Werkheiser et al v. Hess et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 8/8/13. (jam)

Werkheiser et al v. Hess et al

Doc. 14

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HAROLD WERKHEISER, Individually and
in his Official Capacity as a Supervisor of
Pocono Township,

CIVIL ACTION NO. 3:CV-13-1001
(JUDGE CAPUTO)

Plaintiff,
v.
POCONO TOWNSHIP, FRANK HESS,
Supervisor, and HENRY BENGEL,
Supervisor,
Defendants.
MEMORANDUM
Presently before the Court is Defendants Pocono Township, Frank Hess, and Henry
Bengel’s Motion to Dismiss Plaintiff’s Amended Complaint. (Doc. 9.) Plaintiff Harold
Werkheiser is an elected Supervisor and former Roadmaster of Pocono Township. He
contends that he was not reappointed Roadmaster because he engaged in protected First
Amendment conduct and that his replacement was appointed in violation of Pennsylvania’s
Second Class Township Code and the Sunshine Act.

In their motion to dismiss,

Defendants argue that the Amended Complaint fails to state claims for First Amendment
retaliation or violation of the Sunshine Act. Individual Defendants also assert that they are
entitled to absolute legislative and qualified immunity. Because the Amended Complaint
adequately states claims for First Amendment retaliation and violation of the Sunshine Act
and individual Defendants are not entitled to absolute legislative or qualified immunity based
on the facts as alleged by Plaintiff, the motion to dismiss will be denied.
I. Background
The Amended Complaint alleges the following:
Plaintiff Harold Werkheiser (“Werkheiser”) is an elected official serving on the three-

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member Board of Supervisors of Pocono Township. (Am. Compl., ¶ 2.) Defendants Frank
Hess (“Hess”) and Henry Bengel (“Bengel”) are the other elected Pocono Township
Supervisors. (Id. at ¶ 4.) Werkheiser was elected to a six-year term as Supervisor in 2007,
Hess was elected to a six-year term in 2009, and Bengel was elected to a six-year term in
2011. (Id. at ¶¶ 2, 4.) Defendant Pocono Township (the “Township”) is a Second Class
Township within the County of Monroe, Pennsylvania. (Id. at ¶ 3.)
Township Supervisors are permitted to hold positions of employment, such as
Roadmaster, with the Township. (Id. at ¶ 6.) After thirteen (13) years of service on the
Township road crew, Werkheiser was appointed Roadmaster in 2008. (Id. at ¶ 7.) He was
reappointed as Roadmaster every year thereafter through and including 2012. (Id. at ¶ 7.)
When Hess campaigned for Supervisor in 2009, he ran on a platform of fiscal
change. (Id. at ¶ 8.) He claimed if he was elected he would work for the Township without
wages, performing administrative duties consistent with his years operating a plumbing
business. (Id.) Bengel campaigned on a similar platform, and he pledged not to accept
employment with the Township. (Id. at ¶ 9.) When Bengel was elected, he filled Jane
Cilurso’s seat on the Board of Supervisors. (Id. at ¶ 10.) Jane Cilurso was the primary
administrator of the Township at that time Bengel was elected. (Id.)
Hess began receiving wages in 2011, and in 2012 he took over the administrative
duties formerly performed by Jane Cilurso. (Id. at ¶ 11.) Hess receives approximately
$36,000 per year in salary, health insurance, and other employee benefits, and he has the
titles of Chairman of the Board of Supervisors, Secretary, and Treasurer. (Id.)
Hess became temporarily disabled in January 2012, and he took leave from the
Township for ten days. (Id. at ¶ 12.) During his absence, Frank Froio (“Froio”) assumed
Hess’s administrative duties without appointment by the Board of Supervisors. (Id.) Froio
was selected by a consultant to the Township, Richard Manfredi. (Id.) On February 6, 2012,

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Bengel made a motion, seconded by Hess, to hire Froio as Township Administrator. (Id. at
¶ 14.) Froio’s compensation was set at $45.00 per hour for thirty (30) hours per week,
approximately $70,000 annually. (Id.) Werkheiser voted against the motion, but the motion
carried. (Id.)
As Froio’s position developed, Hess’s responsibilities and workload decreased. (Id.
at ¶ 15.) Hess, however, continued to collect approximately the same compensation. (Id.)
Werkheiser voiced his objection to the cost to the Township and the creation of a
new position with more expense. (Id. at ¶ 16.) Werkheiser also objected to paying Hess
when his duties were being performed by Froio. (Id.) Werkheiser similarly opposed the
appointment of an outside grant writer on the basis that grant-writing should be performed
by Froio and Hess. (Id.)
Thereafter, in or about December 2012, Hess and Bengel decided to replace
Werkheiser as Roadmaster by denying him annual reappointment for 2013. (Id. at ¶ 17.)
Although the termination of Werkheiser and appointment of Bengel as Roadmaster/Director
of Public Works was formally accomplished at a noticed reorganization meeting on January
7, 2013, deliberations and decisions occurred outside of that meeting. (Id. at ¶ 28.)
On December 14, 2012, at a meeting at Bengel’s home, Bengel gave Hess a letter
stating his interest in becoming Roadmaster. (Id. at ¶ 29.) Werkheiser was not at the
meeting at Bengel’s home, nor was he provided a copy of the letter. (Id. at ¶¶ 29-30.) Hess
and Bengel then confided their plan to appoint Bengel as Roadmaster with other Township
officials, including Froio and Township attorneys Jeffrey Durney and Jeffrey Stewart. (Id.
at ¶ 31.)
On December 18, 2012, Hess and Froio met with Stewart to discuss whether
Werkheiser would have the right to return to a position on the road crew if he was not
reappointed Roadmaster. (Id. at ¶ 32.) Werkheiser was not made aware of this meeting.

3

(Id.)

Bengel also discussed with Durney whether he could vote for himself for the

Roadmaster position. (Id. at ¶ 33.) Upon confirming that he could vote for himself, Bengel
resigned from his private employment. (Id.)

Thereafter, at the January 7, 2013

reorganization meeting, Werkheiser was replaced as Roadmaster by Bengel. (Id. at ¶¶ 28,
34.) But Bengel and Hess did not disclose at the meeting their private deliberations and
predetermination to appoint Bengel as Roadmaster. (Id. at ¶ 34.)
As a result of the foregoing, Plaintiff commenced the action in the Court of Common
Pleas of Monroe County, Pennsylvania. On April 18, 2013, Defendants removed the action
to this Court, and Werkheiser subsequently filed the Amended Complaint. The Amended
Complaint asserts claims for First Amendment retaliation (Count I) and violation of the
Second Class Township Code and Pennsylvania Sunshine Law (Count II). With respect
to the First Amendment retaliation claim, Werkheiser contends that “[s]peech about
overpayment for administrative duties was unrelated to the job of Roadmaster, and
plaintiff’s speech on these subjects was as a citizen and Supervisor responsible for the
governance of the Township.” (Am. Compl., ¶ 19.) This speech was a substantial and
motivating factor in the decision to replace him as Roadmaster with Bengel. (Id. at ¶ 18.)
As to Count II, Werkheiser claims that Hess and Bengel violated the Second Class
Township Code and the Sunshine Law by deliberating and taking action on the Roadmaster
position as a partial board without notice to the public or himself as the third Supervisor. (Id.
at ¶ 27.)
On May 31, 2013, Defendants filed a motion to dismiss the First Amendment
retaliation and Pennsylvania Sunshine Act claims. (Doc. 9.) Werkheiser filed a brief in
opposition to the motion to dismiss on June 17, 2013 (Doc. 11), and Defendants filed a
reply brief in further support of their motion to dismiss on July 1, 2013. (Doc. 13.)
Therefore, the motion to dismiss has been fully briefed and is ripe for disposition.

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II. Discussion
A.

Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,

in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.
Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are
not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such,
“[t]he touchstone of the pleading standard is plausability.” Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)

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identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998 F.2d
at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d
Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).

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B.

The Motion to Dismiss
Defendants seek dismissal of the First Amendment retaliation claim (Count I) and the

Pennsylvania Sunshine Act claim (Count II). For the reasons that follow, the motion to
dismiss will be denied.
1.

Count I- First Amendment Retaliation

Defendants argue that Count I of the Amended Complaint, First Amendment
retaliation, fails to state a claim upon which relief can be granted.1 Additionally, Defendants
Hess and Bengel assert that they are entitled to legislative and/or qualified immunity.
a.

Failure to State a Claim

The First Amendment to the United States Constitution provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, . . .” U.S. Const. amend. I. A First Amendment retaliation claim requires “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v. Independence
Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003)); cf. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009) (“To state a First

1

Werkheiser’s First Amendment retaliation claim is asserted against Defendants
pursuant to 42 U.S.C. § 1983. Section 1983 provides that “[e]very person who,
under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or
causes to be subjected, any citizen . . . or other person . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured, . . .” 42 U.S.C. § 1983. “To establish liability under 42
U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of
law, violated the plaintiff's federal constitutional or statutory rights, and thereby
caused the complained of injury.” Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.
2005) (citing Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d
Cir. 1998)).
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Amendment retaliation claim, a public employee plaintiff must allege that his activity is
protected by the First Amendment, and that the protected activity was a substantial factor
in the alleged retaliatory action.”).
Defendants maintain that Werkheiser fails to state a retaliation claim because he did
not engage in constitutionally protected conduct.

Specifically, they contend that

Werkheiser’s speech concerning waste of Township resources and overpayment for
administrative duties was made in his official capacity as a representative of the Township.
Defendants thus reason that Werkheiser’s First Amendment retaliation claim fails based on
the Supreme Court’s holding in Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L.
Ed. 2d 689 (2006).
Werkheiser disputes the applicability of Garcetti to his speech. He argues that
“speech as a duly elected supervisor is treated differently from speech as a public
employee,” and, accordingly, the standards governing public employee speech do not apply
here. (Doc. 11, 6-8.)
Garcetti addressed the free speech rights afforded to public employees, not elected
officials.

At issue there was “whether the First Amendment protects a government

employee from discipline based on speech made pursuant to the employee’s official duties.”
Garcetti, 547 U.S. at 413, 126 S. Ct. 1951. In Garcetti, the respondent, a deputy district
attorney, relayed concerns to his supervisors about what he perceived to be
misrepresentations in an affidavit used to obtain a search warrant. See Garcetti, 547 U.S.
at 414, 126 S. Ct. 1951. He followed up by preparing a disposition memorandum reiterating
his concerns and recommending dismissal of the case. See id. The respondent claimed
that he was subsequently subjected to retaliation based on his criticisms of the warrant. See
id. at 415, 126 S. Ct. 1951.
The Court held “when public employees make statements pursuant to their official

8

duties, the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.” Id. at 421,
126 S. Ct. 1951. In reaching this conclusion, the Court reiterated that “public employees
do not surrender all their First Amendment rights by reason of their employment. Rather,
the First Amendment protects a public employee’s right, in certain circumstances, to speak
as a citizen addressing matters of public concern.” Id. 547 U.S. at 417, 126 S. Ct. 1951
(citing, inter alia, Pickering v. Board of Education of Township High School Dist. 205, Will
Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), Connick v. Myers, 461
U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) and Rankin v. McPherson, 483 U.S.
378, 384, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987)). The relationship between the
speaker’s expressions and employment is significant as “[a] government entity has broader
discretion to restrict speech when it acts in its role as employer, but the restrictions it
imposes must be directed at speech that has some potential to affect the entity’s
operations.” Id. at 418, 126 S. Ct. 1951. This is because of the government employer’s
need to have a significant degree of control over the words and actions of their employees.
See id. The Court explained:
Employers have heightened interests in controlling speech made by an
employee in his or her professional capacity. Official communications have
official consequences, creating a need for substantive consistency and clarity.
Supervisors must ensure that their employees' official communications are
accurate, demonstrate sound judgment, and promote the employer's mission.
Id. at 422-23, 126 S. Ct. 1951. Thus, “the First Amendment does not prohibit managerial
discipline based on an employee’s expressions made pursuant to official responsibilities.”
Id. at 424, 126 S. Ct. 1951.
Defendants argue that Garcetti’s holding applies not only to public employees but
also elected officials. (Doc. 13, 2-3.) As support, Defendants cite Hogan v. Twp. of
Haddon, No. 04-2036, 2006 WL 3490353 (D.N.J. Dec. 1, 2006), aff’d, 278 F. App’x 98 (3d

9

Cir. 2008), Hartman v. Register, No. 06-CV-33, 2007 WL 915193 (S.D. Ohio Mar. 26, 2007),
and Shields v. Charter Twp. of Comstock, 617 F. Supp. 2d 606 (W.D. Mich. 2009). In
Hogan, the plaintiff was one of three elected township commissioners. See Hogan, 2006
WL 3490353, at *1.

The plaintiff alleged that she spoke out repeatedly on issues

associated with the governance of the township and that she was subsequently retaliated
against by one of the other commissioners. See id. at *2, *5. Following the holding in
Garcetti, the United States District Court for the District of New Jersey found that the
plaintiff’s First Amendment claim failed because the plaintiff’s speech was “made in her
capacity as a Township commissioner (and not a private citizen).” Id. at *6.2
Defendants also rely on the United States District Court for the Southern District of
Ohio’s decision in Hartman v. Register, 2007 WL 915913. In Hartman, the plaintiff was the
chairman of the township board of trustees. See id. at *1. The plaintiff claimed that the
township clerk retaliated against him in violation of the First Amendment after he contested
the accuracy of the official township meeting minutes prepared by the clerk. See id. at *1-3.
According to the court, the plaintiff’s complaint made clear that his opposition to the minutes
of the township meetings occurred in the context of his official duties as a trustee of the
township. See id. at *6. Citing Garcetti, the court noted “that to the extent Plaintiff alleges
[the clerk] retaliated against him for contesting the accuracy of the meetings of the Board
of Trustees, he was not engaged in activity protected by the First Amendment.” Id.
Although recognizing that the case before it differed from Garcetti insofar as the plaintiff and
the clerk were not in an employer-employee relationship, the court found this difference
immaterial since Garcetti “makes clear that speech made pursuant to an individual’s official

2

On appeal, the plaintiff argued that the district court improperly applied Garcetti.
See Hogan, 278 F. App’x at 102 n.1. The Garcetti arguments were not addressed
because the Third Circuit concluded that the plaintiff’s First Amendment rights
were not violated. See id.
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duties is not protected by the First Amendment.” Id. The court then stated that “[t]he
distinction between the public employee in Garcetti and an elected official in this case,
Plaintiff, is inconsequential.” Id. Accordingly, the plaintiff failed to state a claim for relief
under the First Amendment to the extent that the claim was based on his opposition to
approving minutes of the township board meetings. See id.
The final case relied on by Defendants is Shields v. Charter Twp. of Comstock, 617
F. Supp. 2d 606 (W.D. Mich. 2009). In Shields, the plaintiff, a former member of the
township board of trustees, claimed that the defendants violated his First Amendment rights
by preventing him, as a member of the board, from speaking during the time reserved for
citizen comment and by voting to adjourn the April 2, 2007 board meeting before he finished
his comments. See id. at 609. The court concluded that the plaintiff could not prevail on his
First Amendment claim and granted the defendants’ motion for summary judgment. See id.
at 613-16. Relying on Hogan and Hartman, the court reasoned that “[a]s a board member,
Plaintiff Shields may not technically have been an employee of the Township, but he surely
was a representative of the Township, and the concerns underlying Garcetti apply with
equal force to his situation.” Id. at 615. As an elected board member, the plaintiff submitted
to the board’s power to discipline its members for legislative speech, which included the
power to force board members to acquiesce in the board’s collective decisions regarding
the process of ongoing meetings. See id. “Unlike an ordinary citizen, Plaintiff represents
the Township when he speaks at a public board meeting. Thus, his constitutional rights are
more analogous to the employee in Garcetti than to a private citizen sitting in the audience.”
Id. at 615-16 (citing Hogan, 2006 WL 3490353, at *5-6; Hartman, 2007 WL 915193, at *7).
Accordingly:
[t]he Board must be able to take into account the content of Plaintiff's speech
when deciding whether to discipline him, or more routinely, whether to move
onto another agenda item or adjourn the meeting entirely. To rule otherwise
would allow one elected official to hold captive a legislative body and force his
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or her political adversaries to remain silent while the official denounces them
or simply turns the conversation to irrelevant matters. The First Amendment
allows Plaintiff to pursue aggressively this approach on the campaign trail, but
it does not require that he be afforded free reign to do so in every public
meeting.
Id. at 616. As such, the defendants were granted summary judgment on the plaintiff’s First
Amendment claim. See id.
Werkheiser, however, relying on then-Magistrate Judge Cathy Bissoon’s3 Report and
Recommendation in Zimmerlink v. Zapotosky, No. 10-237, 2011 U.S. Dist. LEXIS 53186
(W.D. Pa. Apr. 11, 2011), adopted as augmented by, 2011 U.S. Dist. LEXIS 53189 (May
18, 2011) (Cercone, J.), argues that speech by an elected official is treated differently than
public employee speech. In Zimmerlink, the plaintiff, an elected member of a county board
of commissioners, commenced an action under § 1983 against the other two members of
the board and the county for violations of the First and Fourteenth Amendments. See
Zimmerlink, 2011 U.S. Dist. LEXIS 53186, at *1. The plaintiff, the minority commissioner,
alleged that she was an outspoken critic of the other commissioners’ policies and practices.
See id. at *2. The commissioner defendants allegedly retaliated against the plaintiff by
hindering her ability to participate in official county business and vote at county board
meetings. See id. The plaintiff claimed that the defendants retaliated against her for
exercising her free speech rights and violated her equal protection rights under the
Fourteenth Amendment. See id. at *2-3. The defendants filed a motion to dismiss arguing
that the amended complaint failed to state First or Fourteenth Amendment claims, and,
alternatively, that the commissioner defendants were entitled to qualified immunity. See id.
at *3.
With respect to the First Amendment claim, the threshold issue addressed by Judge

3

She has since become a United States District Judge for the Western District of
Pennsylvania.
12

Bissoon was whether Garcetti applies to elected representatives. See id. at *5. First, Judge
Bissoon reviewed Supreme Court precedent on elected officials’ speech. See id. at *5-6.
Judge Bissoon found significant Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d
235 (1966), a case involving the exclusion of an elected Representative from membership
in the Georgia House of Representatives because of his statements criticizing federal policy
in Vietnam and Selective Service Laws. In Bond, the Court explained that “‘[t]he manifest
function of the First Amendment in a representative government requires that legislators
must be given the widest latitude to express views on issues of policy.’” Bond, 385 U.S. at
135-36, 87 S. Ct. 339. In rejecting a proposed distinction between legislators and “citizencritics,” the Bond Court emphasized:
The interest of the public in hearing all sides of a public issue is hardly
advanced by extending more protection to citizen-critics than to legislators.
Legislators have an obligation to take positions on controversial political
questions so that their constituents can be fully informed by them, and be
better able to assess their qualifications for office; also so they may be
represented in governmental debates by the person they have elected to
represent them.
Id. at 136-37. Judge Bissoon then noted that the Supreme Court, since Bond, has
reiterated the significance of elected officials’ free speech rights. See Zimmerlink, 2011 U.S.
Dist. LEXIS 53186, at *6-7 (citing Wood v. Georgia, 370 U.S. 375, 395, 82 S. Ct. 1364, 8
L. Ed. 2d 569 (1962) ("The role that elected officials play in our society makes it all the more
imperative that they be allowed freely to express themselves on matters of current public
importance."); Republican Party of Minnesota v. White, 536 U.S. 765, 781-82, 122 S. Ct.
2528, 153 L. Ed. 2d 694 (2002) (same)).
After discussing Garcetti, Judge Bissoon rejected the defendants’ suggestion that
Garcetti affected the viability of Bond. See id. at *8 (“But Garcetti, and the public employees
speech cases that preceded it, did not affect Bond.”). This, Judge Bissoon explained, is
because “[w]hile the government has interests as an employer justifying some regulation
of employees’ speech, the government has no interest justifying regulation of elected
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legislators’ speech. Id. at *8-9 (comparing Garcetti, 547 U.S. at 417, 126 S. Ct. 1951, and
Pickering, 391 U.S. at 568, 88 S. Ct. 1731, with Bond, 385 U.S. at 135-36, 87 S. Ct. 339).
Thus, since “‘the manifest function of the First Amendment in a representative government
requires that legislators be given the widest latitude to express their views on issues of
policy,’ the governmental interest in regulating speech of public employees to promote
efficient operations does not apply to speech of an elected official.” Id. at *9-10 (quoting
Waters v. Churchill, 511 U.S. 661, 675, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994)). Lastly,
Judge Bissoon explained why Garcetti cannot be applied to elected officials’ speech:
Under Garcetti, speech pursuant to a public employee's "official duties" is
afforded no protection under the First Amendment. Garcetti, 547 U.S. at 421.
Bond recognized that elected legislators have an "obligation" to speak on
political issues. Bond, 385 U.S. at 136. Thus, if Garcetti applied to elected
officials, speaking on political issues would appear to be part of an elected
official's "official duties." See Garcetti, 547 U.S. at 424-25 (noting that
determining "official duties" is a practical inquiry into whether a "task is within
the scope of the employee's professional duties"). But protection of such
speech is the "manifest function" of the First Amendment. Bond, 385 U.S. at
135. Garcetti, thus, cannot be applied to political speech of elected officials
consistently with Bond.
Id. at *10-11. Accordingly, the plaintiff’s political speech regarding budgetary and fiscal
matters, zoning practices, human resource issues, and contract awards was protected by
the First Amendment, and as the plaintiff adequately alleged all other elements for a First
Amendment retaliation cause of action, she was permitted to proceed with the claim.4 See
id. at *11.
While limited, other courts besides those cited by the parties have commented on

4

Following the close of discovery, the defendants filed a motion for summary
judgment. The motion was granted and judgment was entered in favor of the
defendants because the conduct by the commissioner defendants was insufficient
to deter the plaintiff from exercising her First Amendment rights. See Zimmerlink
v. Fayette Cnty., No. 10-237, 2012 WL 598198 (W.D. Pa. Nov. 29, 2012). The
plaintiff appealed the order granting summary judgment to the defendants, and the
appeal is currently pending before the Third Circuit. See Zimmerlink v. Zapotsky,
et al., No. 12-4426 (3d Cir.).
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the applicability of Garcetti to speech by elected officials. See, e.g., Siefert v. Alexander,
608 F.3d 974, 991 (7th Cir. 2010) (Rovner, J., dissenting in part) (dissenting from the
majority’s reliance on the balancing test from Pickering and Connick to evaluate elected
judge’s challenge to the Wisconsin Code of Judicial Conduct rule prohibiting judges and
judicial candidates from publically endorsing or speaking on behalf of a partisan candidate
or platform because “[n]either this court nor the Supreme Court, however, has ever held that
these decisions [Garcetti, Connick, or Pickering] limiting the speech of public employees
can be applied to elected officials’ speech, including the speech of elected judges.”);
Rangra v. Brown, 556 F.3d 515 (5th Cir. 2009); Jenevin v. Willing, 493 F.3d 551, 558 (5th
Cir. 2007) (“We are persuaded that the preferable course ought not draw directly upon the
Pickering-Garcetti line of cases for sorting the free speech rights of employees elected to
state office.”); Tarzia v. City of Stamford, No. 10cv1583, 2010 WL 4683929, at *9 (D. Conn.
Nov. 9, 2010) (noting that the Second Circuit has not explicated whether elected official
speech should be subjected to the Garcetti analysis but finding that under either analysis
the plaintiff failed to establish that he was likely to succeed on the merits of his claim);
Conservation Comm’n of the Town of Westport v. Beaulieu, No. 07-11087, 2008 WL
4372761, at *4 (D. Mass. Sept. 18, 2008) (Garcetti does not apply to appointed public
officials).
For example, the United States Court of Appeals for the Fifth Circuit’s panel decision
in Rangra addressed the question of “whether speech of elected state and local government
officials made pursuant to their official duties, like speech of non-elected public employees,
is less protected by the First Amendment than other speech.” Rangra v. Brown, 566 F.3d
515, 517 (5th Cir. 2009), vacated by 576 F.3d 531 (5th Cir. 2009) (granting rehearing en

15

banc),5 appeal dismissed as moot, 584 F.3d 206 (5th Cir. 2009).6 According to the Fifth
Circuit:
Job-related speech by public employees is clearly less protected than other
speech because the Court has held that government employees' speech rights
must be balanced with the government's need to supervise and discipline
subordinates for efficient operations. The First Amendment does not protect
government employees' job-related speech unless the speech is about a
matter of public concern, “and even then, a government employee may be
fired or disciplined for her speech if the government employer can show, on
balance, that the efficient operation of the office justified the action.” But when
the state acts as a sovereign, rather than as an employer, its power to limit
First Amendment freedoms is much more attenuated. That is because a
state's interest in regulating speech as sovereign is “relatively subordinate . .
. [as] [t]he government cannot restrict the speech of the public at large just in
the name of efficiency.” Garcetti itself, like the Court's other public employee
speech cases, recognizes the state's very limited power as sovereign to
infringe on First Amendment freedoms. None of the Supreme Court's public
employee speech decisions qualifies or limits the First Amendment's protection
of elected government officials' speech. Contrary to the district court’s
reasoning, there is a meaningful distinction between the First Amendment’s
protection of public employees’ speech and other speech, including that of
elected government officials.
Rangra, 566 F.3d at 522-24 (internal footnotes and citations omitted).
Relying on Supreme Court precedent, the Fifth Circuit concluded that the First

5

According to Rule 41.3 of the Fifth Circuit’s Internal Operating Procedures,
“[u]nless otherwise expressly provided, the granting of a rehearing en banc
vacates the panel opinion and judgment of the court and stays the mandate.” 5th
Cir. R. 41.3.

6

In Rangra, the plaintiffs were indicted in state court for violations of the criminal
provisions of the Texas Open Meetings Act by acting as a quorum in exchanging
emails discussing whether to call a council meeting to consider a public contract
matter. See id. at 518. The charges were ultimately dismissed. See id. Fearing
future prosecution and undue restriction of their First Amendment speech rights,
the plaintiffs commenced the action for declaratory and injunctive relief in federal
district court challenging as content-based speech regulations the criminal
provisions of the Texas Open Meetings Act. See id. Applying Garcetti, the
district court denied the plaintiffs’ requests for declaratory and injunctive relief
and reasoned that “[f]or purposes of determining what constitutes protected
speech under the First Amendment, there is no meaningful distinction among
public employees, appointed public officials, and elected public officials.” Rangra
v. Brown, No. P-05-CV-075, 2006 WL 3327634, at *5 (W.D. Tex. Nov. 7, 2006).
16

Amendment’s protection of elected officials’ speech is “robust and no less strenuous than
that afforded to the speech of citizens in general.” Id. at 524-25 (citations omitted).
Accordingly, the Fifth Circuit held that the district court incorrectly assumed that the
Pickering-Garcetti line of cases governed the dispute at issue. See id. at 526,
Following the panel’s determination in Rangra, 566 F.3d at 515, however, the Fifth
Circuit voted to rehear the case en banc. See Rangra v. Brown, 576 F.3d 531, 532 (5th Cir.
2009). Thus, the panel’s opinion was vacated. But, prior to addressing the merits of the
action, the Fifth Circuit, sitting en banc, dismissed the case as moot. See Rangra v. Brown,
584 F.3d 206, 207 (5th Cir. 2009) (en banc).
Considering the arguments of the parties, I will not apply Garcetti in this case.
Garcetti did not address the speech rights of elected officials, nor did it expand the speech
limitations on public employees to include elected officials. Thus, Garcetti’s holding and
reasoning did not alter the speech rights of elected public officials.
Moreover, there is a meaningful distinction between the speech of an elected official
and that of a public employee. As the Supreme Court emphasized in Bond, “[t]he manifest
function of the First Amendment in a representative government requires that legislators be
given the widest latitude to express their views on issues of policy.” Bond, 385 U.S. at 13536, 87 S. Ct. 339. The obligation on elected officials to take positions on controversial
political question ensures that their constituents are fully and adequately represented in
governmental debates. See id. at 136-37, 87 S. Ct. 339. Thus, while the government has
an interest as an employer in some regulation of its employees’ speech, the same concerns
do not arise in connection with speech of elected legislators because “the governmental
interest in regulating speech of public employees to promote efficient operations does not
apply to speech of an elected official.” Zimmerlink, 2011 U.S. Dist. LEXIS at *8-11.
Although this case differs from Zimmerlink insofar as it involves a dual-capacity Plaintiff-

17

Werkheiser was both a public employee (Roadmaster) and an elected official (Supervisor)the Amended Complaint alleges, and the parties’ submissions suggest, that Werkheiser’s
speech occurred in his capacity as an elected Township Supervisor. Therefore, Garcetti
is inapplicable to his speech as an elected official.7
Based on the facts as set forth in the Amended Complaint, Werkheiser adequately
alleges a First Amendment retaliation claim. The motion to dismiss the First Amendment
retaliation claim will be denied.
b.

Immunity

Defendants Hess and Bengel also argue that even if Werkheiser adequately alleges
a First Amendment retaliation claim, they are nonetheless entitled to legislative and/or
qualified immunity.
i.

Legislative Immunity

“Local legislators, like federal and state legislators, are absolutely immune from
liability for their legislative activities.” In re Montgomery Cnty., 215 F.3d 367, 376 (3d Cir.

7

Defendants further opine that the First Amendment claim against the Township
fails because “it is clear that Plaintiff is contending solely that Pocono is
vicariously liable for the conduct of Hess and Bengel.” (Doc. 10, 13.) “When a
suit against a municipality is based on § 1983, the municipality can only be liable
when the alleged constitutional transgression implements or executes a policy,
regulation, or decision officially adopted by the governing body or informally
adopted by custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)
(citing Monell v. Dep't of Social Servs. New York City, 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed .2d 611 (1978)). Because Werkheiser’s First Amendment claim
against the Township is based on a decision by the governing body and not on a
respondeat superior theory, the Township’s motion to dismiss the First
Amendment claim will be denied. See, e.g., Rinehart v. Mt. Penn Borough Mun.
Auth., No. 01-5628, 2002 WL 32341795, at*9 (E.D. Pa. Dec. 19, 2002) (“the
binding vote of the Authority's governing Board of Directors was a decision or
policy of the Authority itself, and if it violated the plaintiff's constitutional rights,
then the Authority itself can be held liable along with the individual members of
the Board.”).
18

2000) (citing Bogan v. Scott-Harris, 523 U.S. 44, 54-55, 118 S. Ct. 966, 140 L. Ed. 2d 79
(1998)). “Whether an act is legislative turns on the nature of the act, rather than on the
motive or intent of the official performing it.” Bogan, 523 U.S. at 54, 118 S. Ct. 966. An act
is legislative, and thus covered by absolute immunity, if it is “both substantively and
procedurally legislative in nature.” In re Montgomery Cnty., 215 F.3d at 376 (citing Carver
v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996)).
The Third Circuit has explained:
First, the act must be ‘substantively’ legislative, i.e., legislative in character.
Legislative acts are those which involve policy-making decision [sic] of a
general scope or, to put it another way, legislation involves linedrawing.
Where the decision affects a small number or a single individual, the legislative
power is not implicated, and the act takes on the nature of administration.8 In
addition, the act must be “procedurally” legislative, that is, passed by means
of established legislative procedures.
This principle requires that
constitutionally accepted procedures of enacting the legislation must be
followed in order to assure that the act is a legitimate, reasoned decision
representing the will of the people which the governing body has been chosen
to serve.
Gallas v. Supreme Court of Pa., 211 F.3d 760, 774 (3d Cir. 2000) (quoting Ryan v.
Burlington Cnty., 889 F.2d 1286, 1290-91 (3d Cir. 1989)).
Although “firing a particular employee is a personnel decision that does not involve
general policymaking,” In re Montgomery Cnty., 215 F.3d at 377, the termination of an
employee resulting from a change in policy regarding a department may be legislative. In
In re Montgomery County, the Third Circuit held that a Salary Board taking a vote to fire a
particular employee was not substantively legislative. See id. In Bogan v. Scott-Harris,
however, the termination of one employee was both procedurally and substantively
legislative where the mayor introduced a budget, took a vote, and signed into a law an

8

“This distinction has led [the Third Circuit] to distinguish between eliminating a
position and terminating an individual employee, characterizing the former as
legislative and the latter as administrative.” Kalinoski v. Lackawanna Cnty., 511
F. App’x 208, 212 (3d Cir. 2013) (citing Baraka v. McGreevey, 481 F.3d 187,
199-200 (3d Cir. 2007) (collecting cases)).
19

ordinance eliminating the employee's department. 523 U.S. at 47, 118 S. Ct. 966. The
Supreme Court reasoned that the act “reflected a discretionary, policymaking decision
implicating the budgetary priorities of the city and the services the city provides to its
constituents.” Id . at 55-56, 118 S. Ct. 966.
Defendants Hess and Bengel argue that their acts were both substantively and
procedurally legislative and that case law relating to employee termination is inapplicable
here because “[a]s plaintiff fully acknowledges, the decision to appoint another individual
as Roadmaster came at a reorganization meeting.” (Doc. 10, 17 n.2.)
Individual Defendants rely on Snyder v. Kraus, No. 08-5217, 2010 WL 742621 (E.D.
Pa. Mar. 2, 2010) in moving to dismiss the Amended Complaint based on legislative
immunity. In Snyder, the plaintiff, a township supervisor and former candidate for reelection
to the township’s board of supervisors, commenced a lawsuit alleging constitutional claims
related to his campaign for reelection. See id. at *1. Thereafter, the plaintiff was removed
from various boards, which he claimed was based on his decision to commence litigation.
See id. at *1-2. The supervisor defendants moved to dismiss the First Amendment claim
and argued that the decision to replace the plaintiff was effectuated “by a vote at the . . .
annual reorganization meeting.” Therefore, they claimed they were entitled to absolute
legislative immunity. Id. at *2.
In concluding that the supervisor defendants were entitled to legislative immunity, the
court cited 53 Pa. Stat. Ann. § 65602(c), which provides that a “board of supervisors may
appoint a supervisor to be employed as roadmaster, . . . or in any employe[e] capacity not
otherwise prohibited by this or any other act.” Id. The court emphasized the statute’s use
of the language “may appoint” made “clear boards of supervisors have discretionary
authority in this capacity.” Id. Because the board voted to appoint a different supervisor to
replace the plaintiff on various boards and authorities, the court found that “such a vote is

20

within the Board’s discretionary power and is thus a legislative activity entitled to absolute
immunity.” Id.
Applying Snyder, Defendants Hess and Bengel argue that because they voted to
appoint another individual as Roadmaster, the act of conducting such a vote falls within the
discretionary powers of the board. (Doc. 10, 16.) Thus, they conclude that they acted in a
substantively legislative capacity. Werkheiser disputes that Supervisors Hess and Bengel
were engaged in substantively legislative activity. Rather, he suggests that the refusal to
reappoint him as Roadmaster was an executive or administrative act.
The First Amendment claim against Defendants Hess and Bengel will not be
dismissed on grounds of legislative immunity. The decision not to reappoint Werkheiser
and instead appoint Bengel as Roadmaster was an administrative personnel decision. This
decision did not involve policy-making or linedrawing, such as office restructuring or position
elimination; it is instead more akin to the termination of a single employee, which the Third
Circuit has found to be administrative or executive in nature. See, e.g., In re Montgomery
Cnty., 215 F.3d at 377. Other courts have similarly concluded that decisions not to hire,
rehire, or reappoint an individual applicant to a particular position are administrative in
nature. See, e.g., Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 211 (2d Cir.
2003) (noting that the board members’ actions with respect to the plaintiff’s employment
were administrative, not legislative, in nature because the acts were part of a process by
which an employment situation regarding a single individual was resolved); Alexander v.
Holden, 66 F.3d 62, 67 (4th Cir. 1995) (finding “the elimination of a particular position’s
salary, the consolidation of that position with another, and a refusal to hire or reappoint [the
plaintiff] to the newly created position” to be an administrative personnel decision and
“refusing to reappoint or hire [the plaintiff] constituted administrative actions” not entitled to
legislative immunity protection); Smith v. Lomax, 45 F.3d 402 (11th Cir. 1995) (denying the

21

defendants’ request for legislative immunity after the board failed to reappoint the plaintiff
as county clerk); Schlarp v. Dern, 610 F. Supp. 2d 450, 458 (W.D. Pa. 2009) (finding
absolute immunity inapplicable to the defendants’ decision not to promote the plaintiff);
Dunleavy v. Wayne Cnty. Comm’n, No. 04-CV-74670, 2006 WL 1134417, at *4 (E.D. Mich.
Apr. 25, 2006) (“Legislative immunity simply does not apply when, as here, the action in
question involves no deliberative, policymaking or budgetary decision-making (i.e., a
legislative action), but is rather a decision, whether or not in the form of a vote on a
resolution, not to appoint or reappoint an individual applicant for a particular position (i.e.,
administrative action).”); Zdziebloski v. Town of E. Greenbush, 336 F. Supp. 2d 203-04
(N.D.N.Y. 2004) (“Not rehiring particular employee is an administrative personnel matter
that involves no policy formulation.”).
Additionally, Defendants Hess and Bengel’s argument that they are entitled to
legislative immunity because the decision to appoint Bengel as Roadmaster occurred by
vote of the Board of Supervisors is not persuasive. “A member of a local governmental
body does not necessarily act in a legislative capacity when his participation in the action
of the body takes the form of a vote; the action of the body must itself be legislative to make
the member's act of voting legislative.” Roberson v. Mullins, 29 F.3d 132, 134 n.3 (4th Cir.
1994); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 579 (9th Cir. 1984) (“Although a
local legislator may vote on an issue, that alone does not necessarily determine that he or
she was acting in a legislative capacity.”); see, e.g., In re Montgomery Cnty., 215 F.3d at
377 (“we need not consider whether the act of firing Wright by vote of the Salary Board was
procedurally legislative.

Regardless of the procedure, the act was not legislative in

substance.”); Abraham v. Pekarski, 728 F.2d 167, 174 (3d Cir. 1984) (noting in dicta that
“[t]he fact that the action complained of resulted from a vote of the members of the
governing body is not dispositive, for in the exercise of non-legislative powers all corporate

22

bodies require a vote of their governing bodies.”); see also Canary v. Osborn, 211 F.3d 324,
330-31 (6th Cir. 2000) (board members were not entitled to immunity because their vote
against the renewal of plaintiff's contract was not legislative in nature where their vote (1)
constituted a personnel action involving a personalized assessment of an individual
employee rather than mere budgetary considerations, (2) did not involve a true termination
of plaintiff's position, and (3) did not have prospective budgetary implications beyond the
current jobholder); Smith, 45 F.3d at 405 (“[the defendants] would have us determine that
the single act of voting for the person to be anointed clerk rendered their conduct immune
from suit. We decline to adopt such a sweeping definition of legislative immunity.”).
Lastly, 53 Pa. Stat. Ann. § 65602(c) does not by itself establish that Hess and Bengel
are entitled to legislative immunity. See 53 Pa. Stat. Ann. § 65602(c) (“The board of
supervisors may appoint a supervisor to be employed as roadmaster, laborer, secretary,
treasurer, assistant secretary, assistant treasurer or in any employe capacity not otherwise
prohibited by this or any other act.”). Subsection (c) simply permits a township to appoint
a supervisor to other employment positions, such as roadmaster or laborer. Or, stated
differently, subsection (c) allows a supervisor to hold other public employment with the
township in addition to his or her position as supervisor. Alone, section 65602(c) does not
render decisions to appoint or reappoint a supervisor as roadmaster legislative. Instead,
determining whether Defendants’ acts were legislative or administrative/executive requires
consideration of the nature and substance of the act. And, in light of the facts alleged here,
Defendants Hess and Bengel engaged in an administrative personnel decision impacting
a single employee. Absolute legislative immunity is not warranted based on the facts set
forth in the Amended Complaint.

23

ii.

Qualified Immunity

Individual Defendants also contend that even if Werkheiser states a First
Amendment claim and they are not entitled to absolute legislative immunity, they are
nevertheless entitled to qualified immunity. Individual Defendants argue that they did not
act in knowing violation of Werkheiser’s rights when they failed to reappoint him as
Roadmaster.

They also advance the argument that “multiple courts have held that

Defendants’ actions were not unlawful as Plaintiff’s speech is not protected by the First
Amendment.” (Doc. 13, 3-4.) And, even if the “Court [ ] disagree[s] with the decisions of
those Courts that have found Garcetti to be applicable to legislative speech, it cannot be
said that Defendants’ alleged violation was clearly established.” (Id. at 4.)
The Supreme Court has established a two-part analysis that governs whether an
official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
150 L. Ed. 2d 272 (2001). “Thus, we ask: (1) whether the facts alleged by the plaintiff show
the violation of a constitutional right; and (2) whether the right at issue was clearly
established at the time of the alleged misconduct.” Kelly v. Borough of Carlisle, 622 F.3d
248, 253 (3d Cir. 2010). Courts may address the two Saucier prongs in any order, at their
discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565
(2009). “A defendant has the burden to establish that he is entitled to qualified immunity.”
Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004).
A legal right is clearly established if “its contours [are] sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). “This is not to say
that an official action is protected by qualified immunity unless the very action in question
has previously been held unlawful, . . . but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.” Id. (citations omitted). This prong “of the qualified

24

immunity analysis therefore ‘turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was taken.’”
Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir. 2010) (quoting Pearson, 555 U.S. at
243, 129 S. Ct. 808).
Dismissal of the First Amendment claim on qualified immunity grounds is
inappropriate. First, Werkheiser sufficiently alleges that Defendants Hess and Bengel
retaliated against him in violation of his constitutional rights. Second, Werkheiser’s First
Amendment rights were clearly established at the time of the alleged constitutional violation.
Bond, as discussed above, clearly established that elected officials’ speech rights were no
different than the First Amendment rights of “citizen critics.” Bond, 385 U.S. at 135-37, 87
S. Ct. 339. Garcetti did not change this clearly established law, nothing in Garcetti indicates
that its holding is applicable to elected officials, and Garcetti did not affect Bond.
Furthermore, “the government interests justifying restrictions on public employee speech
do not exist in the context of political speech by elected officials, and Garcetti cannot be
applied to such speech consistently with Bond.” Zimmerlink, 2011 U.S. Dist. LEXIS 53186,
at *17 (finding the defendants were not entitled to qualified immunity on the plaintiff’s First
Amendment claim). Since the law regarding an elected official’s First Amendment speech
rights was clearly established at the time of the complained of action in this case, a
reasonable official would have understood that retaliating against Werkheiser because he
spoke as an elected official on issues concerning the Township would violate his
constitutional rights. Based on the facts as alleged in the Amended Complaint, Defendants
Hess and Bengel are not entitled to qualified immunity.
Lastly, Defendants Hess and Bengel’s suggestion that because other district courts
have found Garcetti applicable to speech by elected officials, Werkheiser’s rights were not
clearly established is unconvincing. The fact that “three district court opinions . . . applied

25

Garcetti to elected officials do[es] not alter controlling law that was clearly established by
Bond . . . .” Id. at *18-19 (citing Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 378,
129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009) (“We would not suggest that entitlement to
qualified immunity is the guaranteed product of disuniform views of the law in other federal,
or state, courts, and the fact that a single judge, or even a group of judges, disagree about
the contours of a right does not automatically render the law unclear if we have been
clear.”)).
In light of the foregoing, Werkheiser will be permitted to proceed with his First
Amendment claim against all Defendants. Werkheiser adequately states a retaliation claim
against the Township, Hess, and Bengel. Furthermore, Defendants Hess and Bengel are
not entitled to absolute legislative or qualified immunity under the facts as alleged in the
Amended Complaint.
2.

Count II- Second Class Township Code and Pennsylvania Sunshine Act

Count II of the Amended Complaint asserts claims for violations of the Second Class
Township Code and the Pennsylvania Sunshine Act. Defendants argue that the Sunshine
Act claim fails as a matter of law because Pennsylvania courts have held that subsequent
public action can cure the effect of prior formal action taken unlawfully in private. However,
Werkheiser asserts that public meetings cannot cure violations of the Sunshine Act where
decisions are pre-planned, or all meaning deliberation is held in secret before the public
meeting.
The Pennsylvania General Assembly enacted the Sunshine Act, 65 Pa. Cons. Stat.
Ann. §§ 701-714, in order to “provide citizens with an opportunity to observe the
deliberation, policy formulation and decision-making processes of public agencies.” Galena
v. Leone, 638 F.3d 186, 199 (3d Cir. 2011) (quoting Lee Publ'ns, Inc., v. Dickinson Sch. of
Law, 848 A.2d 178, 180 n.2 (Pa. Commw. Ct. 2004) (citing 65 Pa. Cons. Stat. Ann. § 702

26

(West 2000))). The Sunshine Act requires that: (1) “[o]fficial action and deliberations by a
quorum of the members of an agency . . . take place at a meeting open to the public;” (2)
“the vote of each member who actually votes on any . . . ordinance . . . must be publicly cast
. . . ;” (3) minutes must be kept of agency meetings; and (4) public notice be given in
advance of the meeting in a manner directed by the Act. Id. (citing 65 Pa. Cons. Stat. Ann.
§§ 704, 705, 706, 709 (West 2000))). “Deliberation” is defined as “the discussion of agency
business held for the purpose of making a decision,” while “official action” includes:
(1) Recommendations made by an agency pursuant to statute, ordinance or
executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion, proposal, resolution, rule,
regulation, ordinance, report or order.
65 Pa. Cons. Stat. Ann. § 703 (West 2000).
Werkheiser will be permitted to proceed with his Sunshine Act claim. Here, he
sufficiently alleges that Defendants Hess and Bengel constituted a quorum of the
Township’s Board of Supervisors and that they met in private with other Township officials
for the purpose of making decisions regarding the appointment of a Roadmaster. While
Defendants argue that the subsequent reorganization meeting cured any violations of the
Sunshine Act, see, e.g., Picone v. Bangor Area Sch. Dist., 936 A.2d 556, 563 (Pa. Commw.
Ct. 2007) (citing Association of Community Organizations for Reform Now (ACORN) v.
Southeastern Pennsylvania Transportation Authority (SEPTA), 789 A.2d 811 (Pa. Cmwlth.),
petition for allowance of appeal denied, 569 Pa. 695, 803 A.2d 736 (2002)), “Sunshine Act
cases are fact intensive.” Kaleta v. Clausi, No. 12-cv-1987, 2013 WL 2300478, at *6 (M.D.
Pa. May 24, 2013) (citing Smith v. Twp. of Richmond, 54 A.3d 404, 411 (Pa. Commw. Ct.
2012)).

Because Werkheiser adequately pleads facts that the January 7, 2013

reorganization meeting did not cure the alleged violations of the Sunshine Act, Count II of
27

the Amended Complaint will not be dismissed.
III. Conclusion
For the above stated reasons, the motion to dismiss will be denied.
An appropriate order follows.

August 8, 2013
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

28