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Finding that a government worker’s First Amendment rights can be trumped by the government’s interest in efficient operations, a federal appeals court has upheld the dismissal of a civil rights suit brought by a city manager who said he was fired because he campaigned for political candidates who were running against his bosses on the city council — and lost. In Curinga v. City of Clairton, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that if such a worker has a policy-level position, the elected officials he works for have the right to fire him for campaigning against them since such conduct can harm a working relationship. The court found that plaintiff Domenic J. Curinga “occupied the most sensitive, high-level policy making appointive position in the city of Clairton, one that required confidentiality and a close working relationship with city council members to effectively implement their policies.” As a result, Chief U.S. Circuit Judge Anthony J. Scirica said, “Curinga’s campaign against the candidates who won the election impaired the reconstituted city council’s interest in efficient operations.” Curinga’s case was unusual because he is a Democrat who claims he was fired by Democrats because he supported the Democrats who opposed them in a primary. Applying the balancing test established by the U.S. Supreme Court in its 1968 decision in Pickering v. Board of Education, Scirica found that Curinga’s claim failed because “under this set of facts, the strong government interest [in efficient operations] outweighs the employee’s [right of free] speech.” Even if he focused on his freedom to associate rather than freedom of speech, Curinga’s claim fared no better, Scirica said, due to the Supreme Court’s 1976 in Elrod v. Burns. In Elrod, Scirica said, the justices created some protection for government workers against firing on the basis of party affiliation, holding that “mere political association is an inadequate basis for imputing disposition to ill-willed conduct.” But Elrod recognized an exception for policy-level employees, Scirica noted, allowing their dismissals based on political affiliation. Elrod usually applies to firings of workers with different political affiliation from their newly elected bosses, Scirica noted, because “members of the same party are presumed to share common interests and goals, and patronage appointments usually come from the same party as the elected official.” But Scirica found that, as Curinga’s case illustrated, “identical party affiliation does not necessarily ensure the subordinate’s loyal adherence to the superior’s policies. Primary election fights can be famously brutal, sometimes more so than contests in the general election, and animosity between candidates is likely to result.” Scirica found that the U.S. Supreme Court “has not yet directly confronted a situation where a policymaker is terminated both for political affiliation and speech.” The federal circuits have split on the question, Scirica noted, with some applying Pickering and others applying Elrod. Scirica concluded that Pickering was the appropriate test, but that an Elrod analysis also barred Curinga’s suit. “The duties of the city manager required the management of all city departments, hiring and firing city employees, representing the city at meetings, and implementing policies promulgated by the city council. No nonelective position in the city of Clairton carried greater policy making responsibility,” Scirica wrote. “Because of Curinga’s conduct, the … council members had good reason to doubt whether they could rely on him to follow and implement their policies, or whether he would instead obstruct the implementation of policies of the new administration, policies presumably sanctioned by the electorate,” Scirica wrote. According to the opinion, Curinga was appointed municipal manager of the city of Clairton in August 1997. Prior to his appointment, Curinga had served two terms on the Clairton City Council and one term as its mayor. As municipal manager, Curinga was responsible to the city council “for the administration of all municipal affairs.” In his deposition, Curinga described his position as “run[ning] the day-to-day business operations of the city,” noting that he oversaw all city departments and supervised and managed all city employees, including the finance director, public safety director, public works director, fire chief and police chief. Duringa also had the power to appoint, suspend, or remove all municipal employees and administrative unit heads with the advice and consent of the council. In 1999, while employed as municipal manager, Curinga ran for the position of district justice as an “Action Team” Democrat. The “Action Team” ticket ran against the “regular” Democratic Party’s ticket in the primary election. The “regular” party’s endorsed ticket included City Councilman incumbent George Adamson and candidate Dominic Virgona, who was challenging incumbent City Councilwoman and “Action Team” Democrat Ruth Pastore. The election grew contentious when Curinga spoke out against Virgona over a dispute about membership restriction in the Sons of Columbus, an Italian ethnic heritage group both belonged to. The Democratic candidates had attended a “Meet the Candidates” forum sponsored by the First AME Church of Clairton. During the session, a member of the audience questioned Curinga about alleged racial discrimination at the Sons of Columbus, asking “How could you say you are going to be a fair magistrate when you’re a member of an organization, a club, that does not allow blacks admittance?” Curinga was upset that two other club members present at the forum — Virgona and Curinga’s opponent for district justice, Armand Martin — failed to come to the club’s defense. The incident prompted Curinga to write “An Open Letter to the Membership of the Sons of Columbus,” that criticized Virgona and Martin for failing to defend the fact that African-Americans are not permitted to join the Sons of Columbus. “You, the members of the Sons of Columbus should know that Domenic Virgona and Armand Martin both stood back and were ashamed to admit that they are members of our organization. Why did they just step back? Why didn’t they help to explain that our organization is an ethnic society, promoting our Italian heritage?” the letter said. As a result of the letter, the Sons of Columbus expelled Virgona from the club. Virgona later said that the letter and the resulting expulsion damaged his relationship with Curinga. “I was highly upset [about the letter] … [because Curinga] was attacking me and I wasn’t running against him. But he had a purpose for attacking me that if Ruth Pastore won, he was sure that his job still existed,” Virgona testified. In May 1999, Curinga lost to Martin in the district justice primary election, and Pastore lost her seat on the city council to Virgona. As Scirica described it, “the ‘regular’ Democratic Party candidates prevailed over the ‘Action Team’ Democrats and the balance of power in the city council shifted to the ‘regular’ Democratic Party representatives.” When the new city council met for the first time in January 2000, it terminated Curinga’s contract.

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