Keith E. Johnson v. Andrew N. Yurick Ii

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-3598
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KEITH E. JOHNSON,
Appellant,
v.
ANDREW N. YURICK II; GLOUCESTER COUNTY BOARD
OF CHOSEN FREEHOLDERS; JAMES B. CANNON;
GLOUCESTER COUNTY PROSECUTOR’S OFFICE;
COUNTY OF GLOUCESTER.
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On Appeal from the United States District Court
for the District of New Jersey
D. C. Civil No. 99-cv-03864
District Judge: Hon. Joseph E. Irenas
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Argued: April 8, 2002
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Before: McKEE and BARRY Circuit Judges, and
ALARCON, Senior Circuit Judge
(Opinion Filed: June 26, 2002)
Harold B. Shapiro, Esq. (argued)
1063 East Landis Avenue
P.O. Box 787
Vineland, NJ 08362
Counsel for Appellant
Jacqueline A. DeGregorio, Esq. (argued)
Francis J. Vernoia, Esq.
Weiner Lesniak
629 Parsippany Road
Parsippany, NJ 07054
Counsel for Appellees Andrew Yurick II and Gloucester County Prosecutor’s Office
Michael Parlavecchio (argued)
Genova Burns & Vernoia
Eisenhower Plaza II Suite 2575
354 Eisenhower Parkway
Livingston, NJ 07039
Counsel for Appellees County of Gloucester, Gloucester County Board of Chosen
Freeholders and James B. Cannon
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OPINION OF THE COURT
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McKEE, Circuit Judge.
Keith Johnson appeals the district court’s grant of summary judgment in favor of
all of the defendants as to Johnson’s free speech claims under the United States and New
Jersey Constitutions. The district court had jurisdiction pursuant to 28 U.S.C. 1331.
We have jurisdiction under 28 U.S.C. 1291. For the reasons that follow, we will
affirm. Since we write only for the district court and the parties who are familiar
with the circumstances underlying the instant appeal, we need not recite the factual or
procedural background of this dispute except insofar as may be necessary to our brief
discussion. We will limit our discussion to whether the district court erred under
Pickering v. Board of Education, 391 U.S. 563 (1968), and its progeny, in concluding
that Yurick’s interest in an efficient workplace outweighed Johnson’s free speech rights.
In Pickering, the Supreme Court addressed the conflict between government as
employer and a public employee’s right to free speech. In resolving that tension, the
Court stated that, "the problem in any case is to arrive at a balance between the interests
of the [employee] as citizen, in commenting upon matters of public concern and the
interests of the state, as an employer, in promoting the efficiency of the public services it
performs through its employees." 391 U.S. at 568. "[S]peech concerning matters of
public concern occupies the ’highest rung of the hierarchy of First Amendment values,’
and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145 (1983) (citing
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 914 (1982); see also Carey v. Brown,
447 U.S. 455, 467 (1980)). We summarized the Pickering/Connick balancing test in
Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001), as follows:
First, the plaintiff must establish the activity in
question was protected. For this purpose, the speech
must involve a matter of public concern. Once this
threshold is met, plaintiff must demonstrate his interest
in the speech outweighs the state’s countervailing
interest as an employer in promoting the efficiency of
the public services it provides through its employees.
These determinations are questions of law for the
court.
Baldassare, 250 F.3d at 195 (internal citations and quotation marks omitted).
"A public employee’s speech involves a matter of public concern if it can ’be
fairly considered as relating to any matter of political, social, or other concern to the
community.’" Green v. Phila. Housing Authority, 105 F.3d 882, 885-86 (3d Cir. 1997)
(quoting Connick, 461 U.S. at 146). Courts determine whether a matter addresses a
public concern by considering the content, form and context of a given statement based
upon the record as a whole. Connick, 461 U.S. at 148.
Here, there is little doubt that Johnson’s statements to Judge Lisa touched upon a
matter of public concern. The discussion in the judge’s chambers concerned the court’s
backlog which presumably affected the speedy trial rights of criminal defendants, and
had implications for the operation of the judicial system as well as for how tax dollars
were being spent. Thus, the district court correctly concluded that Johnson’s discussion
with the judge satisfied the first prong of the Pickering/Connick inquiry. See Johnson,
156 F.Supp. at 434-435 ("Certainly when compared to other speech held to involve
matters of public concern . . . the nature of the comments here, and the context in which
they were discussed, strongly support a finding that they implicate public concern.").
We turn, then, to the second factor under Pickering: whether Johnson’s speech
interest outweighs the countervailing interest of Yurick and the County in promoting the
efficiency of the public services it provides through its employees. "Only if the value of
the speech, as measured by the employee’s and the public’s interests, is outweighed by
the government’s interest in effective and efficient provision of services, will we hold
that the speech is unprotected." Azzaro v. County of Allegheny, 110 F.3d 968, 980 (3d
Cir. 1997) (en banc).
As noted above, in order to determine if Johnson’s speech interest can be
subordinated to the interest of the employer, we must assess the context in which
Johnson made the statement. "[T]he manner, time, and place of the employee’s
expression are relevant, as is the context in which the dispute arose." Rankin v.

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McPherson, 483 U.S. 378, 388 (1987) (citing Connick, 461 U.S. at 152-153; Givhan v.
Western Line Consolidated School Dist., 439 U.S. 410, 415 n.4 (1979)). Moreover,
"[t]he public employer . . . bears the burden of justifying the discharge." Baldassare,
250 F.3d at 197 (internal quotations and citations omitted). However, this burden "varies
depending upon the nature of the employee’s expression." Id.
We must also be cognizant of the relationship between the plaintiff/employee, and
the defendant/employer, and the extent to which the employee’s responsibility to the
employer justified the challenged employment decision. Thus, "[w]hen close working
relationships are essential to fulfilling public responsibilities, a wide degree of deference
to the employer’s judgment is appropriate." Connick, 461 U.S. at 151-52. The public
employer’s interest in avoiding disruption is enhanced when the employee asserting the
right to speak serves in a "confidential, policymaking, or public contact role." Cf.
Rankin, 483 U.S. at 390-91. Accordingly, "the crucial variant in the balance appears to
[be] the hierarchical proximity of the criticizing employee to the person or body
criticized." Sprague v. Fitzpatrick, 546 F.2d 560, 564 (3d Cir. 1976).
On Johnson’s side of the balance, he contends that he acted squarely within the
scope of his duties in having a private meeting with Judge Lisa in his chambers about the
backlog of cases which had accumulated on the pretrial and trial lists. Johnson also
claims he was under instructions from Yurick to take the steps necessary to resolve the
backlog problem. This, he argues, fits within the content and form of speech protected
under the First Amendment. Cf. Connick, 461 U.S. at 146-147. On the other hand,
Appellees contend that the evidence on the record at summary judgment demonstrates
that Johnson’s actions breached a relationship of trust between Yurick and his deputy,
Johnson, and consequently undermined their working relationship so substantially that
Yurick was justified in firing him.
Although it is clear that these facts demonstrate that Johnson spoke to Judge Lisa
on a matter of public concern, we note that in so doing, he was not acting as a private
citizen, as Johnson himself admits, but in his role as First Assistant Prosecutor and a
government employee. In this role, Johnson acted as Yurick’s deputy. Johnson was
obligated to follow and implement the policy directives set by Yurick. Yurick had to
trust Johnson to carry out his instructions and implement his directives. Johnson served
Yurick in "a confidential and policymaking role." Rankin, 483 U.S. at 390-91.
The record shows that Yurick instructed all of his staff that they would maintain
the plea bargaining policy. Nonetheless, Johnson spoke to Judge Lisa and had a
conversation which was critical of the plea bargaining policy and resulted in the drafting
of a proposal that would modify the policy in a way that would conflict with Yurick’s
public position concerning the policy. Johnson did so without informing Yurick or
asking Yurick’s permission beforehand. He informed Yurick a week after the fact.
Johnson acted in a way that directly conflicted with his role as Yurick’s deputy
and subverted the relationship of trust and confidence between Johnson and Yurick.
Rankin, 483 U.S. at 378. We believe that this disruption substantially undermined the
relationship between Johnson and Yurick. Thus, Yurick’s interest as the state employer
in avoiding such interference clearly outweighs Johnson’s free speech interests. See id.
("Interference with work, personnel relationships, or the speaker’s job performance can
detract from the public employer’s function; avoiding such interference can be a strong
state interest.").
Sprague informs and controls our decision here. There, the District Attorney for
Philadelphia made certain public statements about an ongoing case. The next day, the
First Assistant District Attorney made statements in a newspaper interview disputing the
truthfulness of the District Attorney’s statements. The District Attorney fired the First
Assistant for these statements. The district court granted summary judgment in favor of
the District Attorney. On appeal, this court affirmed. The First Assistant, who was
characterized as the District Attorney’s alter ego and his chief policy deputy, had a close,
confidential working relationship with the District Attorney. Sprague, 546 F.2d at 565.
We reasoned that the "disruptive impact" of his statement was clearly shown since the
First Assistant had declared in public that his superior had not told the truth. We found
that this action had so seriously undermined the employer/employee relationship that the
balance weighed against First Amendment protection. Id.
Johnson and Yurick had a relationship of trust and confidence exactly like that
between the District Attorney and his First Assistant in Sprague. Additionally, Judge

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Lisa had publicly criticized Yurick’s plea bargaining policy, Yurick and Lisa had
publicly sparred over the policy, and Yurick had instructed his staff that they would stick
to the policy. Nonetheless, Johnson approached Lisa, Yurick’s chief critic on this issue,
without Yurick’s knowledge or permission. Johnson confided his criticisms about the
plea bargaining policy to Judge Lisa. Therefore, notwithstanding the fact that the
purported goal of the conversation was to fix the backlog problem, this unauthorized
conversation nonetheless had a disruptive impact which undermined the working
relationship between Johnson and Yurick.
We believe this to be correct in spite of the fact that the conversation between
Johnson and Judge Lisa took place in private and the criticism by the First Assistant
District Attorney in Sprague was public. Johnson shared his own criticisms with
Yurick’s chief critic and subverted Yurick’s instructions that the Prosecutor’s Office
would maintain the policy by proposing a modified policy without Yurick’s permission.
The apparent hope of Johnson’s private communication with Judge Lisa was a public
change in the plea bargaining policy which would have controverted Yurick’s
determination of the issue. This act created "an irreparable breach of confidence
between the two men." Sprague, 546 F.2d at 565. Such an act would be tantamount to
defecting to the opposition, and would understandably undermine the confidence Yurick
had in Johnson. Under these circumstances, we believe Johnson’s comments to Judge
Lisa constituted a "form of public criticism of the superior by the subordinate [which]
would seriously undermine the effectiveness of the working relationship between them."
Pickering, 391 U.S. at 569-70.
The district court reached this conclusion by noting that "[t]he fact remains that
Yurick was furious at what he perceived to be Plaintiff’s meeting with Judge Lisa behind
his back and without discussing it with him first." Johnson, 156 F.Supp.2d at 435. It
was Yurick’s resulting loss of confidence in Johnson to which the district court
ultimately points as the factor tipping the balance in favor of the State’s interests as
employer. Id. ("Yurick’s loss of confidence in Plaintiff and sense of betrayal
understandably undermined their close working relationship.") We believe the district
court was correct in its analysis.
In circumstances such as those presented here, senior governmental officials have
an interest in not tolerating such dissent among their top advisers. See Moran v. State of
Washington, 147 F.3d 839, 850 (9th Cir. 1998) ("Indeed we are most doubtful that the
Constitution ever protects the right of a public employee in a policymaking position to
criticize her employer’s policies or programs simply because she does not share her
employer’s legislative or administrative vision."). This is because "[h]igh-level officials
must be permitted to accomplish their organizational objectives through key deputies
who are loyal, cooperative, willing to carry out their superiors’ policies, and perceived by
the public as sharing their superiors’ aims." Hall v. Ford, 856 F.2d 255, 263 (D.C. Cir.
1988).
Given these considerations, Yurick’s interest in maintaining the effectiveness of
the Prosecutor’s office by disciplining insubordinate employees outweighs Johnson’s
interest in commenting upon matters of public concern. Accordingly, we will affirm the
decision of the district court.
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TO THE CLERK:
Please file the preceding not precedential opinion.
/s/Theodore A. McKee_______
Circuit Judge

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