“ANATOMY OF A NEW HAMPSHIRE CASE” Political Official and First Amendment Speech Foote v. Town of Bedford (2011) Nove

1. “ANATOMY OF A NEW HAMPSHIRE CASE”Political Official and First Amendment SpeechFoote v. Town of Bedford (2011)November 17, 2011 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 bauer@gcglaw.com

2. Headline in Union Leader “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.”

3. “Start Your Engines!” • 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.

4. NH Federal Court • August 2010 - Town and Council Members are successful in Federal Court. • NH Federal Court - Judge Paul Barbadoro.

5. 1st Circuit Court of Appeals • September 2010 - Foote appeals to 1st Circuit Court of Appeals in Boston. • 1st Cir. Court - Justice David Souter; Circuit Judge Bowdin, & Circuit Judge Selya.

6. 2 Years of Litigation • 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.

7. $125,000.00 For Victory • 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.

8. Lessons from Foote v. Bedford • Town’s refusal to reappoint volunteer to “policy-making 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 policy-making employees & volunteers.”

9. More Lessons . . . • 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. • Person need not possess the ultimate decision-making authority to qualify as a policy maker – advisors can be policy makers.

10. More Lessons . . . • 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.

11. Different Outcome For Town? • 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.