This week the Third Circuit Court of Appeals found that qualified immunity extended to two members of the Pocono Township Board of Supervisors, in a case where a third member filed a suit claiming First Amendment retaliation.
Harold Werkheiser, Frank Hess and Henry Bengel were the elected Board of Supervisors for Pocono Township. In addition to serving as Supervisors, Werkheiser was employed as the Township Roadmaster and Hess received wages for performing administrative duties for the Board. When the Township hired an administrator and grant writer to take on many of Hess’ responsibilities, Hess continued to collect his compensation. After Werkheiser voiced his objection to this arrangement, Hess and Bengel voted to deny Werkheiser’s reappointment as Roadmaster.
Werkheiser sued the Township, Hess, and Bengel for First Amendment retaliation, asserting he was not reappointed as a result of speech he expressed in his capacity as an elected official. Hess and Bengel motioned to dismiss this claim, asserting they were entitled to qualified immunity because, under Gracetti v. Ceballos, speech made in an individual’s official capacity as an elected representative is not protected by the First Amendment.
The District Court concluded Gracetti applied to public employees and not elected officials, and denied the motion. The Third Circuit reversed the order, concluding Appellants were entitled to qualified immunity against Appellee Werkheiser’s First Amendment retaliation claim. It its opinion, the Court noted thatit was not clearly established that an elected official’s speech is entitled to first amendment protection. For an official to have qualified immunity, the right at issue must have been clearly established at the time of the alleged misconduct. Because case law did not clearly establish that the retaliation at issue was a violation of Werkheiser’s constitutional rights, qualified immunity was warranted.