Gabe Canary v. H. Garry Osborn , Board of Education , Portsmouth City School District

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0156P (6th Cir.)
File Name: 00a0156p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GABE C ANARY ,
Plaintiff-Appellee,
v.
H. GARRY OSBORN , BOARD
OF EDUCATION , P ORTSMOUTH
C ITY S CHOOL DISTRICT ,
Defendants,
OTTO F. APEL, III, P HYLLIS
FULLER, R OBERT S TEVENS,
S TEVE S TURGILL, W ALTER R.
HICKMAN , J R.,
Defendants-Appellants.
;>

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No. 98-4218
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
Nos. 95-00944; 96-00253—Susan J. Dlott,
District Judge.
Argued: March 8, 2000
Decided and Filed: May 3, 2000
Before: WELLFORD, SILER, and GILMAN, Circuit
Judges.

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2 Canary v. Osborn, et al. No. 98-4218
_________________
COUNSEL
ARGUED: Bernard W. Wharton, McCASLIN, IMBUS &
McCASLIN, Cincinnati, Ohio, for Appellants. David G.
Torchia, TOBIAS, KRAUS & TORCHIA, Cincinnati, Ohio,
for Appellee. ON BRIEF: Bernard W. Wharton, R. Gary
Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati,
Ohio, for Appellants. David G. Torchia, TOBIAS, KRAUS
& TORCHIA, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The sole issue in
this interlocutory appeal is whether the individual members of
the Portsmouth (Ohio) City School District Board of
Education are entitled to absolute legislative immunity under
Bogan v. Scott-Harris, 523 U.S. 44 (1998), for their role in
voting against the renewal of Gabe Canary’s contract as an
assistant principal. Among other grounds, Canary brought
suit under 42 U.S.C. § 1983 on the basis that the defendants
violated his constitutional rights when they demoted him in
alleged retaliation for his “blowing the whistle” on a
suspected cheating scheme involving student achievement
tests. The defendants appeal the district court’s denial of their
motion for summary judgment, which was based on an
assertion of absolute legislative immunity. For the reasons set
forth below, we AFFIRM the judgment of the district court
and REMAND the case for further proceedings not
inconsistent with this opinion.
I. BACKGROUND
A. Factual background
Canary was hired by the Board in 1985 to serve as an
assistant principal. He worked at the McKinley Middle
No. 98-4218 Canary v. Osborn, et al. 15
that job’s duties to a new employee to perform.” In re Appeal
of Woods, 455 N.E.2d 13, 15 (Ohio Ct. App. 1982).
III. CONCLUSION
For all of the reasons set forth above, the Board members
failed to carry their burden of establishing that they were
entitled to summary judgment on their claim of legislative
immunity. We therefore AFFIRM the judgment of the
district court and REMAND the case for further proceedings
not inconsistent with this opinion.

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Second, the resolution did not “involve the termination of
a position.” There is no indication in the minutes of the
meeting that Canary’s contract was not renewed because the
Board no longer needed or wanted an assistant principal at
Portsmouth East. The defendants argue in their appeal that
their action was legislative because they “eliminat[ed] all
assistant principal positions within the . . . School District
. . . .” This argument, however, is questionable in light of the
r e c o r d o f t h e m e e t i n g i t s e l f . I n t h e
“appointment[s]/reappointment[s]” section, the minutes
reflect that two individuals, Michael Flaig and John
Hendricks, were either appointed or reappointed to serve as
“assistant principals” in the School District for the coming
school year.
Finally, unlike in Bogan, the record reflects that the alleged
action in this case did not have “prospective implications that
reach[ed] well beyond the particular occupant of the office.”
Shortly after Canary’s contract expired, the Board created a
new “student facilitator” position at Portsmouth East and
hired someone other than Canary to fill it. Cf. Rateree, 852
F.2d at 950 (noting, in support of a finding that certain budget
cuts were indeed legislative in nature, that “the plaintiffs’
positions were eliminated altogether and no one was hired to
replace them”). Although the defendants contend that such a
position did not require administrator-level certification, the
duties of these “facilitators,” which Osborn described during
his deposition, are quite similar to those of an assistant
principal.
Thus, the decision at issue did not necessarily have
“prospective [budgetary] implications” beyond Canary
himself. See Campana v. City of Greenfield, 38 F. Supp. 2d
1043, 1049 (E.D. Wis. 1999) (holding that the council
members’ vote authorizing the city mayor to suspend the city
treasurer was not legislative in nature because the action “had
no implications for the position of city treasurer in general”
and was “focused on the discipline of a particular city
employee”). Furthermore, “[a] job is not abolished under
circumstances where the appointing authority simply transfers
No. 98-4218 Canary v. Osborn, et al. 3
School and at the Portsmouth East High School during the
1992-1993 and 1993-1994 school years, respectively. In
addition to McKinley and Portsmouth East, the School
District includes the Harding and Wilson elementary schools.
At all times relevant to this case, the Board consisted of Otto
F. Apel, III, Phyllis Fuller, Walter R. Hickman, Jr., Robert
Stevens, and Steve Sturgill. H. Garry Osborn served as the
Superintendent of the School District.
In November of 1992, while working as the Assistant
Principal of McKinley, Canary attended a district-wide
meeting of various Portsmouth administrators. Among those
in attendance were Wanda Kinker, the Principal of Harding,
and Mike Welton, who at the time was the Principal of
McKinley and Canary’s immediate superior. During this
meeting, the administrators discussed ideas for increasing the
students’ achievement test scores. In an affidavit filed with
the district court, Canary asserts that the following exchange
took place:
Kinker stated that she would be coming to the schools in
the district and [would be] exhibiting actual tests and
answers to the principals for review. She said principals
would be allowed to copy the questions by hand, and
then could go over them with teachers in their
[respective] schools. I immediately objected to this
because it was cheating and I was aware of a case in
North Carolina where teachers had their certificates taken
away for doing the same thing. Kinker said she had been
doing this for years and that if anyone objected, she had
gotten rid of them.
. . . Welton was asked if he would allow this to be done
at McKinley . . . . He stated that I was in charge of
testing and that we would not allow cheating at
McKinley.
Despite Canary’s and Welton’s stated objections at the
November 1992 meeting, Canary came to believe that “actual
tests had been shown to and hand-copied by teachers at
Wilson . . . .” As a result, Canary wrote to E. Roger Trent,

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then Director of the Division of Educational Services at the
Ohio Department of Education. In his letter, Canary
recounted part of the November 1992 meeting and requested
an investigation into the matter. Specifically, he wrote as
follows:
It is common knowledge here that the cheating was
directed from the superintendent aids [sic], and they
indicated that they had been told to do so.
. . .
I feel certain that an investigation will reveal a
conspiracy to cheat that includes “top personnel” and
possibly board members.
I feel certain that a cover-up is now taking place.
I feel certain that plans are being made to retaliate against
myself and Mr. Welton based on statements . . . made to
me and others.
As a result of Canary’s letter, Trent notified Osborn that his
office had received allegations of possible test security
violations. He requested that Osborn conduct an investigation
and issue a written report of any action taken in response.
Osborn complied with Trent’s initial request by engaging
Richard Ross, the School District’s attorney, to conduct an
investigation into the matter. Ross interviewed various
administrators, including Canary, in connection with his
probe. During Canary’s interview, Ross allegedly accused
Canary of “being insubordinate for not going along with the
testing procedure . . . .”
Sometime between April and July of 1993, Ross submitted
a written report to Trent. After reviewing Ross’s assessment,
Trent communicated his conclusions to the School District,
via Ross, in a letter dated July 23, 1993. He found that “the
district was NOT in compliance with one of the fundamental
provisions of Rule 3301-12-06 [of the Administrative Code]:
the requirement that each district establish written procedures
No. 98-4218 Canary v. Osborn, et al. 13
reflected a discretionary, policymaking decision
implicating the budgetary priorities of the city and the
services the city provides to its constituents. Moreover,
it involved the termination of a position, which, unlike
the hiring or firing of a particular employee, may have
prospective implications that reach well beyond the
particular occupant of the office.
Id. at 55-56 (emphasis added).
Based on the above considerations, it becomes evident that
the members of the Board in the present case are not entitled
to summary judgment on their claim of legislative immunity.
Even “stripped of all considerations of intent and motive,” the
action in substance was not essentially and clearly legislative.
Unlike the ordinance in Bogan, the resolution proposed by
Osborn and adopted by the Board to not renew Canary’s
contract did not “b[ear] all the hallmarks of traditional
legislation.”
First, despite the fact that the minutes of the Board meeting
contain an entry indicating that the challenged action was
taken due to “the adverse financial status being faced by the
district,” the record does not otherwise reflect that the
decision was one “implicating the budgetary priorities of the
city and the services the city provides to its constituents.” On
the contrary, the minutes indicate that the Board went into
executive session for the specific purpose of “discuss[ing] the
employment of public employees.” Moreover, the
circumstances of the one-hour executive session—which
included short visits by some of the individuals under
review—suggest that the Board was making personalized
assessments of individual employees, not engaging in an
impersonal budgetary analysis of various positions. In fact,
the minutes explicitly indicate that the recommended
r e s i g n a t i o n s , c h a n g e s i n s t a t u s , a n d
appointments/reappointments constituted “personnel actions.”
See Rateree v. Rockett, 852 F.2d 946, 950 (7th Cir. 1988)
(“[E]mployment decisions generally are administrative . . . .”).

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12 Canary v. Osborn, et al. No. 98-4218
Bogan’s and Roderick’s motion to dismiss, which was based
on an assertion of legislative immunity. On appeal, the First
Circuit affirmed, holding that the challenged conduct was
administrative, not legislative. See Scott-Harris v. City of
Fall River, 134 F.3d 427 (1st 1997).
The Supreme Court reversed, holding that “local legislators
are . . . absolutely immune from suit under § 1983 for their
legislative activities.” Bogan, 523 U.S. at 49. The Court
made clear that the determination of whether an activity is
“legislative” must be made without regard to the legislators’
subjective intent. See id. at 54 (“[T]he [First Circuit]
erroneously relied on [the officials’] subjective intent in
resolving the logically prior question of whether their acts
were legislative.”); see also Tenney, 341 U.S. at 377 (“The
claim of an unworthy purpose does not destroy the
privilege.”). In other words, “[w]hether 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.
The proper inquiry, therefore, was “whether, stripped of all
considerations of intent and motive, [the] actions were
legislative.” Id. at 55.
Applying those standards to the facts before it, the Supreme
Court ruled that Bogan and Roderick were indeed entitled to
legislative immunity: “Roderick’s acts of voting for an
ordinance were, in form, quintessentially legislative. . . .
Bogan’s introduction of a budget and signing into law an
ordinance also were formally legislative, even though he was
an executive official. . . . Bogan’s actions were legislative
because they were integral steps in the legislative process.”
Id. (citations omitted). The Court then looked beyond
Roderick’s and Bogan’s “formal actions” to consider whether
the ordinance at issue was legislative “in substance”:
We need not determine whether the formally legislative
character of [Roderick’s and Bogan’s] actions is alone
sufficient to entitle [them] to legislative immunity,
because here the ordinance, in substance, bore all the
hallmarks of traditional legislation. The ordinance
No. 98-4218 Canary v. Osborn, et al. 5
protecting the security of test materials while they are in
school.” (Emphasis in original.) Specifically with respect to
the practice objected to by Canary and Welton, Trent wrote as
follows:
Although [Rule 3301-12-06] contains no specific
provision limiting the preview of test materials by
teachers, both Section 3319.151 of the Revised Code and
this rule clearly prohibit the use of materials for the
purpose of improving a student’s score. Encouraging
teachers to review the actual tests for the purpose of
“improving test-taking techniques[]” . . . is an activity
that, in certain high stakes situations, might result in
someone’s using the information to improve students’
scores.
We expect Portsmouth City Schools to discontinue
immediately the practice of encouraging or allowing
teachers to preview the tests currently being administered
by the district (or commercially-prepared alternative
forms of such tests) for the purpose of “improving test-
taking techniques.”
Trent ultimately concluded, however, that “there is no
concrete evidence that any one [sic] used the test materials to
reveal any specific test question to a student or to help any
student cheat . . . .”
In a separate but related dispute, another employee of the
School District, Michael Osborne, sued the Board in 1993
“relat[ing] to a forced vacation following an allegation that
[he] had disseminated actual achievement test questions to the
faculty at Wilson . . . .” (Michael Osborne, a teacher at the
Wilson Elementary School, is not to be confused with H.
Garry Osborn, the Superintendent of the School District.)
William K. Shaw, Jr. served as Michael Osborne’s attorney.
During the course of Shaw’s representation, he requested and
received from the Ohio Department of Education an
unredacted copy of Canary’s letter to Trent. Armed with
Canary’s letter, Shaw met with Osborn and Ross in June of
1993. During that meeting, Shaw complained that his client,

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Michael Osborne, was “being blamed and disciplined for
allegedly creating a teaching controversy” while Canary, who
Shaw characterized as “the driving force behind the State’s
investigation,” had not been “punished in any form.”
According to Shaw, Ross responded to the complaint by
stating that he and Osborn “would take care of Canary.”
Shaw also contends that “Osborn nodded as if in agreement
. . . .”
Shortly after Shaw’s meeting with Osborn and Ross,
Osborn asked Canary about the substance of his letter to
Trent. According to Canary, Osborn “angrily confronted”
him and asked “[W]hat is this horse[—] letter[?]” Osborn
testified during his deposition that, after learning from Shaw
that Canary had written the letter to Trent, he shared that
information with members of the Board: “I would assume that
I would have had a discussion with them about it or sent them
a copy [of the letter]. . . . You know, I can’t recall any
specific conversation, but I’m assuming that I would have
discussed it with them, and shared a copy with them and
counsel.” A copy of the letter was also distributed by Osborn
to other administrators. In July of 1993, Canary was
transferred from McKinley to Portsmouth East.
On March 10, 1994, the Board held one of its regular
meetings. Apel, Fuller, Hickman, Stevens, and Sturgill were
all in attendance. The minutes reflect that, after
approximately thirty-five minutes of discussing several
routine matters, the Board went into executive session “to
discuss the employment of public employees.” In addition to
the Board, other individuals were allowed to attend the
executive session, including Osborn and Ross. The closed
meeting lasted from 6:40 p.m. until 7:43 p.m. During that
time, various “outsiders” were permitted into the executive
session. For example, Shaw and Michael Osborne entered at
6:50 p.m. and exited at 7:13 p.m., and Welton attended from
7:22 p.m. until 7:41 p.m. Canary was not present for any part
of either the regular meeting or the executive session.
No. 98-4218 Canary v. Osborn, et al. 11
in a legislative manner when they voted to not renew
Canary’s contract. In response, Canary contends that the
defendants’ action “was simply an administrative employment
decision.” Because we agree with Canary’s position as to the
factual nature of the inquiry and whether the contested action
was legislative in nature in this case, we need not address the
question of whether a school board can ever be shielded by
legislative immunity.
The disposition of the present case requires a close
examination of Bogan. Janet Scott-Harris, the plaintiff in that
case, was the Administrator of the Fall River (Massachusetts)
Department of Health and Human Services (DHHS). During
her tenure, she received a complaint that one of her temporary
employees had made several racial and ethnic slurs about the
employee’s colleagues. Scott-Harris responded by preparing
termination charges against the employee. The employee,
however, was able to forestall termination by using her
political connections with the Fall River City Council to
obtain a hearing on the matter. As a result of the hearing, the
employee agreed to be suspended without pay for sixty days.
Daniel Bogan, the mayor of Fall River, eventually reduced the
length of the suspension.
While the charges against the employee were pending,
Bogan had prepared his annual city budget proposal.
Anticipating a reduction in revenue, Bogan proposed freezing
municipal employee salaries and eliminating 135 jobs.
Included in his proposal was the elimination of the DHHS, of
which Scott-Harris was the sole employee. The City Council
Ordinance Committee, chaired by Marilyn Roderick,
approved an ordinance eliminating the DHHS. After the city
council adopted the ordinance, Bogan signed it into law.
Scott-Harris thereafter filed a § 1983 action against Fall
River, Bogan, Roderick, and others, alleging that “the
elimination of her position was motivated by racial animus
and a desire to retaliate against her for exercising her First
Amendment rights in filing the complaint against [the
employee].” Bogan, 523 U.S. at 47. The district court denied

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Constitution, see U.S. C ONST . art. I, § 6, has been
summarized as follows:
In order to enable and encourage a representative of the
public to discharge his public trust with firmness and
success, it is indispensably necessary, that he should
enjoy the fullest liberty of speech, and that he should be
protected from the resentment of every one, however
powerful, to whom the exercise of that liberty may
occasion offense.
Tenney, 341 U.S. at 373 (citation and internal quotation marks
omitted). It is the defendants’ burden to establish the
existence of absolute legislative immunity. See Kamplain v.
Curry County Bd. of Comm’rs, 159 F.3d 1248, 1251 (10th
Cir. 1998).
Recently, the Supreme Court extended this “venerable
tradition” to local legislators, making them “absolutely
immune from suit under § 1983 for their legislative
activities.” Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998).
It reasoned as follows:
The rationales for according absolute immunity to
federal, state, and regional legislators apply with equal
force to local legislators. Regardless of the level of
government, the exercise of legislative discretion should
not be inhibited by judicial interference or distorted by
the fear of personal liability. Furthermore, the time and
energy required to defend against a lawsuit are of
particular concern at the local level, where the part-time
citizen-legislator remains commonplace. And the threat
of liability may significantly deter service in local
government where prestige and pecuniary rewards may
pale in comparison to the threat of civil liability.
Id. at 52 (citations omitted).
As previously noted, the defendants argued in support of
their summary judgment motion that the members of the
Board are entitled to such immunity because they were acting
No. 98-4218 Canary v. Osborn, et al. 7
The results of the Board’s closed meeting are set forth in its
minutes under the title “personnel actions,” and are further
divided into “resignations,” “change[s] in status,” and
“appointment[s]/reappointment[s].” As for the first of these
categories, the minutes reflect that the Board accepted the
resignations of a teacher/tutor and of a custodian. The third
category lists eight principals and assistant principals,
including Kinker, who were appointed or reappointed, along
with their respective contract start dates.
Five individuals are listed under the “change[s] in status”
category. The minutes indicate that, after the Board changed
the title of one of its substitute teachers, it voted to not renew
the contracts of four certified administrators—Canary,
Kathleen Moore, Michael Osborne, and Welton. Each name
is listed separately, followed by their title as of the date of the
meeting, a summary of the expiring contract, and the position
to which they were newly appointed. For Canary, Michael
Osborne, and Welton, that new position was a demotion to
“Teacher, Continuing Contract.” The following explanation
is provided in the minutes for each of these “change[s] in
status”:
This action reflects the adverse financial status being
faced by the district. As a result of the financial
situation, it will be necessary to carefully analyze the cost
efficiency of other district positions and possibly
eliminate some positions which are important; but not
critical to the operation of the district. The possibility of
such action being taken in the future was communicated
to all administrators in March of 1991.
All of these decisions were made upon Osborn’s
recommendation, and were unanimously approved by the
Board. During the remainder of the meeting, the Board
discussed various financial reports and other miscellaneous
matters. By letter dated March 11, 1994, Osborn informed
Canary of the Board’s decision, and provided the following
explanation:

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8 Canary v. Osborn, et al. No. 98-4218
The action was taken as a reaction to the adverse
financial status being faced by the district. Difficult
situations often result in the need to take unpleasant
actions. We are sad for the discomfort and displeasure
the action may cause you. The best is wished for your
tenure as a district teacher.
Although not entirely clear from the record, the Board
apparently created two new “student facilitator” positions for
the School District sometime after March of 1994. Osborn
testified during his deposition that a student facilitator, among
other things, “helps with discipline, proficiency, testing,
guidance of young people, [and] counseling.” At least one of
the student facilitators was allocated to Portsmouth East,
where Joe Knapp served as the Principal. During the summer
of 1994, Canary, at the urging of Knapp, applied for that
position. He was not appointed. At the end of the summer,
Canary was informed that he would be assigned to teach at
McKinley for the 1994-1995 school year. It was then that he
learned that Jim Smith, another employee within the School
District, had been chosen to be the new student facilitator at
Portsmouth East.
B. Procedural history
Canary filed suit against Apel, Fuller, Hickman, Osborn,
Stevens, Sturgill, and the Board. He sued the members of the
Board in their individual and official capacities. In his
complaint, Canary alleged that the defendants “infringed upon
[his] right to speak out about matters of public concern by
retaliating against him and demoting him because he refused
to engage in the cheating scheme . . . and because he reported
the activity to the State of Ohio.”
The defendants filed a motion for summary judgment on
May 15, 1998. Among other things, they argued that Apel,
Fuller, Hickman, Stevens, and Sturgill were not liable in their
individual capacities because they were entitled to absolute
legislative immunity as established by Bogan v. Scott-Harris,
523 U.S. 44 (1998). The district court, by order dated
September 30, 1998, denied the defendants’ motion. In its
No. 98-4218 Canary v. Osborn, et al. 9
order, the district court concluded that the members of the
Board were not entitled to absolute legislative immunity
because “in not renewing particular employees’ contracts
while renewing others, the Board was making individual
employment decisions.”
In this appeal, the defendants do not contest the other
rulings contained in the district court’s order. Rather, they
take issue with the district court’s interpretation of Bogan and
argue that Bogan is indistinguishable from the present case.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s decision to grant or
deny summary judgment. See Smith v. Ameritech, 129 F.3d
857, 863 (6th Cir. 1997). Summary judgment is appropriate
when there are no genuine issues of material fact in dispute
and the moving party is entitled to judgment as a matter of
law. See FED . R. C IV . P. 56(c). In deciding a motion for
summary judgment, the court must view the evidence and
draw all reasonable inferences in favor of the non-moving
party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The judge is not “to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A genuine issue for trial exists when there is sufficient
“evidence on which the jury could reasonably find for the
plaintiff.” Id. at 252.
B. The district court did not err when it held that the
defendants were not entitled to absolute legislative
immunity
“Freedom of speech and action in the legislature was taken
as a matter of course by those who severed the Colonies from
the Crown and founded our Nation.” Tenney v. Brandhove,
341 U.S. 367, 372 (1951). The rationale supporting such
absolute legislative immunity, which was written into our

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