good morning may please the court and my name is bernard failon i am pleased to represent michelle elkhorn in this matter everyone in this room guards their good name and reputation and we also believe that we will not lose our livelihood without good cause and those are the reasons that the united states supreme court has said that a person has a liberty interest in her good name and reputation and has a property interest in her reasonable expectation of continued employment that cannot be taken without due cause without due process when michelle elkhorn was suddenly fired as a certified police officer for supposed criminal conduct without a hearing without a chance back yeah too loud i mean you're  one of the few but you're doing it right thing it right you're one of the few that does it right go ahead all right thank you without a chance to tell her side of the story and contrary to the written promises of progressive discipline made by the town to its employees and then her termination criminal carden to act was reported to the wyoming peace officers and officer standards and training commission relying upon those supreme court cases board of regents v cinder mn hall vs davis bishop versus wood and others she sued for unlawful deprivation of our constitutional pretty constitutionally protected liberty and property interests and the common law counts of defamation and breach of contract in this case there are really two issues was the defamation that was given to the peace officer standards and training commission published in accordance with precedent in this court the workman case and nd does the employee's handbook provide evidence of reasonable expectation of continued employment which would amount to property interest all i'll bite on the property interest question what do we do about the pages with the bold print stating that it was not a contract where your client acknowledged that she'd received those the handbook and on the pages where the  acknowledged that she'd read it wyoming wong has said wyoming supreme court cases have said that a disclaimer in a employee's handbook which otherwise provides progressive discipline in promises of fairness is just one factor to be considered by a jury in determining whether or not there was a contract that could be terminated only for cause isn't the conspicuous nature of the disclaimer an important factor though it is a factor that can be considered by a jury but it could also consider other things like the other provisions of the employee's handbook which promises a progressive discipline and fairness and other things a very handsome promise progressive discipline or is it is it more aspirational does it reserve the right for immediate termination and certain instances it does but that again is just one factor to consider by the jury not as a matter of law can this contract which can which consists of other promises other representation is other aspirational things that a person might read and say well i'm they're going to be fair with me plus there's other evidence of they had zero reason and they put it in writing and they said that they made an investigation and then they terminated her that is a course of dealing where it shows evidence shows that even that they had to have a reason now doesn't that show fairness and good faith on their part  well it sure can tell you why it wouldn't be a breach if it that's something that can be argued to or jury what is the intent of the parties when they say we can fire you for a reason ignore all and they come up with a reason that's a course of dealing that can be considered and other evidence could be and can be considered like the bad blood between the mayor and the former nd beacons in terms of whether or not there was cause we didn't cause for terminations so going back to that idea that they put it in writing get an investigation and everything is that your argument that that's evidence of the of the city's construction of the of the employment agreement that they had to do that yes there was a course of d g between the parties if in fact the city believed that its contract provided for at will terminations would make it very easy you are terminated that's it at will but instead they go ahead and come up with this reason now the reason we believe is false and can be proven but they demonstrated through their actions that they believed that they had to have a reason no these employee handbook says i believe a gated for thirty years the you or you him books when she received the written notice that she was being terminated after this investigation how she complained she went to city council members she said this is not true she was asked w appear before the city council and explain her side of the story she said yes so if i look at the record will i see that she said i was entitled to a hearing or i was entitled to progressive discipline am i going to see those things in the record yes you can you keep you can see were she says it's just common sense that you have to have a reason for terminate that that's different  question i wanted i want to know if if she said at any time if we're going to find in the record that she demanded that she receive a hearing when we demand to receive a hearing you know we're getting very technical and and she said yes you know it would she went to the council meeting they met in private and came out and said what's done is done so no opportunity to that was an invitation to a city council meeting that wasn't like she didn't try to assert any right to a hearing herself and look i'm not being critical of her actions i'm just trying to find out what happened now she didn't say i demand a hearing no did she did she tell people i should been received some kind of lesser punishment than i received no she didn't have a chance she was done she her everything was taken away from or her car badge her implements our but that was denied and she then found out that she had been reported to a peace officer standards and training that she was terminated for criminal and the situation there is that the statute provides and it cited in the brief that all information provided to peace officers standard in training will be made available to people in show employers of people seeking to be police officers now that's a very damaging complication of this material is it your understanding that private citizens can go get information from that database or is it only state that you says that it will be made available to to all employers of peace officers so whether it's commonly available to the public i don't believe the statute provides that but for you aware of any practice that allows the public to access those records i think only through a public records demand through the public records act and that sort of thing might be available depending upon the exemptions that are provided in that in those other statues but being available to the public can be an available to your potential employers is a can terribly different thing you're in potential employers are the people who will provide you with a letter with a livelihood which is the meaning of the liberty interest the supreme court is in and on paraphrasing has said that when a person is good name and reputation are be smirched then your freedom your liberty to pursue your chosen occupation has been taken and you can't be done without due process of law your honor i will or may please the court i will reserve the balance of my time  to argue a few points on behalf of his client if i may your honor i have perhaps it would be helpful to discuss the details of the circumstances of the term in asian because i think that there are some details there that would be of assistance to the court in understanding what occurred here as just as you know from the briefs  on april th ms al corn was placed on administrative suspension by chief harrison and in response to judge carson question at that time she basically there's evidence in the record to say that she wanted the allegations to be investigated but she did not specifically ask for a hearing stated he wanted to hear her side of the story he made phone calls to result corns residence he also called one of al corns friends and asked that person to ask this al cord to call the mayor and he did not receive any sort of response to that effort the mayor also had his own independent concerns regarding the charges that have been asserted against ms al corn in terms of falsifying time sheets and that was an incident where the mayor is a fireman learned that there was a high speed chase of some kind that was approaching the town of the barge he heard about the the this impending event through the fire department communications he then attempted to contact ms al gore and to determine whether she was on duty and what her response might be he was unable to reach her then contacted dispatch that controls the ton of the barge and dispatch advised him that she was not working so later she spoke with ms al corn and ms alcorn said oh no i was on duty working the whole time so he had a concern because he had received conflicting information from dispatch and from ms alcorn regarding her whereabouts that particular day the other thing that is significant here is that ms al corn testified in her deposition that when she was supervised by the prior police chief in the barge she observed that he used dispatched records when he was filling out his time sheets and she testified that on one occasion she attempted she used dispatch records to fill out time sheets but she admitted that her time sheets and her own records did not or that the to rest such of records did not match  so she was aware of the fact that potentially her time sheets did not match just records going back even to her her ten year under the previous chief so you agree that you needed cause to fire her ok pardon me your honor you agree that you needed cause to fire oh no no no i i don't think that this is i don't think that this fact is particularly relevant to the ultimate backs of this case and that if she was  i just thought it would be helpful to you i was attempting to answer some of your questions in terms of just facts but no i do not agree that they needed cogs i think in this case they had cause to fire her but they did not know  were talking it just sounded like you were talking about things that would support cars so at any rate i just wanted to make this one final point is just and again i i think that the  i think in fact i think wyoming law on this issue is quite clear as you pointed out what do you say in response to opposing counsel's argument that you see it as is an employee at will why did they go through this effort providing reasons your honor st of all i think that the answer to that is what judge carson pointed out i think that they were trying to be fair i think they were trying to be reasonable rats just gratuitous yes sure and so let me then proceed to the liberty and let me ask you a few things did did she did she ask for a hearing she did your honor in my my review of the record indicates that she did not ask for a hearing of any kind she did she testified that she did ask that the allegations against her be investigated and between april th and april t ok did she did you are you aware of any evidence of the record where she complained that she should have received some type of lesser discipline no your honor there is no evidence in the record of at least that i  ok let me let me ask you a question about the employment contract did do you agree with counsel that in general that these employment contracts have or in employee hand box i don't want the question is whether it's a contract i guess the employee handbook sort of have to be taken on you know as they're written to determine if there is a contract or  not i do not agree your honor i think that wyoming was clear the supreme court through a series of cases has made it fairly clear in wyoming that an employer who wishes to create a personal handbook so that employees know what is expected of them when they're performing their jobs that employers can and can promise or issue an employee handbook and yet still reserve at will employment status ok so bad bad question on my part but depending on what's in the handbook we have to look at the handbook and what's in that to determine if there was a contract   of the employment handbook would your case be different yes your honor if i understand your question if there were no disc laborers if they were not conspicuous if they were not set forth in bold type if they were not placed separately on pages in the handbook and in particular of the employee had not signed them potentially we'd be dealing with a situation of would be governed by the older wyoming supreme court cases specifically i think it's mobile co producing versus parks and mcdonald versus mobile coal producing where the wyoming supreme court was struggling with employee handbooks that had you know that potentially talked about progress of discipline but did not make it clear that there was no contract being created but subsequent wemmick supreme court cases  all of specifically and in particular of relevance here a case called lincoln versus wacken hot and the employee handbook in this case i would submit is  directly related to was probably written in response to look lincoln versus wacken hot and it meets all of the requirements of that case to preserve will employment status a document to wyoming post and it was it's called a personnel change in status for all long horseman agencies in wyoming and i think similar statutory schemes exist in other states are required to report the termination of a police officer to post subsequently he sent in another post documents called an informal complaint form and then subsequently in response a request from post he sent a memorandum that had additional details regarding the circumstances of the complaint form was that required after a termination of a law enforcement officer  not as good question your honor i believe that the complaint form was sent in simply because it is i think it's published on the post web site and there's no evidence directly in the record as to chief harrison sent the nd document except that i think that it was his understanding that he was required to at any rate it be it is clear i think under ten circuit precedent that when there is a statutory requirement to report a particular instance incident to a state agency such as post choose who are child abuse statutes and things of that nature that there is a intragovernmental privilege that exists and that intergovernmental privilege exists regardless of the fact that the largest the municipality in wyoming and post is a state age do you know if the public can get access to the to the post reports your honor i'd like to answer that question in two parts of by may st of all  mr pailin is correct but the the statute uses the phrase potential employer however it is important to remember that there are other statutes in the post out shoots the talk about employer in the sense of a law enforcement agency and so i think that if you were going to construe the post statute as a whole what you would find is that it was the legislative intent misinformation would be available to other law enforcement agencies in wyoming and probably  agencies in other states or to the law enforcement agencies of the federal government i think it would be a far stretch to conclude that information help by post is available general he to employers post is not an employee information clearinghouse when they give your friend two minutes oh yes i'm sorry your honor so if i may i just conclude that i think that the communications to post were privileged as inter governmental communications and the the the state bar claim for breach of employment contract is barred by the fact that she was out will and finally with regard to the defamation claim that is also governed by common l privileges where the challenge of large and post had a common interest in the subject of those communications your honor my name is john powers i represent the town of a barge a quickly on the handbook issue at the wyoming presidents law the handbook meets the requirements of prominence placement and language some page page two in the last page is bolded it's underlined on the st two pages and the way that this law is developed is that the army in supreme court has said that the judge can the district judge can interpret the handbook as a matter of contract if it's clear and an ambiguous and it's at will then the judge is a matter of law can rule and that's what happened in this case quickly on the  the intragovernmental communications i wanted to say as a former police officer that that is critical to these small towns and in wyoming to have this unbridled communications with post because most of the towns in wyoming are small with little governments over the long foresman and so you have lay city councilman picking a chief of police and they're their only real references post and if you think about the duties of police officers they see people at their most vulnerable points and it's critical that this information be allowed to be transmitted to post and to the cities i have unfortunately seen situations although i think law enforcement generally is wonderful but i've seen some bad situations where were people were in law enforcement should not have been there and so i think this is a very important point for all of wyoming and i'm of time and i appreciate you hearing me thank you in this case there's was no trial all of the evidence that contention has that were made during depositions are grist for the mill in a jury trial we have had no trial the contract the employment of the handbook and the requirement to sign a disclaimer adhesive requirement to get the job you must sign this disclaimer and you're supposed to read it carefully understand the balance of the document that makes the document itself ambiguous and somebody who is employed by under this employee's handbook would understand at the employee's handbook is meant to impress upon the employer eat what is going to happen in case of a terminations aggressive discipline little you know we can change we can go we can go to the bottom we don't have to start with st nd or rd those are all means to avoid any kind of responsibility to be fair with the employee and in this case the employee strongly contends that she was not guilty of any criminal can conduct but that has been reported to the peace officers in standards and trial it says that they they're thinking about they may i appreciate that was rather gratuitous but i think it's an overstatement to say that she was under criminal indictment or charged well all right she was never charged that's other additional evidence as to the liddy of this contention that she was involved in criminal activity she was never charged and in fact they didn't follow up on this notice of terman nishan they let the case or the matter be quote dismissed but that does not erase what happen cannot get rid of is there any evidence that the statement about criminality has been published to the public and has not been i wish to the public it has been published to the most important agency for the employment of police officers which deprives her of her ability to engage in her chosen our occupation that's where it's been published very damaging public signed and get a job don't sign no job is that something that we can countenance in this country i don't believe so when you're given promises arguments cases submitted court is in recess until three o'clock this afternoon