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Angela M. Zimmerlink v. Fayette County

November 29, 2012


The opinion of the court was delivered by: Magistrate Judge Cynthia Reed Eddy



Pending before this Court is Defendant's Motion for Summary Judgment [ECF No. 56] of Plaintiff's First Amendment retaliation and Fourteenth Amendment Equal Protection claims against Defendant Commissioners and against Fayette County under 42 U.S.C. § 1983. The Motion is fully briefed and is ripe for disposition. For the reasons set forth below, Defendants' Motion for Summary Judgment is granted.


a.Statement of Relevant and Material Facts

As an enumerated county under the Pennsylvania County Code, 16 Pa.C.S.A. § 101, et seq., Fayette County's corporate power is vested in a three member Board of Commissioners. 16 Pa.C.S.A. § 201-203. The Board "may adopt resolutions and ordinances prescribing the manner in which the powers of the county shall be carried out and generally regulating the affairs of the county." 16 Pa.C.S.A. § 509(a).

Plaintiff, Angela Zimmerlink, is one of three elected County Commissioners of the Board of Commissioners ("Board") for Fayette County, Pennsylvania. Am. Compl. [ECF No. 20] ¶¶ 1, 3, 4. Plaintiff claims that she is the sole Republican and the minority voice of the Board. Id. at ¶¶ 1, 11. Defendants, Vincent Zapotosky and Vincent Vicites, at all relevant times to this case, are the other two Commissioners of the Board. Id. at ¶ 3-4. Plaintiff alleges that Defendants, both being Democrats, are the majority voice of the Board. Id. Plaintiff alleges that she "has been a persistent and outspoken critic of the Defendant Commissioners' policies" including "budgetary and fiscal matters, human resource issues, zoning practices, . . . County contract awards[,]" and "the practice of Defendant Commissioners systematically operating behind closed doors, in violation of both the County Code and the Pennsylvania Sunshine Act. . . ."*fn1 Id. at ¶ 14-15. Due to her outspoken dissent of Defendant Commissioners' practices, Plaintiff claims that her First and Fourteenth Amendment rights were violated because Defendant Commissioners excluded Plaintiff and kept her from fulfilling her duties as a County Commissioner. *fn2 Id. at ¶ 21.

The following are instances in which Plaintiff claims that Defendant Commissioners violated her constitutional rights.

i. Delta Consulting Corporation Contract

Delta Consulting Corporation ("Delta") is a consulting firm that seeks funding for local municipalities from state and federal governments. Pl.'s Opp'n Br. [ECF No. 60] at 6. Fayette County passed a resolution contracting with Delta in exchange for its services. Id. Plaintiff alleges that she opposed the resolution. Id. In March, 2009, Plaintiff alleges that Defendant Commissioners entered into negotiations with Delta to amend its contract with the County and excluded Plaintiff from participating in these negotiations. Id. at 5. Specifically, Plaintiff points to emails exchanged between the Defendant Commissioners and Delta regarding a proposal for continuing services with Delta. Id. When she confronted Defendant Commissioners and inquired about whether they had entered into negotiations with Delta, Defendant Commissioners denied being involved in any negotiations with Delta. Id. She also claims that the Defendant Commissioners failed to initially send her the draft amendment, and when she asked about the existence and/or status of such an agreement, Defendant Commissioners did not disclose the extent to which they were involved in negotiations with Delta nor did they mention any proposed amendment. Id. After failing to include her in negotiations and not disclosing the existence of a draft contract with Delta, Defendant Commissioners continued to exchange emails between each other regarding the proposal while denying its existence to Plaintiff. Id. at 5-6. Subsequently, the Board passed a resolution regarding the Delta contract that Plaintiff alleges "mirrored the terms Defendants had negotiated with Delta." Id. at 6 (citing Ex. 2 Mins. of 10/22/2009 Board Meeting [ECF No. 60-2] at 67-68). Contrary to the emails produced in discovery, both Defendant Commissioners denied working together to reach a deal about the Delta contract at their depositions.*fn3 Id. at 8-9. Defendants contend that Plaintiff was subsequently provided a copy of the proposed contract on October 2, 2009, three weeks before the Board voted to approve the contract. Defs.' Resp. to Pl.'s Statement of Material Facts [ECF No. 67] at ¶ 342.

ii. Felice Associates Contract Extension

At all relevant times, Felice Associates ("Felice") acted as a consultant and arbiter to Fayette County for human relations related services. Pl.'s Op. Br. at 9. Plaintiff alleges that she was not in favor of Felice's retention to provide such services. Id. In early 2009, the Felice contract expired, and Plaintiff wanted to interview new candidates to provide human relation services to the County instead of renewing the Felice contract and sent Defendant Commissioners a letter expressing the same. Id. (citing 3/5/2009 Letter of Zimmerlink [ECF No. 60-2] at 35). Plaintiff claims Defendant Commissioners negotiated with Felice to her exclusion regarding a contract extension. Id. During these negotiations, Felice emailed an extension agreement to Defendant Vicites' assistant. Id. (citing 3/6/2009 Letter of Felice [ECF No. 60-2] at 37). Plaintiff alleges that she did not receive a copy of the extension agreement from the Commissioners,*fn4 and when she inquired about the status of the contract, neither Commissioner responded to her. Id. at 9-10. Plaintiff alleges that after "totally exclud[ing]" Plaintiff "from participating in negotiations[,]" Defendants extended the Felice contract and subsequently ratified the contract at the commissioner meeting. Id. Plaintiff voted against ratification. Id. at 10.

iii. 2010 County Budget

In September 2009, the Board was seeking measures to remedy the County's fiscal plight to implement in the 2010 County budget. Id. Plaintiff alleges that in the event severe budget cuts were necessary, she supported a plan that "only those county offices [with] particular fiscal difficulty" would be affected by the cuts. Id. (quoting Ex. 1 Aff. of Pl. [ECF No. 60-1] at ΒΆ 15). In contrast, Plaintiff alleges that Defendant Commissioners advocated for a county-wide "reduction in hours versus layoffs" to relieve the budget crisis. Id. (citing Ex. 2 9/2/09 Letter to Fayette County Employees from Def. Commissioners [ECF No. 60-2] at 41). Because of the Board's polarized positions on the budget, Plaintiff alleges that Defendant Commissioners held budget meetings and discussed the 2010 budget to her exclusion. Id. at 11. Plaintiff specifically alleges that although dates and times were scheduled and advertised to conduct budget meetings, the Defendant Commissioners were not present on the dates or in the places scheduled to hold the meetings. Id. at 12 ...

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