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The 3rd U.S. Circuit Court of Appeals has upheld the dismissal of a civil rights suit against Pennsylvania Attorney General Mike Fisher, brought by a 10-year veteran senior deputy attorney general who claimed he was fired for publicly complaining that Fisher had devastated office morale by demanding resignation letters from all at-will employees soon after he was elected to office in 1996. The appellate panel found that Matthew W. Tomalis cannot claim that his firing violated his First Amendment rights due to the nature of his comments, his high rank and “the scope and importance of his role.” Significantly, the court also found that Fisher can’t be sued for discriminating on the basis of political affiliation since Tomalis’ post was a policy-level job that requires a high degree of loyalty. Tomalis had complained in a letter published in several newspapers that Fisher’s request for resignation letters had damaged employee morale even more than the then-recent resignation of Attorney General Ernest D. Preate in the wake of federal criminal charges. In the letter, Tomalis wrote: “I resent the implication of your request for my resignation that I had anything to do with Preate or his crimes. … I feel that our livelihoods have been put at risk as part of a political maneuver.” U.S. District Judge William L. Standish dismissed Tomalis’ civil rights suit last year after finding that his free speech rights were outweighed by Fisher’s interests in maintaining an efficient office. Now, in Tomalis v. Attorney General of Pennsylvania, the 3rd Circuit has upheld Standish’s decision. “While Tomalis’ right to speak out on the issues he chose to address is indeed significant, on balance, we believe it is superseded in this case by Fisher’s interest in promoting the efficiency of the public service he and the OAG [Office of Attorney General] perform,” Senior U.S. Circuit Judge Robert E. Cowen wrote. “Tomalis’ comments could undercut the morale of the OAG, cause disruption, and hinder its operations,” Cowen wrote in an opinion joined by U.S. Circuit Judge Samuel A. Alito and visiting Federal Circuit Judge Alan D. Lourie. Tomalis worked as a tax lawyer in the Attorney General’s Office from 1987 to 1997. By the time he was fired, he had achieved the rank of deputy attorney general IV. He was initially hired by Republican Attorney General Roy Zimmerman, but during his employment, Tomalis was not affiliated with either the Democratic or the Republican Party. Tomalis claimed in the suit that he was a political Independent and was never told that political affiliation was a requirement for his position. Fisher was elected state attorney general in November 1996. He succeeded Thomas Corbett, who had been appointed to the post by Gov. Tom Ridge to fill out the unexpired term of Preate, who pleaded guilty to federal political corruption charges and resigned from office. Fisher quickly sent a letter to all at-will employees in the OAG, including Tomalis, requesting that they submit their resignations within one week. Instead of submitting a letter of resignation, Tomalis wrote a letter in response that said, among other things, that the wholesale request for resignations was devastating to office morale. Within the first few months of Fisher’s tenure, Tomalis said he was asked to prepare a list of all cases he was handling for the Commonwealth. In doing so, Tomalis said, he learned that the parties in some of the cases had contributed money to Fisher’s 1997 inaugural committee. Tomalis said he was concerned about possible conflicts of interest and decided to inform his superiors in a staff meeting. Soon after, Tomalis was fired. In his lawsuit, Tomalis claimed that he was illegally punished for exercising his First Amendment rights and for his lack of Republican Party affiliation. Tomalis’ lawyer urged the appellate court not to consider Tomalis a “policymaker” but instead to view his position as a litigator in the OAG’s tax department more like that of a “technician” or “line attorney.” The 3rd Circuit disagreed, saying the rank of deputy attorney general IV is “the highest classification possible in the OAG for a staff attorney” that carries a job description with “substantial potential roles” and calls for working “independently except in extraordinary cases.” Cowen found that the post is also known as “Senior DAG” and allows for those who hold it to be in charge of a moderately sized regional office. But Tomalis insisted that in his case, the job description overstated his responsibilities. He noted that he had never supervised or evaluated other employees, performed investigative work or assigned cases and that he met Fisher only once, at a meeting involving all DAGs. As a result, Tomalis argued, he fell within an exception to the “policymaker” status test that is drawn from the U.S. Supreme Court’s decision in Elrod v. Burns in 1976 and Branti v. Finkel in 1980. In Elrod, the high court allowed patronage dismissals of only “policymaking” or “confidential” employees. But in Branti and the 1990 decision in Rutan v. Republican Party of Illinois, the test was broadened to “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for effective performance of the public office involved.” The Elrod-Branti-Rutan line of cases has been described as “striking a balance between the interests of the [government employee], as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.” Cowen said he was not convinced that Tomalis qualified for an exception to the policymaker test. “Tomalis did not act as a document clerk or paralegal, exercising no meaningful independent legal judgment that impacts the OAG’s position on tax matters. Rather, he was an attorney deeply enmeshed in the ebb and flow of important tax litigation for the Commonwealth, handling cases that have significant ramifications on policy and affect taxpayers beyond the particular litigants,” Cowen wrote. By his own admission, Cowen said, Tomalis “rendered advice and legal services on matters of significant scope, importance and complexity” and was sometimes responsible for “reviewing proposed regulations and providing commentary.” “Certainly, this is not the work of a mere ‘technician’ or ‘line attorney,’ whatever those phrases are intended to connote,” Cowen wrote. “Rather it is the work of a highly skilled, experienced, and specialized litigator whose personal, independent efforts and choices have real consequences for the OAG and the Commonwealth in the realm of tax law.” Cowen rejected the argument that Tomalis couldn’t have been a true policymaker since his work was reviewed to some degree. “If that rationale were stretched further, it might eviscerate the Elrod-Branti doctrine altogether, since almost all government employees answer to a superior of some variety and do not have the absolute, ‘final word’ on a particular issue,” Cowen wrote. Cowen also rejected Tomalis’ argument that he was illegally terminated for speaking out on matters of public concern. Under the law, Cowen said, Tomalis could not even meet the first prong of a First Amendment claim since he couldn’t show that his speech addressed a matter of public concern and was not outweighed by the interest of the employer in “promoting the efficiency of the public service it performs through its employees.” “Tomalis’ comments were not offhanded remarks directed at a few co-workers of equal or lower rank. Rather, one was directed to his superiors in the OAG and the other was copied to various newspapers, where portions of it were quoted,” Cowen wrote. “His words were extremely critical of Fisher and alleged that Fisher acted improperly. His letter regarding the wide-scale request for resignations accused Fisher of baselessly and ‘publically impugning’ the OAG employees, suggesting that they were involved with, and perhaps responsible for, the criminal conduct of former Attorney General Preate. The letter also accused Fisher of political maneuvering.” Although Tomalis had a “significant” right to speak out on such issues, Cowen found it was outweighed by Fisher’s need to run an efficient office. Cowen also found that Fisher had a “reasonably greater cause for concern when direct public criticism of him comes from one in a confidential position.” An elected attorney general, Cowen said, “cannot implement his goals and policies alone … [but] does so only through the individual attorneys that represent him in matters on a day-to-day basis.” Tomalis’ position, Cowen said, thrust him into an appellate court to speak on Fisher’s behalf in major pieces of tax litigation that could have long-lasting, statewide effects on policy and other taxpayers. “As such, Fisher has a vested interest in his loyalty, confidence and judgment,” Cowen wrote.

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