cover her position, regardless of union membership. We therefore make no finding as to Connor's membership in AFSCME.
Connor also contends that the parties' conduct indicates that they believed that the Collective Bargaining Agreement applied to her, and that therefore the "just cause" provision should apply. We disagree: the contract either applies or it does not, and in this instance it does not. Connor agreed when hired that changes in the at-will status of her employment were required to be in writing, and may not be implied by the mistaken application of a Collective Bargaining Agreement to which she is not subject.
Finally, Connor in her brief contended that certain factual allegations of the complaint must be deemed admitted because they were not specifically denied in the answer. However, plaintiff's counsel, much to his credit, after reading defendants' reply brief, recognized the error of this contention, and has withdrawn the argument.
IV. DUE PROCESS CLAIMS
Defendants move for summary judgment with respect to Connor's due process claims, Counts V-VIII of the complaint, based on the fact that the record does not support a finding that Connor had a property interest in continued employment.
A plaintiff must have a constitutionally protected property interest to support a claim of either procedural or substantive due process. Midnight Sessions Ltd. v. City of Philadelphia, 945 F.2d 667, 678 (3d Cir. 1991), reh'g denied, cert. denied, 503 U.S. 984, 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992). A property interest exists only when there is a legitimate claim of entitlement to the subject of the alleged deprivation. Shoemaker v. City of Lock Haven, 906 F. Supp. 230, 233 (M.D. Pa. 1995). Since municipal employees in Pennsylvania generally are at-will employees, such a plaintiff must demonstrate an enforceable expectation of continued employment or some form of guarantee of continued employment extended by the municipality/employer. Id.
As the above discussion shows, Connor had no claim of entitlement based on the Collective Bargaining Agreement. No other source of a legitimate expectation of continued employment appears on this record, and so Connor had no property interest. Defendants are entitled to summary judgment as to Counts V-VIII.
V. FREE SPEECH
In Counts I and II of the complaint, Connor alleges that defendants violated her right to free speech under the First Amendment to the Constitution of the United States and under Article I, § 7 of the Pennsylvania Constitution.
Defendants note initially that there is a question of whether there has been any "speech" because Connor kept her log secret and did not communicate its contents to anyone. For present purposes, we think that, once Duran found the log and read it, there was communication, albeit not necessarily voluntary. Since the discharge took place after Duran read the log, it can be said that the discharge resulted from the communication. The form of the communication, however, is relevant to the analysis of whether the speech is a matter of public concern, an issue we address below. (There also may be a question of invasion of privacy when one's confidential writings are taken and examined which, since no such claim is before us, we do not address. But see Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 59 (2d Cir. 1987)(no claim for deprivation of constitutional right to privacy in retention and disclosure of portions of a fireman's personal diary)).
Not addressed by the parties is the question of analysis under the Pennsylvania Constitution, which is said to provide greater protection to the exercise of free speech than the federal Constitution, at least as to prior restraints on speech. Franklin Chalfont Assoc's v. Kalikow, 392 Pa. Super. 452, 573 A.2d 550, 556 (1990)(citing Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981)). In other contexts, the analysis is the same. See, e.g., Commonwealth by Preate v. Cancer Fund of America, Inc., 153 Pa. Commw. 124, 620 A.2d 647, 649-651 (1993) (reviewing claim under both constitutions that statutes were content-based regulation of free speech, applying U.S. Supreme Court standards).
In the context of speech by public employees, there does not appear to be a distinction, as the state courts have either applied the federal standard or ruled using the general term "free speech" without designating the source. See, e.g., Sacks v. Commonwealth, Dept. of Public Welfare, 502 Pa. 201, 465 A.2d 981 (1983); McCain v. Commonwealth, Dept. of Education, East Stroudsburg State College, 71 Pa. Commw. 165, 454 A.2d 667 (1983); Bovino v. Board of School Directors of Indiana Area School District, 32 Pa. Commw. 105, 377 A.2d 1284 (1977). We conclude that the same standard of review applies under either constitutional provision.
The Court of Appeals for the Third Circuit recently reviewed the standards applicable to the termination of employment of public employees alleged to have been in retaliation for the exercise of First Amendment rights. Azzaro v. County of Allegheny, 110 F.3d 968, 1997 U.S. App. LEXIS 6924, No. 95-3252, slip op. at 12-22 (3d Cir. filed April 11, 1997). The first question is whether the speech at issue is protected by the First Amendment, a question of law for the court to decide. Id. at 973 (citing Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995)). If so, we turn to the question of whether there is a genuine issue of material fact as to (1) whether the speech was a motivating factor in the decision to discharge and (2) whether the employee would have been discharged for other reasons absent the speech. Id.
In Azzaro, the Third Circuit first reviewed the holding of Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), in which a disgruntled assistant district attorney circulated a questionnaire among her peers. The questionnaire sought information about the trustworthiness of certain superiors, morale in the office, and pressure to participate in political campaigns. Azzaro at 13. Relying on Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court held that a public employee's speech is protected when it (1) addresses a matter of public concern and (2) outweighs the government's interest in the effective and efficient fulfillment of its responsibilities to the public. Azzaro at 14 (citing Connick at 147-148, 150). Whether speech addresses a matter of public concern is determined by the content, form, and context of a particular statement. Id.
Applying that standard, the Supreme Court found that most of the speech embodied in the questionnaire was unprotected. Specifically, the statements and questions relating to morale and trustworthiness of superiors were not protected because they represented only an effort to gather ammunition for another round of controversy with superiors. However, the speech relating to pressure to participate in political campaigns was protected as a matter of public concern. Azzaro at 14.
To clarify what is meant by "public concern" speech, the Third Circuit reviewed the rationale underlying the holding in Connick. The First Amendment is intended to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people, and so is the "essence of self-government." Azzaro at 14 (quoting Connick at 145, which in turn quoted Garrison v. Louisiana, 379 U.S. 64, 74-75, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964)). "It is the value of exchanges of information and ideas relevant to self-governance that entitles public concern speech to 'special protection.'" Azzaro at 15. When a public employee is silenced on such a matter, not only is society deprived of "information that may be vital to informed decision-making," the loss may be "particularly serious because public employees, by virtue of their constant interactions with a public office, are often in the best position to know what ails that office." Azzaro at 15, 16 (citations omitted).
Given this rationale, the question to be asked is
whether expression of the kind at issue is of value to the process of self-governance. This task does not, of course, involve the court's passing judgment on the merit of the view expressed or its source. Rather, the issue is whether it is important to the process of self-governance that communications on this topic, in this form and in this context, take place.
Azzaro at 16. That is, even statements which may be considered inappropriate or controversial must be protected in order to allow the "uninhibited, robust, and wide-open" exchange of ideas. Azzaro at 16-17 (quoting Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987)).
Other lessons to be derived from Connick include: public concern speech may take place in private exchanges between two individuals, since private dissemination of information can be as important as public speeches; the performance of governmental functions is inherently a matter of public concern; and motive, while relevant to an examination of the context of speech, is not determinative as to whether the speech addresses a matter of public concern. Azzaro at 17-18.
In Azzaro itself, the speech at issue was comprised of reports by an employee of the Allegheny County Department of Development that she had been sexually harassed by an executive assistant to a County Commissioner. The Third Circuit found this speech to be analogous to reports of racial discrimination, a topic characterized in Connick as inherently a matter of public concern. Azzaro at 17-18, 19.
Connor appears to concede that most of her notes found by Duran do not implicate matters of public concern. However, she points to one portion of her notes, which reads as follows:
11/15/95 - Douglas Mitchell did not go out on work furlough Tues. 10:30 a.m. 14, of Nov. Michael (DW) told me to make out a release on Monday that he spoke to Judge Williamson and he would be faxing us the papers for furlough. I did not make out the release because there was no papers in hand to release him. Upon me leaving, I told the Lt. about his W/R furlough if any thing comes down to get it. Michael ask why I didn't make one out rel. (He asked on Wed. 15, 1995). I told him no paper work. I also told him I would call Williamson & tell him I did not rel. him. No papers. Always told the top man is Duran no decisions or releases unless paperwork. Michael said to me the buck stops here and he pointed to him.