Bonds v. Milwaukee County

• Citation: 207 F.3d 969
• Decision Date: 28 March 2000
• Docket Number: No. 99-2282,99-2282
• Parties: (7th Cir. 2000) Michael Bonds, Plaintiff-Appellant, v. Milwaukee County, Karen Ordinans, William Hart and Thomas Kuzma, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 969

207 F.3d 969 (7th Cir. 2000)

Michael Bonds, Plaintiff-Appellant, v. Milwaukee County, Karen Ordinans, William Hart and Thomas Kuzma, Defendants-Appellees.

No. 99-2282

In the United States Court of Appeals For the Seventh Circuit

Argued October 14, 1999

Decided March 28, 2000

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 921--Joseph P. Stadtmueller, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Harlington Wood, Jr., Cudahy and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Defendant Milwaukee County argues that this is a textbook case of protected employment action under the policymaking employee exception to the First Amendment. Plaintiff Michael Bonds publicly criticized his government employer on a matter of public concern, while serving in a "policymaking" position, and suffered adverse employment treatment based on his speech. Indeed, if that was the case without more, we would apply the policymaking employee exception first enunciated in Elrod v. Burns, 427 U.S. 347, 367-68 (1976), in a straightforward affirmance for the County.

The facts, however, are not so simple. While working for the City of Milwaukee, Bonds appeared at a public meeting and criticized a program that the City adopted the previous day as "sinister" and "pitting black against white." Based on this, the County of Milwaukee rescinded its offer of employment to Bonds. Thus, Bonds criticized the City of Milwaukee, his government employer at the time, but received adverse action from a different government body, the County of Milwaukee, for whom Bonds was to begin employment in two weeks.

The policymaking employee exception does not cover a government entity's refusal to hire based on the prospective employee's criticism of a different government entity for whom he had worked. Nonetheless, we apply the balancing test of First Amendment and government employer interests from Pickering v. Board of Education, 391 U.S. 563 (1968), and find that the County's decision not to hire Bonds was justified by its interests in government efficiency and workplace harmony. We affirm judgment for the County.

I. History

The Community Development Block Grant Committee for the City of Milwaukee ("City") is an elected body of ten officials that makes all policy decisions regarding the distribution of Community Development Block Grant ("CDBG") funds received by the City from the federal government. Michael Bonds, who had endured a decade of postgraduate study on the CDBG program, was a natural fit as senior fiscal analyst for the Block Grant Committee. In that position, Bonds evaluated policy proposals for the distribution of CDBG funds and oversaw the allocation of $30 million in federal funding.

In the spring of 1997, Milwaukee Mayor John Norquist proposed a novel method for the distribution of CDBG money, called the Neighborhood Strategic Planning Process ("NSPP"). The NSPP restructured the distribution process by dividing Milwaukee into seventeen service areas within each of which community groups would compete for portions of their respective area's funding allocation. Pursuant to his duties for the City, Bonds researched the NSPP and became a staunch opponent. Bonds authored a highly critical report, dated July 14, 1997, condemning the NSPP as "seriously flawed" and warning that it "pits poor people (black, white, and hispanics) on the southside of the city against those on the northside." Despite Bonds's report and amid intense public scrutiny focused on what Bonds testified was "the hottest issue in City government during that period," the City adopted the NSPP in final form on July 25, 1997.

Unhappy with his role at the City, Bonds had been contemplating a move out of city government and had applied for employment as a research analyst with the Milwaukee County Board of Supervisors ("County" or "Board of Supervisors"). Karen Ordinans, chairperson of the Board of Supervisors, interviewed Bonds after Bill Hart, Ordinans's chief of staff, selected Bonds as one of five finalists for the position from more than seventy applicants.

During the hour-long interview, Ordinans told Bonds that she "expected staff to be providers of information, to be objective about the research and analysis and not get into the political part of debating issues and making policy decisions." Bonds replied that "he knew that whether he disagreed or agreed with a decision made by the County Board, that it was not his place to publicly comment on it or get into it." Impressed with Bonds's experience and demeanor, Ordinans offered the position to him around July 23, 1997. Bonds accepted her offer in a letter dated July 25, 1997, and gave the City his notice of resignation, effective August 8, 1997.

On July 26, 1997, one day after Bonds accepted the position with Milwaukee County, Bonds participated as a panelist in a "Community Brainstorming Conference" on the NSPP at the request and in place of Alderman Fred Gordon. The forum, held at a Milwaukee church, featured five speakers offering alternate viewpoints on the block grant program and the NSPP. The schedule for the forum listed Bonds as a "Community Development Policy Committee Analyst." At trial, the parties disputed the substance of Bonds's remarks at the forum, but the district court determined that Bonds was openly critical of the NSPP as "sinister" and attacked both the City, still his employer at the time, and Mayor Norquist. The Milwaukee Journal Sentinel reported these events in its July 27, 1997, edition as follows:

City analyst decries block grant funds shift

A Common Council decision to shift $660,000 in Community Development Block Grant money from north side neighborhoods to some on the south side is "sinister" and should result in an attempt to recall Mayor John Norquist if he does not veto it, a city analyst told an applauding north side audience Saturday.

"Anyone who is concerned about racial harmony should be at City Hall raising hell," said Michael Bonds, an analyst for the Block Grant Policy Committee, at a meeting Saturday of the Community Brain Storming Conference. "This is pitting black against white when we should be working together."

* * *

Bonds, who said he is quitting his city job to take a similar position with the Milwaukee County Board, was one of six panelists at the session held at St. Matthew's C.M.E. Church, 2944 N. 9th St. He urged people to call Norquist and demand that he veto the measure and to file protests with the U.S. Department of Housing and Urban Development. He also called on African-Americans serving on the block grant task force to resign in protest.

Reports of Bonds's performance sparked immediate outrage at Milwaukee County. Two county supervisors, Daniel Diliberti and Jim McGuigan, called Ordinans to voice concerns about Bonds's future employment with the County. Diliberti testified that he left a message for Ordinans saying that he would have found it "very difficult to work with [Bonds] if he was giving his opinion or would criticize the policy-making body that he was working for." He explained, "I wouldn't want staff on the County Board that disagreed with my decision and then publicly criticize[d] me for it." McGuigan testified that he left a message for Ordinans expressing concern that Bonds was "trying to be a policymaker" and warning that the County "didn't need a 26th supervisor." Another county supervisor, Robert Krug, was "shocked" by the reports of Bonds's conduct and opined to Hart that Bonds's statements "were very wrong, and [he] would be very concerned about having somebody on staff that would be willing to make statements like that publicly in the press."

Alarmed, Hart called Bonds on July 28, 1997, to investigate the events described in the Milwaukee Journal Sentinel. Bonds told Hart that the newspaper account reported his comments out of context but admitted that the "main thrust" of the article was correct. Bonds explained that he was simply trying to inform the community about the NSPP and present it with different options for protest. Later that day, in an attempt to allay Hart's concerns, Bonds faxed several documents to Hart including a written apology to Mayor Norquist and a memorandum to the Milwaukee Common Council clarifying his comments at the forum.

Ordinans was "very shocked" by Bonds's conduct at the forum. Ordinans hired Bonds for the trusted analyst position believing that Bonds would be discreet and reserve his personal misgivings from public attention. Yet Bonds displayed "extremely poor judgment" in openly criticizing a decision of the policymaking body for which he worked and making inflammatory comments regarding a politically controversial matter on which he had worked. Ordinans felt that "if this guy is going to question the Common Council as a policy-making body, he could certainly do it again and question a policy decision that was going to be made by the Milwaukee County Board." She explained at trial that his behavior "immediately sent signals to [her] that [she] was going to have a big problem on [her] hands if this person came on board." Indeed, Bonds's own superior Alderman Gordon was stunned by Bonds's inappropriate "diatribe" that "created a fire storm" of unwanted political controversy. Gordon explained that he had to perform "damage control" and was "besieged with phone calls" for days regarding the incident. Gordon felt that Bonds certainly spoke on his own behalf because he "never said to Mr. Bonds to criticize the process as being sinister, [he] never called for Mr. Bonds to state that the Mayor should be recalled, [he] never said anything like that."

Furthermore, Ordinans believed that Bonds would cause dissension in her workplace. Bonds's performance was widely publicized, and Ordinans felt that "the staff would have had resentment" because "[t]hey do not conduct themselves as...