CYR, Circuit Judge.
Patrick O'Connor, former Superintendent of Public Works for the Town of Nahant, Massachusetts ("Town"), was discharged following an extended feud with Selectman Robert Steeves. O'Connor sued the Town and its three selectmen — Steeves, Harry Edwards and Richard Lombard — for violating his First Amendment rights to freedom of speech and political association. The district court granted summary judgment for all defendants.
Summary judgment is appropriate if no genuine issue of material fact exists and the
Nahant, Massachusetts, is a municipality of approximately 4,200 people, located north of Boston. Under the Town Charter, a three-member Board of Selectmen serves as the "chief policymaking agency of the town." Selectmen serve staggered three-year terms; one seat on the Board is filled by election each year.
Among their other duties, the Selectmen are charged with appointing a Superintendent of Public Works (hereinafter "Superintendent"), whose duties are defined in the Town Charter:
The job description for the position notes that it is "performed with professional independence and considerable latitude for independent administrative judgment" and that "[e]rrors could result in major loss of time and expenses." It also notes that the Superintendent "makes frequent contacts with other officials and the general public." Commensurate with these responsibilities, the Superintendent receives a salary of $41,286; by comparison, the Nahant Police Chief and Nahant Fire Chief each receive $41,365, and the Nahant Superintendent of Schools receives $48,000. Lower level salaries in the Department of Public Works ["Department"] range from $20,000-$24,000 for laborers to $31,000-35,000 for foremen.
Prior to 1989, Robert Steeves served as Superintendent. The Town's three Selectmen at the time were Jayne Solomine, Richard Lombard, and Charles Kelley. In February 1989, following Kelley's death, Steeves was elected to the Board of Selectmen, triggering a search for a replacement Superintendent. The position was advertised as requiring "an associates degree in civil engineering or five years experience in related engineering fields."
Although O'Connor had no engineering degree, he submitted an application for the position. O'Connor had worked in construction prior to 1963; then as a foreman in a local manufacturing plant; then, following his retirement, in various positions for the Rynn Corporation, a family-owned construction company. More to the present point, perhaps, O'Connor had been active in the Solomine, Kelley, and Lombard election campaigns, having headed Solomine's initial campaign for public office in 1983. On July 20, 1989, O'Connor was appointed Superintendent, by a 2-1 vote, with Lombard and Solomine voting in favor. Steeves voted against the appointment, stating that O'Connor was unqualified and had been appointed because
Steeves and O'Connor
Notwithstanding O'Connor's appointment as Superintendent, Steeves continued his hands-on involvement in the Department, dealing with vendors, directing personnel, and making various small purchases on the Department's account. O'Connor believed that Steeves' continuing involvement "undermined" O'Connor's authority within the Department, and on several occasions in late 1989 O'Connor told Steeves he should stay "out of doing my job." At around the same time, O'Connor became aware of Steeves' practice of purchasing goods for personal use through the Department account, which was not subject to the 5% Massachusetts sales tax. Although Steeves later repaid the Department for these purchases, the record does not indicate that the sales tax was ever paid. After discussing the matter with Town Accountant Joseph Canty, O'Connor concluded that the practice was improper, and asked Steeves to stop "so we could have some accountability through the financial system and all these invoices and everything else." Steeves did not respond.
When his approaches to Steeves proved unsuccessful, O'Connor complained to Selectmen Lombard and Solomine about Steeves' conduct, including the improper use of the Department account. In January or February 1990, O'Connor wrote the Board, detailing his complaints about Steeves' purchasing practices. The letter was discussed at a "public meeting" of some kind, although O'Connor is not sure whether any members of the public were in attendance. Selectman Lombard told Steeves to stop using the Department account, and wrote all department heads directing them to instruct employees not to charge purchases on department accounts without authorization. In response to Lombard's letter, O'Connor drafted an internal memorandum prohibiting unauthorized purchases on the Department account. The memorandum had little noticeable effect. Steeves continued to charge personal purchases on the Department account.
In March 1990, O'Connor addressed another memorandum to the Board, again describing Steeves' personal use of the Department account, and requesting that these practices be stopped. Lombard read the memorandum at another Board meeting and issued Steeves another warning, but apparently Steeves did not terminate the practice. The various disputes between O'Connor and Steeves led to increased friction within the Department. By the spring of 1990, as all parties concede, the Department's employees had divided into two factions, which communicated poorly, apparently on unfriendly terms.
2. The Town Water Crisis
In late March 1990, shortly before the annual Town election, larger events temporarily distracted the parties from the dispute over Steeves' purchasing practices, and caused them to focus instead on the breakdown of communications within the Department. Three consecutive readings of the Town water supply revealed bacterial contamination; under Massachusetts law, the Department was required to notify the public and the Massachusetts Department of Environmental Protection ("DEP"), and to take steps to safeguard the Town water supply. O'Connor was notified of the contamination during a family emergency, and called on Steeves to take charge of notifying the DEP. Steeves later insisted that he promised O'Connor no specific assistance. Phillip Applin, a Department employee, testified that although he provided information to Steeves at O'Connor's direction, he did so with hesitation, "because Mr. Steeves was not supposed to be involved with bothering the Public Works employees." Applin also testified that, as late as April 6, 1990, O'Connor and Steeves obviously had not yet spoken to each other about whether the DEP had been notified. Apparently as a result of the breakdown in communications between the parties, neither DEP nor the Town was notified about the contamination for several days, and a number of Town residents became seriously ill.
The perceived mishandling of the water contamination problem generated considerable
Following Edwards' election and the correction of the water contamination problem, O'Connor resumed his complaints about Steeves' unauthorized purchasing practices. In May or June, O'Connor presented the Board with another invoice for a personal purchase by Steeves on the Department account. O'Connor also approached Edwards, the new Selectman, seeking to discuss Steeves' misuse of Department accounts. Edwards appeared uninterested.
At a Board meeting on May 24, 1990, Lombard moved to reappoint O'Connor as Superintendent; Edwards and Steeves blocked the motion. On June 28, 1990, Lombard again moved to reappoint O'Connor, but once again Edwards and Steeves blocked the reappointment. Edwards then moved to terminate O'Connor, but withdrew the motion without explanation. On July 12, 1990, O'Connor's termination again came up for a Board vote. Just before the vote, O'Connor left the meeting, went to his office, and returned with a number of Department invoices signed by Steeves, then proceeded to describe Steeves' improper conduct to those in attendance, stating that he wanted the townspeople to know "what was really going on in the city hall."
Lombard voted against O'Connor's termination; Edwards and Steeves voted in favor. Edwards later said he voted to terminate O'Connor because of the "mandate" he had been given by voters after the Town water crisis. Steeves later stated that he voted to terminate O'Connor because of O'Connor's alleged involvement in Solomine's unsuccessful reelection bid, and because O'Connor allegedly had told a Department employee not to vote for Edwards during the April 1990 elections, which O'Connor denies. In August, 1990, O'Connor sued, alleging, inter alia, that he had been discharged in retaliation for his political affiliation with Solomine, and for his accusations against Steeves.
A public employee may not be discharged, demoted, or disciplined for political activities or beliefs, unless political affiliation or belief is an appropriate job qualification for the particular position. See Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Assuming, without deciding, that political affiliation was a "motivating factor" for O'Connor's discharge, see Mt. Healthy City School Dist. Bd. of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); see also Acosta-Sepulveda v. Hernandez-Purcell, 889 F.2d 9, 12-13 (1st Cir. 1989); Rosado v. Zayas, 813 F.2d 1263 (1st Cir.1987), we affirm the grant of summary judgment against O'Connor, since we conclude that political affiliation was an appropriate
Although "[t]he difficulties in determining whether a government employee is protected from a politically motivated discharge are considerable," Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1214 (1st Cir.1989) (en banc), the test we apply is familiar. First, we inquire whether the overall functions of the employee's department or agency involve "decision making on issues where there is room for political disagreement on goals or their implementation," Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en banc), cert. denied, 481 U.S. 1014, 107 S.Ct. 1888, 95 L.Ed.2d 496 (1987); see also Rodriguez-Burgos v. Electric Energy Auth., 853 F.2d 31, 35 (1st Cir.1988); Goyco de Maldonado v. Rivera, 849 F.2d 683, 684-85 (1st Cir.1988). Second, we decide whether the particular responsibilities of the plaintiff's position, within the department or agency, resemble those of "a policymaker, privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement" for continued tenure. Jimenez Fuentes, 807 F.2d at 242. Among the indicia material to the second element are "`relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.'" Id. (quoting Ecker v. Cohalan, 542 F.Supp. 896, 901 (E.D.N.Y.1982)); see also Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255, 1258-59 (1st Cir.1987); see generally Stott v. Martin, 783 F.Supp. 970, 976-82 (E.D.N.C.1992) (collecting First Circuit case law following Jimenez Fuentes).
The summary judgment record establishes beyond peradventure that the Department "handled matters potentially subject to partisan political differences," Mendez-Palou, 813 F.2d at 1258, not unlike governmental departments in larger municipalities. See Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.1985), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985) (cautioning against "unduly myopic view" of "the role of politics in the seemingly apolitical context of universal provision of services").
Id. Here, the Department's role in the life of the Town plainly parallels the Water Department's role in Tomczak, which repeatedly has been cited in this circuit as a benchmark for evaluating the political responsibilities of public employment. See, e.g., Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 260 (1st Cir.1987) (finding administration of agrarian reform programs, by Puerto Rico's Regional Housing Administration, "at least as important to partisan political goals as the provision of water discussed in Tomczak"); see also Cordero v. De Jesus-Mendez, 867 F.2d 1, 15 (1st Cir.1989) (finding "no evidence of comparable responsibility" between Water Director's position in Tomczak and plaintiff's position as Administrative Aide to the Assistant Director of Public Works in Town of Moca, Puerto Rico); Roman Melendez v. Inclan, 826 F.2d 130, 133 (1st Cir.1987) (finding duties of Regional Manager in Puerto Rico's General Services Administration "analogous, in general character," to that of Water Director in Tomczak).
Moreover, whatever difficulties we might face in applying the second prong of the Jimenez Fuentes test to subordinate positions within the Department, see, e.g., Cordero, 867 F.2d at 14-15 (finding political affiliation inappropriate job requirement for assistant director of public works), the Superintendent's "inherent responsibilities" under the Town Charter, as the person "responsible for the administration of all departments within the scope of his duty," plainly "`had a bearing on the partisan goals and policies'" of the Department as a whole. Rodriguez-Burgos, 853 F.2d at 35 (quoting Mendez-Palou, 813 F.2d at 1263). O'Connor protests that, in practice, his position involved little managerial responsibility, and he was in fact "essentially a working foreman." As we have held, however, "the actual past duties of the discharged employee are irrelevant if the position inherently encompasses more expansive powers and more important functions that would tend to make political affiliation an appropriate requirement for effective performance." Mendez-Palou, 813 F.2d at 1258 (emphasis added). Accordingly, absent ambiguity in the official job description, the analysis must focus upon the "powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office." Jimenez Fuentes, 807 F.2d at 242; see also, e.g., Batistini v. Aquino, 890 F.2d 535 (1st Cir.1989); Mendez-Palou, 813 F.2d at 1258; cf. Stott, 783 F.Supp. at 976 n. 6 (noting that the Jimenez Fuentes court "did review plaintiffs' testimony about their actual duties," and concluding that "such testimony may be useful in filling gaps left by the official job description and in amplifying the responsibilities listed in the description ... [though not] to belittle the job into one with less significant responsibilities").
The district court carefully, and in great detail, analyzed the job description for the position of Superintendent, and its unchallenged findings — that seventeen of twenty-three listed duties are "policymaking," "representative," or "personnel" functions — comport with our "common sense judgment" on the matter. See Jimenez Fuentes, 807 F.2d at 242. As the district court correctly determined that O'Connor's political affiliation was an appropriate criterion for the position that he held, we affirm its grant of summary judgment on the political discharge claim.
O'Connor's alternative claim presents a closer question. Essentially, O'Connor contends that he was discharged because he disclosed Steeves' unauthorized use of the Department account; that these disclosures dealt with a matter of significant public concern;
1. Legal Standard and Standard of Review
A government employee retains the First Amendment right to speak out, as a citizen, on matters of public concern, so long as the employee's speech does not unduly impede the government's interest, as employer, in the efficient performance of the public service it delivers through its employees. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); see also Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Brasslett v. Cota, 761 F.2d 827 (1st Cir.1985). Three tests determine whether the court is presented with an actionable claim for the infringement of a public employee's First Amendment rights.
First, the court must determine, on the basis of "the content, form, and context of a given statement, as revealed by the whole record," whether the employee was speaking "as a citizen upon matters of public concern," or, alternatively, "as an employee upon matters only of personal interest." Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. If an employee's speech "cannot be fairly characterized as constituting speech on a matter of public concern," then its First Amendment value is low and "a federal court is not the appropriate forum in which to review the wisdom of a personnel decision" arising therefrom. Id. at 146-47, 103 S.Ct. at 1689-90.
Second, if the employee did speak out on a matter of public concern, the court must balance the strength of the employee's First Amendment interest, and any parallel public interest in the information which the employee sought to impart, against the strength of the countervailing governmental interest in promoting efficient performance of the public service the government agency or entity must provide through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. at 1734; Brasslett, 761 F.2d at 839. Though often imprecise,
Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (citations omitted; emphasis in original). As the Connick and Pickering determinations depend on whether the employee statements "are of a character which the principles of the First Amendment ... protect," Connick, 461 U.S. at 150 n. 10, 103 S.Ct. at 1692 n. 10, these determinations are always subject to de novo review. Id.; see also Rankin, 483 U.S. at 385-86, 107 S.Ct. at 2897; Brasslett, 761 F.2d at 835; see generally Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) ("in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden
Third, and finally, if the court determines that the public employee's First Amendment interests in speaking out outweigh a legitimate governmental interest in curbing the employee speech, the plaintiff-employee must show that the protected expression was a substantial or motivating factor in the adverse employment decision; and, if the plaintiff meets this test, the defendant governmental entity must be afforded an opportunity to show "by a preponderance of the evidence that [it] would have reached the same decision ... even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576; see also Duffy v. Sarault, 892 F.2d 139 (1st Cir.1989). This third test implicates questions of fact; "clear error" review is appropriate where judgment was entered after a trial on the merits, see Duffy, 892 F.2d at 144-45, whereas plenary review applies at the summary judgment stage. See Mesnick, 950 F.2d at 822.
2. Threshold Inquiry: "Matters of Public Concern"
The courts of appeals have adopted various approaches for determining whether a topic of employee speech is of "public concern," under the "threshold inquiry" required by Connick, 461 U.S. at 146, 103 S.Ct. at 1689. See, e.g., D. Gordon Smith, Note, "Beyond Public Concern: New Free Speech Standards for Public Employees," 57 U.Chi. L.Rev. 249, 258-61 (1990) (surveying case law). Some courts have adopted a content-based analysis, focusing exclusively on "`which information is needed or appropriate to enable the members of society' to make informed decisions about the operation of their government," McKinley v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir.1983) (quoting Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940)), in effect providing per se protection to public-employee speech on certain topics of "inherent" public interest, such as official malfeasance or abuse of office. See Koch v. City of Hutchinson, 847 F.2d 1436, 1446 n. 17 (10th Cir.) (en banc), cert. denied, 488 U.S. 909, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988). Other courts have adopted an analysis which turns either entirely or in part on the employee's subjective intent, i.e., on whether the employee's speech "was calculated to disclose misconduct" or to inspire public debate on some issue of significant public interest. Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.1988) (emphasis in original); see also Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir.1987) ("while the content of [plaintiff's] communications touched upon an issue of public concern generally.... such speech stands unprotected from employer scrutiny when uttered in the pursuit of purely private interests"); Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987) ("the mere fact that the topic of the employee's speech was one in which the public might or would have had a great interest is of little moment"); Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th Cir.1985) (Connick "requires us to look at the point of the speech in question: was it the employee's point to bring wrongdoing to light? Or to raise other issues of public concern, because they are of public concern? Or was the point to further some purely private interest?").
As our own case law implicitly recognizes, the circumstances of a particular case may govern the appropriate approach under Connick. Where a public employee speaks out on a topic which is clearly a legitimate matter
3. The Pickering Scale
As the content of O'Connor's allegations was of inherent "public concern" for First Amendment purposes, we proceed to the second test. Under Pickering, we are required to balance the significance of the interests served by the public-employee speech — including the employee's interests in communicating, and the interests of the community in receiving, information "on matters of public importance" — against the governmental employer's legitimate interests in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission. 391 U.S. at 568-575, 88 S.Ct. at 1734-38.
We note at the outset that O'Connor's motives for speaking out are properly weighed in the balance under Pickering. See, e.g., Versarge v. Township of Clinton, 984 F.2d 1359, 1366 (3d Cir.1993) (according "little weight," under Pickering, to plaintiff's "vengeful and obstructionist interests in speaking out on issue of public concern"). Thus, insofar as self-interest is found to have motivated public-employee speech, the employee's expression is entitled to less weight in the Pickering balance than speech on matters of public concern intended to serve the public interest. Id. Furthermore, we agree with the district court that O'Connor's motives, prominently including the evident self-interest in preserving his position as Superintendent, were less than altruistic.
Nevertheless, the legitimate interest of the Town's electorate in the type of information disclosed by O'Connor represents a public benefit entitled to great weight in the Pickering balance. Id. (citing O'Donnell v. Yanchulis, 875 F.2d 1059, 1061 (3d Cir.1989)) ("On plaintiff's side of the balance, we must also consider the interests of the public in plaintiff's speech"). O'Connor's disclosures concerned alleged abuse of public office on the part of an elected official, a matter traditionally occupying "the highest rung of the hierarchy of First Amendment values."
On the other side of the Pickering scale, the Town has yet to demonstrate its legitimate interest, as employer, in curtailing the specific disclosures which O'Connor alleges were the basis for his termination. Although the Town has shown considerable disruption in the Department operations, and serious deterioration in the working relations between O'Connor and Steeves, and their respective factions, it has not yet met its burden of showing that the disruption was attributable to the exercise of O'Connor's First Amendment right to speak out on this subject, so as to warrant discharging him on speech-related grounds. On the contrary, the disruption which occurred in Department operations may as readily be attributed to unrelated factors: for example, to Steeves' allegedly unauthorized interference in the Department operations. See, e.g., Zamboni, 847 F.2d at 79 ("in evaluating the disruption, if any, that resulted from [plaintiff's] criticisms ... the district court must consider whether any unrest was caused directly by [the plaintiff's] speech or whether it was exacerbated by defendants' actions"). Notwithstanding O'Connor's status as a "policymaking or confidential employee," see Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 995 (5th Cir.1992), whose position required close working relations with the Board of Selectmen, including Steeves, we cannot assume, absent some showing by defendants, that the erosion of their working relationship was due to O'Connor's protected speech. See Brasslett, 761 F.2d at 845-46 ("defendants must show that ... [plaintiff's] allegedly protected activity had a detrimental impact on" working relationships) (emphasis added); see also Versarge, 984 F.2d at 1367-68 (declining to consider disruptive effects of speech that was not alleged by defendants as grounds for plaintiff's expulsion).
One final point warrants mention. As the district court properly noted, O'Connor failed on several occasions to publicize his allegations of Steeves' misconduct directly to the community; instead, he chose to direct his disclosures to the Board of Selectmen.
The Town may have reserved its strongest defense for the next round. On the record before us, O'Connor would have grave difficulty demonstrating that the protected speech was a "substantial or motivating" factor in his discharge by the Town. Mt. Healthy, 429 U.S. at 274, 97 S.Ct. at 568.
As political affiliation was an appropriate qualification for the Superintendent position, we affirm the grant of summary judgment
O'Connor challenges any analogy to Tomczak, asserting that "the duties, size of staff and budget of the First Deputy Commissioner of the Water Department of Chicago ... differ materially" from those of the Nahant Superintendent. It is true, of course, that the $40 million operating budget and 1,150 employees controlled by the Water Department in Tomczak greatly exceed O'Connor's $60,000 departmental budget and fifteen person staff. But we think O'Connor's direct comparison, based exclusively on departmental size and budget, overlooks the equally dramatic differences in the populations and municipal budgets of Chicago and Nahant. Chicago's population is approximately 2.8 million; Nahant's approximately 4,200. Chicago's annual budget is approximately $3.2 billion; Nahant's approximately $4 million. We do not think governmental provision of essential public services is any the less prone to politicization in smaller communities; municipal services are as essential to the few as to the many. In light of the broader scope of the public services it provides, we think the role of the Department in the political life of Nahant is at least comparable to that of the Water Department in Chicago. Cf. Cordero, 867 F.2d at 15.
Rankin v. McPherson, supra, is the only other Supreme Court case to consider, in depth, the application of Connick's threshold test. Rankin concerned a law enforcement employee's private comment to a co-worker, in the aftermath of the assassination attempt against President Reagan: "if they go for him again, I hope they get him." 483 U.S. at 381, 107 S.Ct. at 2895. The Court found that the statement, in context, "plainly dealt with a matter of public concern," insofar as it "came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President." Id. at 386, 107 S.Ct. at 2898 (emphasis added). The Court paid little attention to the "form and context" of McPherson's statement, insofar as those factors bore on her motives for speaking; indeed, if the Court had done so, it probably would have found that the statement (which apparently occurred without premeditation, in a private conversation between co-workers) was motivated by little or no civic concern to inform the public on any relevant issue. Rankin suggests that the courts are to proceed to the second-stage Pickering inquiry whenever public-employee speech, objectively viewed in the context of a broader public discourse, addresses (with reasonable specificity) an issue or topic implicating "core" First Amendment concerns.
429 U.S. at 285-86, 97 S.Ct. at 575. Here, O'Connor's last-minute public revelation of Steeves' purchasing practices, at the July 10 Board meeting, suggests the precise situation which Mt. Healthy sought to avoid: an effort by O'Connor (when his discharge appeared inevitable) to place himself "in a better position" to raise a later constitutional challenge to his discharge.