thank you your honor is this case is a situation where we have a district court that has taken a square peg and tried to jam it into a round circle there are three issues on appeal i'd like to first start by talking about the district court error in concluding that mr ryan's facebook posts were a matter of public concern the district court did not correctly apply the legal standard focusing too much on the content and not giving enough weight to the form or context the form and context of an employee's speech including the motivation when taken together may outweigh the content of the speech and result in a finding that first amendment protection is unwarranted well what i'm trying to figure out with respect to that argument is whether it's one of law or fact your honor it is clear it's absolutely a question of law well what you just said we need to look at the context we need to look at the form and start from the premise we can't review the district court's conclusions that there are disputed issues of fact in this case correct and so on that one i'm not sure to use your analogy which pegged a matter of public concern fits into your honor i think that it does not depend on the facts of the case it does depend on the facts of the case but the way in which the facts are weighed against the legal standard is in fact a question of law so what the district court did was look at the content of the facebook post and ruled based on the content alone that it was a matter of public concern and they gave not enough weight to the context when which involves the motivation behind us to ryan's you know it's your argument to get gives me this concern  we start talking about weight where we're talking about factual determinations i think as opposed to they show determinations if you will and so i'm not i'm not clear about the answer to this but i worry about whether or not whether something is a matter of public concern in the context of a particular setting doesn't take us back to issues that we made up be able to review had the facebook post merely  said he's a mean guy at work i think that would be a matter of easy easy matter what is if not a matter of public concern but here we have a council race in and we're trying to look at it in context is that making a factual determination well your honor in this case the district court made its finding as a matter of law which is why we were able to bring the issue up on appeal it would not have been proper for mr fidelity to bring an appeal on a disputed issue of material fact well i mean other hand you do argue that i mean to be fair you do argue a couple of the factual issues in your in your brief you say for example that you know though that he was acting he was not he was acting not acting as a private citizen that's it that's classically a factual issue is that we raise that at the lower court your honor but we are not so you agree for present purposes that he was acting as a private citizen and that for present purposes he was fired because of the posts here what we are arguing your honor is that the posts were not a matter of public concern i gree i understand you i just want to be clear were for my own purposes for our purposes on appeal we all agree that he was fired because of the posts and he did and he was acting as a private citizen when he posted them correct so the preliminary argument is it was not a matter of public concern if in fact this court determines that he did speak on a matter of public concern then the pickering balance task requires the court to weigh whether mr fidel and v t s interests outweighed those of i understand problem i'm not sure it's a preliminary matter after all if we all agreed that he was doing he if he did this on on state time and state computer acting as a public servant we'd never get to whether it was a matter of find tricky and i'd like you to address is the question of whether he was a policymaker the district court's decision on that makes a lot of sense to me because he didn't seem to make policy but we've got all these strange decisions out there involving lawyers public defenders are not good contract attorneys for the city our system prosecutors are what's the capacity as a city attorney for a client agency and was terminated this court established and held in that case that an attorney occupies a policymaking position with respect to the city  and so the council members threats to fire her law firm based on her political activity use did not violate the attorney in that case clearly established first amendment rights and i think that principle applies here and in fact in begs this court stated that quote many cases have addressed the role of attorneys in city government and almost all of them have found that such attorneys are in fact policy makers and that should be followed in this case as well for you to prevail do we have to follow banks or is it sufficient that we conclude that the law is not clearly established in this area your honor and i know the or me she would love us to come out with a big statement about where the dividing line for lawyers is but at least for purposes of this case isn't the question of whether it was clearly established determination that in fact yes it is clearly established an attorney who reports to you a department had in a ten per cent and legal department that reports directly to a board of directors for a transit agency is carrying out the policies and regulations that are step by that board isn't there is a little different biggs's a city council that's not not rich enough to hire it house lawyers and so they hire a law firm and they find the people in the law firm are engaging in political activity that's not consistent with their counsel's view not a slightly different context respectfully your honor i don't think it is the duties owed to a client are are the same duties whether outside counsel or in house counsel yeah you know i'm one of the troubles with the label that's been attached policymaker is that we see it in at least two different contexts and operation and purpose of the labels very different one of them is the manila context can only hold the county or liable liable for the action of this person because he or she is a policymaker that's not what's at issue here and so the policy maker analysis from those cases really is off the table what we're really looking at here is basically is this somebody who looks like it political appointee or close enough to a political appointee that the person does not have the protection that office but of course most most most people in most circumstances serve as at will public and public poll unions restrict that to some degree but just because he serves at the pleasure of doesn't mean he's a policymaker i would agree with that statement your honor however as a member of the general counsel's office and for a period of time was the only member practicing in labor and employment law his advice was directly impacting the board  which is setting policy for the agency i also want to make clear that the policy maker will also includes confidential employees which attorneys obviously have a duty of gong confidentiality to to their employers in addition fidelity as the department had had an interest in accomplishing the board's objectives through a compatible policy level or confidential employee who did not disloyalty take a position against an employee of e t a or take public positions that are contrary to the v t a board what was what was mr ryan's attorney client relationship with m arises so the attorney client relationship here was between mr ryan and v g a of course but i mean did he what i can the record says they regularly interacted yes does it tell us more yes if he did this basically and provided labor relations advice to mr charles as who is the manager overseeing labor relations about fifty percent of mr ryan's work involved this labor arbitration work and the rest of it was advice and counsel so they were very closely connected and certainly communications between mr to her and mr ryan would fall within the scope of the attorney client privilege can you can you discern that you're going to lose on the point you've just been debating with this is a matter of public concern can you shift to the you're you're sort of fallback argument i guess is the way yes your honor i would be happy to do that so the district court  erred in concluding that mr ryan's speech interests outweighed v t a's or mr football as interest at the district court level mr ryan alleged he was fired due to the fifth facebook post assuming that to be the case for purposes of this appeal mr fidelis interests in the effective and efficient operations of his department outweigh any  could understand if he said look i got to keep garages he's very good at what he does and i can't have you here being disruptive with him around but if i read the record they sort of left someone simultaneously so there's no real danger of disruption with respect to ross's after he leaves well there were a significant disruption your honor in february of two thousand and fifteen when the demand letter was issued by mr charles as the department was forced to separate mr ryan and mr truong as which was a huge disruption on this small in house attorney office requiring another attorney to come in and do this very specialized labor and employment work in addition a was forced to enter into settlement negotiations with mr causing a disruption mr for belo was required to spend his time and attention away from his duties as general counsel to address these the possibility of anticipated litigation and to address yes no i guess my question was maybe no phrase the firing heard after all this disruption was after the court after the future cause of any disruption was removed which is to say mr terasa or left the agency you know right after that point there's probably no danger of disruption is there i don't think we can safely say that your honor mr ryan was engaged in an eight year  campaign of harassing mr ryan and there is nothing to suggest that that would not have continued with the next labor relations manager and again i want to stress that the focus here is not on what could happen in the future but in fact what disruption did occur and that was substantial the final point i'll make before reserving the rest of my time is that on qualified immunity grounds mr for bella should have the district court summary judgment finding reversed because mr ryan cannot clearly show that he was deprived of a constitutional right and there is no indication that that right was out he filed a lawsuit your honor and issued a subpoena and stop just the thing existed i'm sorry what existed the facebook page how did it come to his attention that it was even out there that is not in the record your honor i think you well we've taken you right up to the end of your time we'll make sure to give you a chance to respond i appreciate it i think your hono right to utter one's thoughts and opinions has ceased to exist when most of frederick douglass issued those words he understood the importance of liberty mr ryan here did exactly what mr thomas jefferson wanted us to do in a democracy in gauge and political debate well that that makes that's i agree with everything you've said so far thank you except neither mr douglass when saying that or mr jefferson we're talking about lawyers disparaging their clients so we have a slightly different situation here well we ultimately have talk about liberty and freedom of speech and political debate not me because the very post here which is done on mr ryan's private computer in the wee wee hours of his own home of facebook that he created not having anything to do with his employer where he says elect anyone except to ross is for city council so the very title is political speech well what if some of the post say and here's why i work with him and i know he treats employees badly at work it's one thing to say he's a liberal or conservative and i'm not but who says sort of i know this guy for work because i work with him and i was wrong and yes and he's a bad guy but just show it that's a good point but here factually that's not the record that's not that's not the evidence the evidence here is that nowhere on this post was mr ryan a den of fide as a coworker of mel but he did say he treats people he treats call employees badly did he not know what he said is that politically he said three things politically where is he on the women's issues and secondly yes go on and what he said it is under women's issues what was the reason that he gave for thinking that he may not be good on the women's issues why would he be hired over to women so if you such a good politician in other words he lectured in a pull up public you make a decision whether this is someone you want to hire this is an interview for a job this man is running for an election he's to be interviewed by the public there should be references just like we all give references the second thing the polls said was where is he on environmental issues he works for a public transportation services but yet he's a green guy but he drives to work every day that's a political issue in our thank green world thirdly he said there is a misrepresentation of his job i learned at least see mr bryan indicated the mercury news published that his title is that of relations now he's saying he's a transportation manager's well if you're hiring someone for a job as the elected it's going to hire the city council member they need to know whether this is someone you can trust or whether he has a  political ok but if george fletcher is a law clerks go out tomorrow and speak about matters of public concern and he and he believes that or make it my clerks and i believe that that would jeopardize their effectiveness in their job i can probably fire them and so the question isn't whether or not the question is in this context why is it ok for the employer to fire mr ryan not whether or not he these are generally matters of public concern or they're about political debate but we have a particular context he's a lawyer for an agency and he's speaking about one of the people in the agency to whom he provides legal advice why in that context can't they and that's my concern yes i'm not sure the last korea stablish one way or the other and that's why that's why to tell me with that well i have to know that the law is very clearly established as  versus count of orange makes very clear since two thousand and six that a public implore cannot fire an employee who exercise streak unless he is some kind of policymaker case where the the tourney the staff attorney was the worked in a law firm with the a law firm that also was to see attorney right now and in that one we said that's a policymaker what we said  policymaker because we talk about someone who was advise in the city council someone who was making policy because the city attorney even though was a private attorney they made policies the problem here is on this record there are no facts that m r low level labor relations attorney joe rhein who was only doing aba tray sions in union disputes managing memorandum of understanding who never saw the the board of of the valley medical authority valley transit authority never saw them never been to their board meetings never advised them at all he doesn't know what they look like he didn't make any policies about anything he didn't supervise anyone he was just a staff attorney doing arbitration his client was the not any particular individual such as to ross or lopez or the other individual escobar his client was the  oh which is the assistant district attorney who is this head attorney in the office and we have brandy and frankel which is a supreme court case involving public defenders are there any other night circuit cases or supreme court cases involving the firing of a lawyer what's with those cases also make the point you've got to look at the duties not the job description you can't take a job description in this case because joe ryan is the senior attorney and say therefore he's supposed to make his seniority is only by virtue of the use of service the fact that he had been there longer than anyone else if he did it didn't alter his duties so it's very important to look at the duties i mean simply because you called someone moses minicom part the receipt could sort of speak look exactly what his duties are and terms of the cases we cite the cases in our brief there are several of them dealing with all the attorneys it's under this idea other types of employees and those that go with lawyers and i thought i separated them but i'm not sure i'll i'll go back to yes they were in the but here's a question i've got with respect to what was in the facebook post and you accurately describe what's on the facebook post i'm not sure it's confidential or secret information that he's using but he's certainly using information that comes to him because he's employed there i'm thinking particularly  his charge that mr ferrars us was hired over two very well qualified women his qualifications didn't match and her there is did and he was hired anyway does that go to the question of public whether or not he's a policymaker because he's really using information he has used during the course of his employment whether it's confidential in a strict sense and that's why he's getting his information well that doesn't make him a policymaker the about the lawyers are typically lawyers who are advising elected officials so if you are the mayor and you have an attorney who is advising you then you are in a policymaker position the fact the problem here again the record is void that of any evidence any fact that mr rhine had any kind of policy make incision simply because he discloses without indicating he is an employee that this person was hired over to more qualified women does not make him a policymaker he's just citing a fact which is also part of public record because this hiring process has to be public because everything the government does has to be in the sunlight so he didn't cite anything that was not already in the public records and therefore he didn't disclose any confidential information nor was he a policymaker can i ask you a different question certainly in most of the first amendment retaliation cases that i'm thinking of the concern we as the court would have is where the employer is taking adverse action against the employee really because of disagreement with the content of the speech in some fashion right that person is making some statement that the employer disagrees with and i guess this case seems different to me because i don't have that concern here it seems as though to the extent that the facebook page played a role at all in the decision to fire your client as opposed to all of the workplace conduct that he was engaged and the only role it played was in kind of further illustrating this campaign of harassment that your client had engaged in so it's not really the first amendment protected content of the speech that factored into the employment present that as the defense to a jury they get to put it on the jury verdict form and then we put on evidence and the jury can decide whether factually they are entitled to qualified immunity but they cannot come to discord and point to anything in the record that compels this court to fine as a matter of law their intolerance of qualified immunity why because it was a clearly established right free speech was political speech is to high as type of speech desperate i know no but i'm are greet they the most of the bell agreed with my client's assessment that this particular individual was not pulling his weight he was not working he was not productive he was an opulent but the subject of the post is about his fitness to serve as a city councilman  that's what i'm talking and no one disagreed with that no one no one disagreed they fired him because he made the post period no disagreement that may or may not be true there were a lot of other reasons to do it just might have been a contributing factor but as you said that goes to again there is no evidence in this case not you know deposition testimony from mr to develop no declaration look at his declaration he doesn't say he made a mistake he does not say that mr ryan was a policymaker he doesn't say that he advised mr rhine and mr mind advised anyone and and there was no disruption because once sultan with russ's four thirty that same day they fired mr rhine so the speech was the motivating factor is pretext to claim that it was in think before the speech you know that that question i think is not in front of us yes it's not it's not but the last point is that there was no disruption in it disruption would have to be actual and it had to be after to speech no one knew about it in the workplace it has to be material disruption and it has to be substantial record here shows there was no disruption ok you're overtimes of you've got one some question some a point to make or one thousand the point the bottom line is that the the this court order must be affirmed thank you very much thank you thank you if you'd put a minute and a half on the clock please thank you your honors if it please the court i would like to answer your honor her with this question about other cases involving attorneys that may be instructive for the court we discussed big xin addition there's a ninth circuit case rendi assistant city attorney sued for first amendment retaliation and in that case the court in found this court found that the government's interests outweighed the interest of the attorneys  right to speech in that case in addition there's a tenth circuit case cited by mr for vello the weaver case where similarly the assistant city attorney sued for first amendment retaliation and the court there also said that the government interest in effective and efficient operations outweighed any interest in free speech that the attorney had in that case there's also that renditions i understand you didn't turn on the policymakers neither of those did your hon but what they illustrate sir is the second of the three points that we argue on our appeal is that in this case mr for bell or v t a's interest outweighed the free speech interests of of mr ryan  i'd also like to just on the policy maker note in the big z and the fazio versus city and county of san francisco cases both ninth circuit cases it indicates that a person who occupies a policymaking position can be one who has a confidential employee or one who requires technical competence and i don't know you know what other profession other than aren't an attorney requires more technical competence in addition he was a policymaker and he was carrying out the labor relations direction of the v t a board it was his responsibility to handle that so and also the same thing to you would you sum up yes your honor thank you final point i want to make is that qualified immunity is also well warranted in this case because the underlying right to free speech was not clearly uster established in light of the long term interpersonal dispute between ryan  insubordination in failure to follow mr football as directive to improve his relationship with mr to rosa's the actual material and substantial disruption that we've described in our papers and given