Transcript ANATOMY OF A NEW HAMPSHIRE CASE” Political Official and

CHARLES P. BAUER
214 N. Main Street
P.O. Box 1415
Concord, NH 03302-1415
Ph: (603) 228-1181
Direct: (603) 545-3651
Fax: (603) 224-7588
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[email protected]
“When Bill Foote lost his fourth bid for
the school board last week, he never
imagined his election defeat could cost
him his position as chairman of the
town parks and recreation commission.
But citing everything from his attitude
about the school board to his opinion
about the Bedford Village Common, the
town council last night pulled Foote’s
name from the slate of appointees to
the commission.”
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 April 2009 - Foote’s sues Town of
Bedford & 4 individual council members.
 4 sets of attorneys involved – town
attorney; Foote’s attorney; LGC attorney
for town; and LGC attorney for 4
individual council members.
 Suit weaves through 4 court systems –
Hillsborough Superior; US Federal Court in
Concord; US Federal Court of Appeals in
Boston; back to Hillsborough County
Superior Court.
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August 2010 - Town and
Council Members are successful
in Federal Court.
NH Federal Court - Judge Paul
Barbadoro.
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September 2010 - Foote
appeals to 1st Circuit Court of
Appeals in Boston.
1st Cir. Court - Justice David
Souter; Circuit Judge Bowdin, &
Circuit Judge Selya.
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April 2011 - Town and Council
Members are successful at 1st
Cir. In Boston.
May 2011 - Foote tries to
continue lawsuit back in state
court - unsuccessfully.
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 2 years of litigation - lawsuit filed in April
2009 and concluded in May 2011.
 $125,000.00 - estimated cost of
attorney’s fees and expenses for litigation.
 Plus, town administrative time, labor &
costs for litigation.
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 Town’s refusal to reappoint volunteer to “policymaking commission” due to his public opposition
to, & criticism of, municipal policies does not
violate 1St Amendment rights.
 Gov’t can terminate a “policy-making employee” or
“volunteer” based on party affiliation to ensure
that elected officials will not be hamstrung in
carrying out the voter’s mandate.
 Elected officials are allowed to accomplish their
policy objectives thru “loyal and cooperative policymaking employees & volunteers.”
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 The government’s interest in ensuring that its
policy-makers “sing from the same sheet
music” applies equally to policy-makers who
are hired hands & policy-makers who are
unpaid advisors.
 Employee or volunteer who “advises” ultimate
decision-makers qualifies as a policy maker.
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 Person need not possess the ultimate
decision-making authority to qualify as a
policy maker – advisors can be policy makers.
1st Amendment does not require
appointing authority to surround
itself with policy makers who
represent divergent viewpoints.
Gov’t officials enjoy wide-latitude in
managing their offices, without
intrusive oversight by the judiciary,
in the name of the 1st Amendment.
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 In this case, while Foote was within his right
to criticize the Town on its policies, the Town
was within its right not to reappoint a foe of
their policies to service on a board whose
function was to give the Town policy-making
advice.
 A policy-influencing position was established
in this case. However, if the employee or
volunteer did not have policy-influencing
authority, the result would have been
different.
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