good morning may it please the court joshua moskovitz for the appellant everett hughes like to begin with the fourteenth amendment claim by not providing a hearing or any opportunity  contest the ban from the new york city public schools before it was imposed ever hughes was deprived of his liberty under the fourteenth amendment and in violation of that requirement that there be due matthews the facts in this case an exposed hearing would be sufficient and that becomes more difficult because this is a case like segal where is ok it's an open question but under matthews why isn't the city's crews in getting rid of that will people quickly more important and then having court felt that that was not correct and rejected that argument found that under supreme court precedent an elected official does not have a legitimate expectation of continued position and was some type of productive ation hearing or process afforded so in siegel the school's chancellor had applied its i believe c thirty one procedures which involves a step that's taken before the deprivation panel is convened to hear the evidence and a recommendation is sent to the it's like that wasn't done here in fact nothing was done here before the deprivation before the ban was put into place and the chancellor did nothing to afford any hearing or opportunity to be heard after the ban was put into place so so i don't believe that siegel dictates that there should be no type of pre death provision here in fact i think  opposite that it has to be something perhaps not a full blown hearing but there has to be something i also think that the situation with the at will employee and siegel as we've argued in our brief is different in this case because that was an at will government employee and i think that the government has legitimate interest in being able to act quickly to remove an employee from a school that they think there's an issue with here we have a contractor mr hughes didn't work directly for the department education so the government's interest his interest in this case might have been legitimate to say he's we're moving that school immediately and we're going to hold a hearing meanwhile but that didn't require them to immediately banned him from forever working in the deal we again and it didn't require calling his employer to say  he can't work for the d o eight those things didn't in any way carry out the government's interest in making sure that he wasn't still in that school wow some type of process took place the fact that he was not a government employee and was just a situation in which one has a well established interest it doesn't make any difference here that he has some remove from the department i don't believe it does your honor because his interest here is his liberty interest in being able to carry out his occupation the band that was given you define you talk you patient as working for the new york's school system because that's who he had worked for before and that's his primary calling card now that he's no longer an employee but why couldn't  consulting for other kinds of school systems are not the new york city school system but you know on long island or some other associated place you are you know words of the distinction that you say an expert in the new york city public schools that's where he had thirty years of experience before he retired all of the consulting firms that recruited him after he retired specifically worked for the deal we recruited him because he had this experience and knowledge in a public school here he lives in new york city at this is where he works that is his occupation i don't believe that unlike a hairdresser or a doctor who requires a license to do a particular profession this was just his strength but it wasn't his occupation in the same way it seems to me but i believe it's more than a strength i believe it's his expertise and i've been following the department chancellor's ban on his working in the department of education he has been unable to secure any type of work or providing educational consulting services to organizations that do any work with the deal we out of fear that that will somehow be taken as a problem with their continued contracting with the d systems adjacent there's no now addition in the complaint at that this posture of the case that respect and i will say that the new york city public schools as dominates the area in which mr hughes works and lives in  york city i think it's appropriate for us to find his liberty interest as being deprived where he is unable to do that work for his expertise as you want as you say in the complaint exactly what it is his expertise his respect to he had provided some of us consulting work there after he retired and that was his expertise i see that my my time it's ok don't judge you can't raise the question i may i'd like to turn to the first amendment question and because what was done was or what was believed to have been done was clearly outside of employment he was supposedly fomenting a demonstration which it and i will also go along and say that under heffernan it doesn't matter whether that was actually what your client was doing but eventually they believe my question goes to the fact that your complaint says that they banned him for that for vitter belief in that and also for the belief that he fomented variety and damage to superintendence car now my question is if they aren't will be six do you have a right to focus on since he alleged all three we fired him and all three because if you know if it's if you had only said one of these vent i think i'd have to say all their defenses qualified the complaint but that they fired him because very wrongly believed that he had fomented the demonstration which is a validly meant to be a riot from into the right that all fre that are troubling to me this is the point just those two other things the riot and the damaging the car didn't occur and the plane none of the oh no so the complaint i believe in just to address your point the complaint i believe states that those two things were in fact false accusations there was no riot and there was no damage to the car so so the complaint alleges that that the department of ed amendment value lation if they banned you in the belief that some things that didn't happen that don't implicate the first amendment had happened and the reason i think a twelve b sex think judge calibers is referring to argument which is made on page thirty of the read brief where the defendant says that according to hughes is complaint what what cha a wrongly believed he had done was idiot i'm quoting organize the riot and lead others to damage the superintendent's car and what the defendant argued and judge calibers is asking about is that doing things like that i'm organizing a riot and leading people to damage a car are not protected by the first amendment however  the defendant refers to j sixteen here and i have the strong impression that the defendant has misled the court in this argument and i will i hope i can be persuaded by the defendant that that the defendant has not misled the court because if you look at the cited passages they don't say what the defendant characterizes them it's it's not a matter of your argument those things didn't happen the question is what did you allege and if you look that he caused that that for renia believe based on the accusation she heard from the superintendent that he caused a riot and that he led a group of people who damaged the car and there's a big difference between causing a riot and organizing a riot because if you organize a riot you you are encouraging people to riot and that's not protected by the first amendment but caused a riot doesn't it doesn't  it leaves open the question you can cause a riot by saying you know look what a terrible injustice has been committed here you should all write letters of protest but you get the crowd worked up and they riot you have caused a riot but you have an organized a riot and with respect to the damage to the car it's the complaint said as he led the group of people who damaged the car the characterization in the defense brief is he led others to damage the car and there's a big difference between because you can lead people who are demonstrating that's protected by the first amendment and the fact that they go out and damage a car doesn't mean that you were leading them to damage the car which might not be protected so i think that you know what really happened we don't know but to the extent that the that we are governed by the facts alleged in the complaint the complaint does not allege as the defendant argues that the that the superintendent believed he had gauged an activity which is not protected by the first of it and if the allegations are all in belief in feelings which would be protected by the first amendment then we're back to heffernan invent mistake with respect to your city and and that becomes important or you but that will be addressed of you thank you thank you very much you have two so i hope you can convince me that you did not mislead the court and in you know in addition to the passage on j sixteen which you referred to in your read brief although it doesn't say what you said it's as is also a passage in the complaint on j ten which is consistent with the part on j sixteen it says on j ten in paragraph two of the complaint that  hughes learned the joy stallings heart the superintendent had falsely accused hughes of orchestrating the demonstration that's different from workers trading a riot orchestrating the demonstration is protected causing a riot which is different we don't know it's ambiguous as to whether there's intention or whether the riot resulted from a properly protected stuff and leading a group of people who damage her car not leading people to do your brief was misleading the court as to what is pleaded in the complaint first of all good morning honors morning thank you i should say that myself i don't think so but even if we were to take the allegations that are pled in the complaint where it says orchestrated demonstration caused a riot but a group of people who damn you don't dispute that that organizing a demonstration is protected by the first amendment no you know we don't but the something that is going on and then steps outside and organizes a demonstration that certainly wasn't part of his job i mean gaar city goes their cities at doubtful and dangerous opinion but it goes only so far are you going to push their city you know on we're not pushing our city this is a direct application and let me explain why i'm sorry i'm sorry but yes i want an answer to whether you have misled the court because it seems to me that you seriously distorted purporting to characterize the complaint as pleading that chancellor freemium believed he had committed acts which are not protected by the first amendment you used words which are not the words of the complaint they were it appears to me carefully and judiciously chosen to alter what was said in the complaint where the complaint sad he lead people who damaged a car you changed it to he led people to damage a car that's a big difference on the issue we're talking about so can you persuade me that this was not a deliberate attempt to mislead the court how does it happen that the thing that you wrote is so artfully changed from what is written in the complaint on j sixteen but the intent was not to mislead the court your honor we cited the passage well again we provided the site you asked me the question i clarified the answer is that we are very very sorry we didn't mean to mislead you even if we did us a business or you can give to give it yes that is the complaint specifically alleges that he was he was called that morning and he was told to report to i s two ninety two because there was a demonstration occurring this is a situation where you're saying that at any time an any time the person is where he is because he's been sent there by his employer it then follows that any first amendment activity he engages in that place is is is not speech is a citizen under garside he put his speech pursuant to his employment because he's because he's very because he was told to go no you're right it's not just that he was there he was there to address the rockets the demonstration observe to observe again his job was to go over there and watch and presumably report one allegedly happened was that the superintendent believed that instead of doing that he stepped outside his job and addressed took part in did something in a demonstration which is first amendment protected and on the basis of vapid belief is is what the complaint is he was fired heiferman says even before belief is wrong very is protected how was his doing any of these beings conceivably part of his job it was don't you know i'm not saying that he couldn't have been fired maybe later because he stepped out of his job but that would have to be something that can't be isn't isn't before us isn't it it will be six it's something that might come up as a defense later but it's precisely because he did something that was out you joe well you don't that's not the material question whether he stepped outside of his job because he was there as as trying to articulate he was his suppose it speech there what he alleges the defendants believe it poses existence to his being there to be impossible for anything that you did within your employment in cases which we have is outside the employment because it was something that the employment didn't require  there on site he was not for example sent there to look at the i t system or develop a curriculum in those hypotheticals if he had been sent there to do that he happened to see that there was a demonstration and he decided to join that would be a closer call and it w be your honor different case that's not what is alleged in the complaint suppose suppose he was sent to observe and he says my god what is going on is really deleted i mean come here and give a speech saying let us go and march over schools or do something of that are you saying that that is part of what because he happened to be eve year because of his employment that what he did after was part of his hoopla yes and i think i'm going to try to explain it through our say because our city similarly he was a prosecutor his job was to write memos assess cases he came across a case that he believed his office should drop and he decided to write a memo criticizing his office's approach to that very so much  look at what is going on and that's completely different he wrote it to his supervisor if if he had picked up his cell phone and said you sent me to observe there is a demonstration going on which i think from being sent to your is a correct thing should i go in joint that action might well be doesn't matter what the reaction is if you were speaking as an employer and he was there that day because he was told to be there as a representative to give you a hypothetical supposing that he was same thing facts or he was sent to observe the demonstration and and that's why he's there observing her for want nothing much is happening and he says we're out here i am i'm not doing the right now i'm going to call up my boss or somebody and complain about something that's been on my mind and he calls up his boss and complains about he was doing it from a place where have been sent by his employer you seem to be arguing that because he's been sent there and he did the speaking when he was there that means the door set is involved so he  have his employer and he says you know you're completely wrong and what you did the other day and the employer says you're fired is garcelle he covers that because he was he was at the place where he had been sent by his employer b r what is he complaining about is equally at the thing and he thinks something happened two weeks ago yes because his it because first of all carr said he tells us that the first amendment does not invest in its employees with the rights perform their jobs however they see fit so if he was sent because i was sent to the place where he because he was sent you saying that because he was there or having done something or by his employer anything that he does at that point that you're ok i see your point you're it's not just that he was physically there it's that he was sent there to address this very specific problem the fact that they were anticipating and it turned out correctly that there would be a demonstration at the school so he was called up that morning and they said mr hughes we need you to be at the school to  be our representative as the complaint alleges he he is specializes in alleged he said he specializes supporting deal you principles and part of the contract that his employer he was to provide support services to principals so it is not at all of leap to understand that he was sent there to be dio ease representative response to interpret ambiguity in the complaint in the light most favorable to the defendant or no i'm not saying but i'm saying it it's very clear from the complaint why he was hired and why he might have been sent there he was not sent there as a you know third party observer he was hired as a contractor to work on behalf of dio that is why he was set there that day at one point to what it is in the complaint that makes it clear that he was a deal in time for something that he did as a as an employee pursuant to his allegedly did something that his employer was happy about it's the fact that he was sent there in the first place by his employer who is with a current who had a contract with  that he was funny because his your lawyer believed that he had done something which had he done would have been outside of his employment and protected by the first amendment you know if you read the complaint that's what it seems to say and it seems to use a little exactly that he was fired because he did something which was not gaar city covered but was outside of the employment and yet what he did was first amendment protected now revealing vacuum plate how can we say that and that's quite plausible how can we say that that doesn't get both beyond your city and covered by   why him with respect to the chancellor why isn't a action taken by the head of a department why does not represent the policy of the department i understand perfectly well that under menow law if a lower level employee does something that doesn't result in in liability of the municipality unless unless it is done pursuant to municipal policy or whatever exactly the standards are stated now bristle different when when the head of the department i think we have a number of cases in fact i think i've written something which say that when the head of the department chief of police or somebody like god takes an action that is that is department policy because it's the person who has the by has the power and authority to make department policy so why why is work why does the why does the city escape liability to the to the extent that that the actions were done here by the head the chancellor of the department own are you asking about the qualified immunity or whether or not about all i'm the city doesn't benefit from qualified right right so since the city doesn't get qualified immunity it nonetheless it gets protection under under mo now unless unless what is done is department policy is municipal policy why are the actions of the head of the department the chancellor why don't they represent department policy that that renders the city potentially taken by the head of the department here the head of the department said this person is banned from working for the city according the complaint right why isn't that department policy she declared the policy of the department is he doesn't work for us he doesn't come here just don't keep him away why isn't that the policy of the city that renders the city potentially liable under more now well i think still under if moving to the stigma plus claim still under siegel all mr he's was entitled to was that a post from a nation hearing and he had that available he could have sought he could have gone to state court that the city may not be dismayed at will be six because of your isn't any sufficient claim of something it would make i think that's w in the question but i think it's still dismissed because he had available the process that he was due and he could have gone to article seventy eight to challenge this fear arenas ban what you are saying i agree there is