The mayor and other city officials in the fishing community of Gloucester, Massachusetts are protected under qualified immunity against claims by the city’s harbormaster that they violated his First Amendment rights.
The harbormaster sued the mayor, city solicitor, chief administrative officer and human resources officer for allegedly violating his free speech rights when they retaliated against him because of expert witness testimony he gave as a private consultant.
The First Circuit Court of Appeals said the officials are protected because as public officials they had reasonable concerns that the harbormaster’s testimony against a local boat captain would damage the city’s reputation and relations with the Gloucester fishing community.
The federal appeals court upheld the district court’s summary judgment in favor of the city officials on qualified immunity grounds.
The court said the answer to whether the officials are shielded from the claims requires balancing the value of an employee’s speech — both to himself and to the public — against the government employer’s legitimate interest in “preventing unnecessary disruptions and inefficiencies in carrying out its public service mission.”
The key question is whether it was clearly established at the time of the Gloucester officials’ alleged retaliation that the value of Harbormaster Thomas “T.J.” Ciarametaro’s speech “outweighed the municipality’s interest in the efficient provision of public services” by the harbormaster’s office.
The court concluded that it was not clearly established that Ciarametaro’s testimony outweighed the municipality’s interest and the city officials were reasonable in judging that it did not. Thus, they are entitled to qualified immunity for their actions.
The court noted that qualified immunity shields public officials from personal liability for “actions taken while performing discretionary functions” and the goal of qualified immunity is to “give government officials breathing room to make reasonable but mistaken judgments about open legal questions.” To achieve that goal, a court will grant qualified immunity unless it is “sufficiently clear that every reasonable official would have understood that what he was doing violated” the plaintiff’s rights.
As harbormaster, Ciarametaro regulates and maintains the Gloucester waterfront, enforcing local maritime ordinances, responding to boating emergencies, maintaining harbor facilities, and cooperating with state and federal maritime agencies. Ciarametaro also owns a private consulting firm that provides marine investigation and expert witness services.
Two local fishermen were suing a Gloucester fishing captain and the U.S. Coast Guard, alleging that both parties negligently sank the fishermen’s stranded vessel during a botched rescue attempt. The fishermen asked Ciarametaro to testify on their behalf as an expert witness in the case.
Gloucester officials may pursue outside employment that does not interfere with their public duties. Before accepting the offer, Ciarametaro contacted the city solicitor and the state ethics commission. He said both agreed there should be no problem with him testifying given neither Ciarametaro nor the harbormaster’s office had been involved in the accident.
Ciarametaro filed his expert report in June 2019. The report criticized the actions of both the rescuing Gloucester fishing captain and the Coast Guard. Ciarametaro wrote that “everything about the defendant-fishing captain’s tow of the plaintiffs’ vessel was improper from the start.” He also described the Coast Guard response as plagued by a “significant breakdown in communication . . . up and down the chain of command.” A trial on the case at which he was to testify was scheduled for July 2020.
In April 2020, the city’s chief administrative officer received a complaint from the Massachusetts Lobstermen’s Association that represents many local fishermen about Ciarametaro’s expected testimony on his findings. The administrative officer told Ciarametaro to drop the case because the testimony could be damaging to the city and he could lose his job. That advice was seconded by Mayor Sefatia Romeo Theken, who told him the case was a “big conflict” that could undermine the fishing community’s trust in the harbormaster’s office. Theken berated him in crude terms, threatened his job, demanded that he recuse himself, and warned that he was “losing the trust of the fishermen.”
The city solicitor told him that his involvement in the case “sends a clear message to the fishing community that if you stop and help a fellow fisherman you could be liable for negligence.”
The mayor received a letter from the lobstermen’s group stating that its members had a “lack of faith within the port of Gloucester.” The letter added that “commercial fishermen need a champion now more than ever, and not an anti-fisherman authority working against them.”
Despite the city officials’ concerns, and his prior indications that he would try to withdraw as a witness, Ciarametaro remained an expert witness in the case.
Ciarametaro alleges that they began a campaign of retaliation. He claims that the city officials created a hostile work environment by excluding him from important policymaking meetings and subjecting him to repeated verbal abuse. He claims that the mayor called him a “fraud” and suggested that her relatives should “break Ciarametaro’s kneecaps.” He also alleges that the city officials denied him work on overtime details and withheld a previously agreed-upon pay raise.
Ciarametaro further alleges that the city officials interfered with his management of the harbormaster’s office, including by harassing one of his clerks. Finally, Ciarametaro alleges that the mayor admitted to working with Gloucester’s human resources director to “fish for wrongdoing” in his personnel files.
Ciarametaro argues that there is no evidence that his testimony was disruptive to the harbormaster’s office or the city. But, the court noted, an employer need not “allow events to unfold to the extent that the destruction of working relationships is manifest before taking action.” Instead, the relevant question is whether the city officials were reasonably concerned that Ciarametaro’s expert testimony would disrupt relationships between commercial fishermen and the harbormaster’s office.
The appeals court agreed with the district court that the officials’ concerns were “certainly reasonable,” noting in part how the lobstermen’s association expressly told the mayor that the fishermen considered the harbormaster’s office to be “anti-fisherman.”
“Given that blunt language,” the city officials could reasonably predict that Ciarametaro’s testimony risked undermining his ability to “promote the city as a hospitable port of call.” Furthermore, the court noted, Ciarametaro himself was aware of this risk, having acknowledged in texts to the mayor that his testimony threatened the “public perception” of his department.
While the ruling clearly favors the city officials, the appeals court felt it necessary to qualify its meaning.
“To be clear, we need not (and therefore do not) decide whether the value of Ciarametaro’s speech outweighed” the city officials’ interests, the court explained. “We hold only that the city officials could have reasonably concluded that it did not. And even if the city officials’ reasoning was mistaken, it would not have been egregiously so. Accordingly, qualified immunity is available.”
Photo: Three fishing boats docked in the harbor in Gloucester, Massachusetts.
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