The following summary is based on an opinion of the U.S. District Court for the District of New Hampshire. Federal district court cases apply federal law and sometimes New Hampshire law. Their interpretations of New Hampshire law are not binding on the New Hampshire Supreme Court.
Foote served on the Bedford Parks and Recreation Commission, which the Town's charter made responsible for recommendations to the town council as to facilities, programs and personnel. He ran unsuccessfully for the school board, criticizing the board during the campaign. Foote was also outspoken in criticism of the council for its refusal to use recreation impact fees for a project to develop the town common with recreation facilities, including a bandstand and skating pond. He was not reappointed by the council to the commission.
Foote sued the Town and several councilors in the U.S. District Court for civil rights violations under 42 U.S.C. sec. 1983, claiming a violation of his freedom of speech protected by the First Amendment to the U.S. Constitution. He alleged that the defendants had retaliated for his constitutionally protected criticism of the school board and town council by not reappointing him to the commission.
It is well-established that public employees have constitutionally protected rights to speak out as citizens on matters of public concern, subject only to restrictions that are necessary for their employers to operate efficiently and effectively. To determine whether a restriction on speech is permissible, the interests of the employee and the employer must be balanced against one another. Garcetti v. Ceballos, 547 U.S. 410 (2006); Pickering v. Bd. of Educ., 391 U.S. 563 (1968). [Under RSA Chapter 98-E public employees in New Hampshire have additional protection for public discussion of governmental policies.]
In this case, the defendants argued that there is no constitutional protection for a volunteer's position and no protected right to reappointment. Alternatively, the defendants claimed that the Town's interest in efficient and effective service outweighed Foote's interest in commenting on municipal governmental issues. The defendants moved for summary judgment.
Some federal courts have held that volunteers are protected from termination and non-reappointment in the same way as public employees who are terminated for speaking out on matters of public concern. The Court, however, declined to reach these issues. Instead, the Court applied the balancing test for public employees' freedom of speech. The Court first stated that the members of the elected town council "have good reason to take account of a speaker's views on local governance issues when they are considering appointments to town boards." Next, the Court noted that Foote's claim would be stronger had he been a "whistleblower" who was uncovering wrongdoing. Finally, the Court held that "[g]iven the Recreation Commission's role in formulating town policy, the Town Council was entitled to seek out new members for the Commission whose views about town government are aligned with its own." The Court granted summary judgment dismissing Foote's civil rights claims.