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Media Alerts - Werkheiser v. Pocono Township - Third Circuit
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March 23, 2015
  Werkheiser v. Pocono Township - Third Circuit
Headline: Elected officials entitled to qualified immunity on claim that they violated the First Amendment by retaliating against a fellow official for speech made in his official capacity

Area of Law: First Amendment and Qualified Immunity

Issues Presented: Are elected officials entitled to qualified immunity where they are alleged to have retaliated against a fellow official for comments he made in his official capacity?

Brief Summary: The case centers on the Board of Supervisors in Pocono Township. Werkheiser was one member of the three member elected board and he objected to the actions of the other two members, including hiring a person to perform duties that another supervisor was supposed to do and paying both for it. Due to his objections, Werkheiser was not reappointed to the position of Roadmaster to which the Board had earlier appointed him. Werkheiser claimed these actions constituted First Amendment retaliation because he was denied a position as a result of speech he expressed in his capacity as an elected official. The Court decided that the defendant officials were entitled to qualified immunity from Werkhiser's claim because the right at issue was not clearly established at the time of the misconduct.

Significance (if any):

Extended Summary: Pocono Township has a three-member Board of Supervisors which is elected for a six-year term. Members of the Board of Supervisors can also hold positions of employment with the Township. Werkheiser was elected in 2008 and appointed Roadmaster by the Board of Supervisors the same year. The appellants joined the board in 2009 and 2011. Administrative duties were performed by one of the other supervisors but he soon became ill and the duties were given to a man who was appointed by a consultant to take over the duties. When the supervisor was again able to perform his duties the other man was not dismissed and both men were pulling in salary from the township. Werkheiser objected to this use of funds and in January 2013 the Board of Supervisors did not reappoint him to Roadmaster. Werkheiser claimed this action was First Amendment retaliation because he was denied his reappointment as a result of speech expressed in his capacity as an elected official.

The Court first looked to the two-step analysis that governs whether an official is entitled to qualified immunity that was established by the Supreme Court. The Court, starting with the second step, determined that the right at issue was not clearly established at the time of the alleged misconduct. It determined that Werkheiser's First Amendment rights, as an elected official, were not sufficiently defined and thus it could not deny appellants qualified immunity. The Court made it clear that it was determining only that the law on retaliation against elected officials was not clearly established. The Court did note that speech by elected officials may be treated differently than speech by public employees in their official capacities but again reiterated that this was not clearly established at the time of the alleged misconduct. The Court noted that the Circuits and District Courts are split as to whether elected official's speech made in his capacity as an elected official is entitled to First Amendment protection.

The Court also held that it was not clearly established that the kind of retaliation that was engaged in violated Werkheiser's First Amendment rights. The Court noted that not all retaliation violates the First Amendment nor does prior case law support the finding that the First Amendment should guard against every form of political backlash that might arise out of everyday squabbles and hardball of politics. The Court follows the other Circuits concluding that the First Amendment prohibits retaliation against elected officials for speech pursuant to their official duties only when the retaliation interferes with their ability to adequately perform their official duties. Here the Court found that Werkheiser's removal as Roadmaster in no way interfered with his Supervisor duties and thus the appellants were entitled to qualified immunity.

To read the full opinion, please visit

Panel (if known): Vanaskie, Greenberg, and Cowen, Circuit Judges

Argument Date: December 8, 2014

Argument Location:

Date of Issued Opinion: March 6, 2015

Docket Number: 13-3646

Decided: Vacated and Remanded

Case Alert Author: Cheri Snook

Counsel: Edward J. Easterly, Esq., Steven E. Hoffman, Esq., for appellants; Michael S. Fettner, Esq., Cletus P. Lyman, Esq., Michael T. Sweeney, Esq., for appellees

Author of Opinion: Judge Cowen

Circuit: 3rd Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 03/23/2015 03:42 PM     3rd Circuit  

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