Joseph J. Freebery v. Christopher A. Coons

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-4771
JOSEPH J. FREEBERY
Appellant
v.
CHRISTOPHER A. COONS, in his official capacity
as County Executive of New Castle County and in his
individual capacity; NEW CASTLE COUNTY, a
municipal corporation; JOHN AND JANE DOES 1-25
On Appeal From the United States
District Court
For the District of Delaware
(D.C. Civil Action No. 1-05-cv-00748)
District Judge: Honorable Paul S. Diamond
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 2, 2009
BEFORE: FISHER, HARDIMAN and STAPLETON,
Circuit Judges
(Opinion Filed: December 10, 2009)

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Among other protections, the New Castle County merit system provides that1
classified employees will only be terminated for “delinquency, misconduct, inefficiency
or inability to perform the work of the position satisfactorily.” New Castle County Code
§ 26.03.907. Classified employees are also entitled to written notices of the reasons for
terminations, pretermination hearings, and appellate procedures. Id.
2
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Joseph J. Freebery filed this civil action against New Castle County, the
County Executive of New Castle County, and Jane and John Does 1-25, alleging, among
other claims, violations of the First and Fourteenth Amendments and state law claims of
breach of contract and breach of the duty of good faith and fair dealing. Freebery appeals
the order of the District Court granting summary judgment in favor of defendants.
Because we write only for the benefit of the parties, we assume familiarity with the
facts of this civil action and the proceedings in the District Court. We will affirm
essentially for the reasons stated by the District Court.
I.
In 1984, Freebery began working for defendant New Castle County as its
Superintendent of Parks. This position was a classified position within the New Castle
County merit system. In 1996, Thomas Gordon was elected County Executive of New1

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Castle County. He appointed Freebery’s sister, Sherry Freebery, to serve as New Castle
County’s Chief Administrative Officer. At that time, county departments were managed
by Directors who were appointed by the County Executive. Pursuant to state law,
Directors served at the pleasure of the County Executive and, thus, those positions were
unclassified and unprotected by the New Castle County merit system.
After taking office, Gordon and his Chief Administrative Officer began to
restructure county government. As part of their reorganization plan, they reduced the
number of county departments and created a General Manager position to head each
department. Gordon and Freebery also sought to classify the newly created General
Manager position as a position within the New Castle County merit system. A change in
state law was required to implement this reorganization. Gordon and Freebery lobbied
the Delaware legislature and the state code was amended to include these changes in
1997. Appellant Freebery was promoted to General Manager of the Department of
Special Services that year. He claims that he accepted the position in reliance on
Gordon’s and Sherry Freebery’s promises that the position would always retain the
protections of the merit system.
In 2003, Christopher Coons – who was at that time President of the New Castle
County Council – lobbied the Delaware legislature for a bill that would allow the County
Executive to appoint General Managers that served at his pleasure, and, thereby change
the General Manager to a position that was not protected by the merit system. Appellant

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Freebery opposed the bill and lobbied against it. The bill passed the Delaware House of
Representatives but was not voted on in the Senate and, thus, was not enacted.
After the bill failed in 2003, Gordon wrote a memorandum to each General
Manager. The memorandum explained that the General Manager positions were
protected by the merit-system, and, therefore, the General Managers could not be
terminated except for “just cause or non-performance.” [A 467-68] The memorandum,
however, acknowledged that “someone could change state law” and thereby remove the
protections. [A 467]
In 2004, Coons and Sherry Freebery opposed each other in the Democratic primary
for the County Executive. Appellant Freebery supported his sister in the election. Coons
defeated Sherry Freebery in the primary and won the general election. Shortly after
taking office, County Executive Coons again lobbied the Delaware legislature to remove
the General Manager position from merit system classification. This time, the bill passed
both houses and became effective in February of 2005.
Coons and his staff then conducted a review of the county government. On April
6, 2005, Freebery was offered the choice of whether to retire, resign, or be terminated and
chose termination. Freebery subsequently filed this civil action.
II.
The District Court granted summary judgment on Freebery’s Fourteenth
Amendment due process claim, finding that Freebery had no protected interest in his job

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when he was terminated. In evaluating Freebery’s due process claim, we first determine
“whether the asserted individual interests are encompassed within the fourteenth
amendment’s protection of ‘life, liberty, and property.’” Dee v. Borough of Dunmore,
549 F.3d 225, 229 (3d Cir. 2008) (quoting Robb v. City of Phila., 733 F.2d 286, 292 (3d
Cir. 1984)). If we conclude that such an interest is at stake, we then “decide what
procedures constitute ‘due process of law.’” Id. (quoting Robb, 733 F.2d at 292).
To have a property interest in public employment, an employee must have a
“legitimate entitlement to . . . continued employment.” Elmore v. Cleary, 399 F.3d 279,
282 (3d Cir. 2005). State law determines whether a public employee has a property
interest in public employment. See Bishop v. Wood, 426 U.S. 341, 344 (1976). The
District Court correctly concluded that Freebery did not have a protected interest in his
position as General Manager pursuant to Delaware law because, as of February 9, 2005,
he served at the pleasure of the County Executive. See Del. Code Ann. tit. 9, § 1120.
After his position was removed from the protections of the merit system, Freebery no
longer had an entitlement to continued employment with New Castle County. See
Elmore, 549 F.3d at 282 (“[O]nce a court determines that a public employee held his
position at the will and pleasure of the [government entity], such a finding necessarily
establishes that [the employee] had no property interest in the job sufficient to trigger due
process concerns.” (internal quotations and citations omitted)). Accordingly, no process
was due to him before he was terminated.

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Next, Freebery argued that he had a protected property interest in public
employment because he had an employment contract with New Castle County. He claims
that Gordon and Sherry Freebery promised the candidates for the General Manager
positions that they would always be protected by the merit system, regardless of whether
Delaware law changed the classification of the General Manager position. Assuming,
arguendo, that such a contract existed, the District Court correctly held that such a
contract was ultra vires. Under Delaware law, New Castle County “deriv[es] . . . its
authority to govern directly from the State.” See State ex rel. Wier v. Peterson, 369 A.2d
1076, 1079 (Del. 1976). The County must exercise its authority in accordance with Title
9 of the Delaware Code. See Del. Code Ann. tit. 9, § 1103. In Title 9, the Delaware
legislature has enacted laws that determine the procedures for appointing department
heads and whether the department heads serve at the pleasure of the County Executive.
See Del. Code Ann. tit. 9, § 1120. New Castle County, through Gordon and his Chief
Administrative Officer, had no authority to promise Freebery a position as a department
head with merit system protections regardless of changes in state law. As the District
Court correctly observed:
According to their own memorandum, Mr. Gordon and Ms. Freebery
intended to create an employment contract that would immunize Plaintiff
and the other GMs from changes in state law. (Doc. No. 183 Ex. 7.) That
effort was certainly outside their authority. Accordingly, the contract based
on the employment promises of Mr. Gordon and Ms. Freebery is ultra vires
and unenforceable.
[A 11] Thus, Freebery did not have a property interest in continued employment through

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an alleged contract with the County. Freebery’s state law claim of breach of contract fails
for the same reasons.
The District Court also correctly held that Gordon lacked authority to bind his
successors through contracts concerning governmental, as opposed to business or
proprietary, matters. 10A McQuillin, The Law of Municipal Corporations § 29:101 (3d
ed.). As the Court explained, “contracts that directly implicate the nature of government
– such as the employment contracts of an executive officer’s ‘cabinet’ . . . certainly
relate[] to ‘governmental matters’ [and] [p]rohibiting ‘governmental contracts’ that
extend beyond the term of the contracting official is . . . vital to preserving a republican
form of government.” [A 14]
Neither were Freebery’s rights to freedom of association violated when he was
terminated. He claims he was terminated for supporting his sister, Sherry Freebery, in the
primary campaign. To make out a prima facie case of political patronage discrimination,
a plaintiff must show that “1) [he] was employed at a public agency in a position that does
not require political affiliation, 2) [he] was engaged in constitutionally protected conduct,
and 3) this conduct was a substantial or motivating fact in the government’s employment
decision.” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007).
Freebery failed to make out the first element of his First Amendment claim because he
was unable to show that, as General Manager of the Special Services Department, he
worked in a position that did not require political affiliation. See Galli, 490 F.3d at 271;

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see also Brown v. Trench, 787 F.2d 167, 169-70 (3d Cir. 1986) (describing factors to
consider when determining whether a position requires political affiliation); Del. Code
Ann. tit. 9, § 1341 (enumerating duties of General Manager of the Special Services
Department). Freebery, however, contends that the policymaking exception was
inapplicable because he was protected from termination by the alleged employment
contract and state law. The contract and the merit system protections, however, do not
alter the test used to determine whether Freebery’s First Amendment rights were violated.
And, in any case, Freebery did not have a valid tenure contract with New Castle County
and his position was no longer protected by the merit system when he was terminated.
Accordingly, Coons and New Castle did not violate Freebery’s right to freedom of
association by terminating him.
Freebery also complains that the District Court erred in granting summary
judgment on his claim that his right of familial association with his sister was violated by
his termination. Freebery contends that the District Court erred by requiring him to
produce evidence establishing that his employer’s actions interfered with this familial
relationship pursuant to Lyng v. Int’l Union, United Auto. Aerospace & Agric. Implement
Workers of Am., 485 U.S. 360, 365-66 (1988). Assuming without deciding that the
District Court erred in applying this standard, it is clear that summary judgment was
properly granted on this claim. Freebery did not produce evidence demonstrating that his
familial associations were a “substantial factor” in his termination. See Gorum v.

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Sessions, 561 F.3d 179, 184 (3d Cir. 2009). Moreover, Freebery’s familial association
claim in Count III is duplicative of his First Amendment retaliation claim in Count II.
The facts pled in support of his familial association claim relate only to Freebery’s
activities in support of his sister’s political career, and the fact Freebery supported a
political candidate who happened to be his sister does not transform a political retaliation
claim into a familial association retaliation claim. As discussed above, defendants did not
violate the Constitution by terminating Freebery even if that termination resulted from his
political support for his sister because the policymaker exception applied to his position
as a department manager.
Finally, Freebery claims that Coons and his Chief Administrative Officer breached
the implied covenant of good faith and fair dealing by falsifying or manipulating his
employment record to create grounds to terminate him. The Delaware Supreme Court has
applied the covenant of good faith and fair dealing to at-will employment contracts, such
as the one Freebery held after the general manager position was no longer protected by
the merit system. See E.I. DuPont De Nemours & Co. v. Pressman, 679 A.2d 436, 441
(Del. 1996). The covenant “limits at-will employment in only very narrowly defined
categories” because “a broad application” of the covenant could “effectively end at-will
employment.” Id. at 441-42. An employer, however, may breach the covenant by
falsifying the employee’s record “to create fictitious grounds to terminate employment.”
Id. at 443-44. The District Court correctly concluded that Freebery failed to present

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evidence tending to show that Coons or his Chief Administrative Officer falsified or
manipulated Freebery’s employment record to create grounds to terminate him. Instead,
the record shows that Freebery’s employers were dissatisfied with his management style
and became convinced that he did not fit well within the Coons administration. Although
Freebery may disagree with these assessments, this disagreement does not establish a
breach of the covenant of good faith and fair dealing. Accordingly, summary judgment
was properly granted on this claim.
III.
The judgment of the District Court will be affirmed.

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