and asked Steeves to stop "so we could have some accountability through the financial system and all these invoices and everything else." Steeves did not respond.

When his approaches to Steeves proved unsuccessful, O'Connor complained to Selectmen Lombard and Solomine about Steeves' conduct, including the improper use of the Department account. In January or February 1990, O'Connor wrote the Board, detailing his complaints about Steeves' purchasing practices. The letter was discussed at a "public meeting" of some kind, although O'Connor is not sure whether any members of the public were in attendance. Selectman Lombard told Steeves to stop using the Department account, and wrote all department heads directing them to instruct employees not to charge purchases on department accounts without authorization. In response to Lombard's letter, O'Connor drafted an internal memorandum prohibiting unauthorized purchases on the Department account. The memorandum had little noticeable effect. Steeves continued to charge personal purchases on the Department account.

In March 1990, O'Connor addressed another memorandum to the Board, again describing Steeves' personal use of the Department account, and requesting that these practices be stopped. Lombard read the memorandum at another Board meeting and issued Steeves another warning, but apparently Steeves did not terminate the practice. The various disputes between O'Connor and Steeves led to increased friction within the Department. By the spring of 1990, as all parties concede, the Department's employees had divided into two factions, which communicated poorly, apparently on unfriendly terms.

2. The Town Water Crisis

In late March 1990, shortly before the annual Town election, larger events temporarily distracted the parties from the dispute over Steeves' purchasing practices, and caused them to focus instead on the breakdown of communications within the Department. Three consecutive readings of the Town water supply revealed bacterial contamination; under Massachusetts law, the Department was required to notify the public and the Massachusetts Department of Environmental Protection ("DEP"), and to take steps to safeguard the Town water supply. O'Connor was notified of the contamination during a family emergency, and called on Steeves to take charge of notifying the DEP. Steeves later insisted that he promised O'Connor no specific assistance. Phillip Applin, a Department employee, testified that although he provided information to Steeves at O'Connor's direction, he did so with hesitation, "because Mr. Steeves was not supposed to be involved with bothering the Public Works employees." Applin also testified that, as late as April 6, 1990, O'Connor and Steeves obviously had not yet spoken to each other about whether the DEP had been notified. Apparently as a result of the breakdown in communications between the parties, neither DEP nor the Town was notified about the contamination for several days, and a number of Town residents became seriously ill.

The perceived mishandling of the water contamination problem generated considerable

                public controversy, and became an important factor in the April, 1990 elections.   Selectman Jayne Solomine, who supported O'Connor, was replaced by Harry Edwards, a Steeves supporter.   Edwards later stated that he had been approached, prior to the election, by voters concerned about O'Connor's performance during the Town water crisis, and that he viewed his election as a mandate to remove O'Connor as Superintendent
                
D. O'Connor's Termination

Following Edwards' election and the correction of the water contamination problem, O'Connor resumed his complaints about Steeves' unauthorized...

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