ROSE v. STEPHENS
291 F.3d 917 (2002)
Gary W. ROSE, Plaintiff-Appellant,
v.
Robert F. STEPHENS, individually and in his official capacity as Secretary of the Justice Cabinet, Commonwealth of Kentucky, Defendant-Appellee.
No. 00-6542.
United States Court of Appeals, Sixth Circuit.
Argued March 21, 2002.
Decided and Filed June 3, 2002.
Bernard Pafunda (argued and briefed), Pafunda Law Offices, Lexington, KY, for Plaintiff-Appellant.
Sheryl G. Snyder (argued and briefed), David L. Hoskins (briefed), Frost, Brown & Todd, Louisville, KY, for Defendant-Appellee.
Before NORRIS, SILER, and GILMAN, Circuit Judges.
OPINIONALAN E. NORRIS, Circuit Judge.
Plaintiff Gary W. Rose appeals the district court's grant of summary judgment for defendant Robert F. Stephens in this 42 U.S.C. § 1983 action. Plaintiff argues that his termination from the position of Commissioner of the Kentucky State Police violates the First Amendment of the United States Constitution and the Kentucky Whistleblower Act, K.R.S. Chapter 61. For the reasons discussed below, we affirm the district court's grant of summary judgment for defendant.
I.Plaintiff was appointed to the position of Commissioner of the Kentucky State Police in 1995 and was employed in this position until August 1999 when he was terminated by defendant, the Secretary of Kentucky's Justice Cabinet. Plaintiff's termination resulted from a dispute between himself and defendant over his refusal to withdraw a memorandum which he had submitted to defendant and the governor of Kentucky announcing his decision to eliminate Pat Simpson's position as deputy police commissioner. Simpson was promoted to the position of deputy commissioner by plaintiff at the request of the governor in 1997.
The memorandum contains a lengthy description of disruptive and inefficient actions taken by Simpson and announces plaintiff's decision to abolish the position of deputy commissioner and reassign Simpson to a lower ranking position as a result of his conduct. The memorandum includes allegations that Simpson interfered with hiring and disciplinary decisions; that he authorized unnecessary and wasteful equipment purchases; that he requested unnecessary transfers of personnel; and that he spread rumors that the governor intended to fire plaintiff and another officer.
In his deposition plaintiff acknowledged that he wrote the memorandum in his official capacity as commissioner, and that he included the detailed allegations against Simpson primarily as background information to support his decision to eliminate Simpson's position. Furthermore, plaintiff stated that the "operative paragraph" of the memorandum was on page three where he stated his intention to eliminate Simpson's position.
1. The Court has not directly addressed this issue. However, in O'Hare Truck Serv., Inc. v. City of Northlake, Ill.,518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), it implied that the Pickering balance may apply in "mixed" cases such as this one:
A reasonableness analysis will also accommodate those many cases, perhaps including the one before us, where specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement. In those cases, the balancing Pickering mandates will be inevitable.
518 U.S. at 719, 116 S.Ct. 2353. O'Hare held that the government could not constitutionally condition the award of a city towing contract to an independent contractor on the basis of political affiliation. Id. at 720, 116 S.Ct. 2353. The Court did not directly address the situation presented by the instant case because the plaintiff in O'Hare was clearly not a policymaking or confidential employee. As we discuss in more detail below, the rule we adopt today is consistent with the Court's statements in O'Hare because we hold that the Pickering balance applies to these mixed cases but that the balance favors the government as a matter of law in a specific subset of them, i.e., where the employee speaks on political or policy-related issues.
2. In this respect we note that the Court in Elrod rejected the government's argument that patronage dismissals of lower-level employees were justified by the need for efficiency, stating that "[t]he inefficiency resulting from the wholesale replacement of large numbers of public employees every time political office changes hands belies this justification." 427 U.S. at 364, 96 S.Ct. 2673. However, it nevertheless determined that the government's interest in securing loyal employees was sufficient in itself to justify the practice for policymaking and confidential employees. Id. at 367, 96 S.Ct. 2673. The situation presented by the instant case implicates both the government's interest in loyalty and its interest in efficiency and, therefore, provides an even stronger justification for permitting the government flexibility than the pure patronage dismissal case.
3. We do not adopt the broader position of the Ninth Circuit precisely because it is not necessarily the case that the government's interest as employer will outweigh the employee's free speech rights in all cases. This restriction is necessary because it is possible to conceive of situations where the government might terminate an employee for speech completely unrelated to the working relationship and thus would lack the justification that the speech impacted the efficient operation of the office.