llama then a bench you will see the digital timekeeping tobias on the clerks each side will have twenty minutes for their argument the appellant will also have five minutes or impossible ways remember only the court of the court is permitted read yes may please the court counsel this case comes before the court for dinner will review of a writ of mandamus that was issued by the circuit court ordering the current sheriff of marion county to reinstate the former sheriff of marion county as a sergeant is an extraordinary remedy and there requires the plaintiff to prove his case with a clear evidence of a right to relief and the defendant's clear duty to act and here a writ of mandamus is not appropriate because there is no plaintiff is unable to bear his burden of proof to show a clear right to reinstatement or your duty to be reinstated the core of this case is interpretation of the marion county merit commission rules and the plaintiff hinges this case on a single sentence in those rules without considering the context within which that sentence appears the sentence relied upon by the plaintiff in seeking reinstatement as in article six of the marion county merit commission rules article six has three subparts subpart a is the leave of absence provision the plaintiff was a sergeant in the marion county merit in the marion county sheriff's office when he elected to run for sheriff in a special election to complete another sheriff's term under the rules of the marion county merit commission the plaintiff must take a leave of absence or resign in order to leave his sergeant's position and take the sheriff's assertion a discusses leaves of absence and it specifically references leaves for government service and it also discusses if you don't follow the rules in certain circumstances you may be deemed to have resigned resign may only be reinstated with the approval of the sheriff and the marriage commission that's a discretionary act and that in that case the individual seeking reinstate must follow the rules of reinstatement those rules of reinstatement are some paragraph c titled reinstatement and some paragraph c provides that individuals who would like to be reinstated must meet the basic requirements for the job and go through the screening process of the merit commission and that brings us to the sentence the plaintiff relies on which provides the tenured personnel running requirements of the job and go through the screening process but if you left to serve a sheriff you're excused from proving that you meet the basic requirements of the job and you're excused from the screening process and that only makes sense to excuse someone who is serving a sheriff for meeting those requirements in order to be reinstated i mean how does that in c m c wools how do they contradiction to the so that yes your honor the local governmental one where your political rights acts states that you cannot interfere with individuals political rights and requiring somebody to take him about since while they are serving as sheriff would not interfere with their political rights because it's a minor all you need to do is request a leave of absence and if you're going to leave your job for an elective office you either need to resign or take a leave of absence and i now use use you made it very clear you made a clear statement that while serving as  the there is no case law and the attorney general's opinion said that requiring a leave of absence to run for sheriff could impede the political rights because that would require the individual to for done their salary for go pay while running for sheriff and that that provision doesn't come into play in this case because mr de vore when he ran for sheriff in two thousand and eight was not required to take a leave of absence to run for sheriff and who made that determination no one is him from the m c a and c rules require that i'm i'm not sure who made that decision it's just we weren't able to determine whether a decision was even made just nobody nobody required you know i think that to give a little background very late no one enforced did at the very least that's true and to give a little background when mr de boer were ram st year of there was a special election the current sheriff have resigned or left office in the middle of office and so they were looking for a sheriff and i think that might help explain why that provision was not enforced i see and i see so the tracks and candidate to fill that position for that two year period no one in force that that he gained office december st two thousand and eight and in early december right after he became sheriff for the two year term the acting sheriff submitted a request for his paid leave to be paid out as his final pay as deputy and then the board took it up at a board meeting and approved his final pay as deputy and paid him over thirty three thousand dollars of his accrued leave and i think  it's not so much the amount but it is the fact that he received part of that amount was payment for his accrued sick leave and that can only be paid upon terminations of employment and so i think it's important that he accepted this money part of which can only be paid upon terminations of employment under the they have a collective bargaining agreement a union represents the deputies insurgents and under that agreement pay can only be made on termination of the arm and and so that i think that demonstrates that devor did not request a leave of absence he resigned and while it wasn't a formal resignation he communicated that he did not intend to come back to the job because it cashed in all its paid leave and then that when he did he really have a choice in doing that i mean active sheriff is the one who initiated that process did he really have a choice in light of what was going on he couldn't be both well he could say he could have taken a leave of absence and said it's not proper for me to be paid this because if i lose the future election i mean remember he's only going to be sure for two years unless he wins the next election right and that we're talking about the two year period where he the two year period is where he was paid out right correct so at the time that occurred we're not talking about an election yet he's already won the nder the collective bargaining agreement collective bargaining agreement does allow individuals to take a leave of absence just as the marin county marriage commission rules do and so have you taken a leave of absence under the collective bargaining agreement you would have had a right to return to his job and no one seems sheriff does he have the right to do that the right to request a leave of absence i do the collective bargaining agreement is he still covered under the collective bargaining agreement when he's elected not as an elected sheriff but of having taken you took office on december st the election results were announced not before december st i don't know the exact date but he certainly could have submitted a leave of absence in between position i don't know how he can do that if he's now an elected he even if he no you're just saying that there was a time between when he knew and when he was sworn in correct but either way as as the sheriff he's no longer covered by that c b s so i'm not sure what effect and i'm asking you you know how does that really affect you once you've been elected starter and he's going to mao have to make a decision on whether he's going to resign or take a leave of absence and that's going to his decision is going to impact whoi hires or how he goes about the hiring process i just don't know i mean he was sheriff i mean i don't know just how he remains with options is what's concerning me in this case and maybe maybe m out let me ask you this and as a as a add on to justice cases question if he's not after he is sheriff elect before being sworn in is if if we assume that he's not covered under the barbarous also said we have two different potential a we have a collective bargaining agreement we have the american mission roles now he thinks he's going to be sheriff for two years he i mean we're in what kind of asking him to tell the future right well to make it to declare his current intentions about the future or you could say you know what if i lose the shares a watching him i'm not interested in coming back i'm going to resign i'm going to accept payment of all my paid leave and i'm going to serve a sheriff as long as i can conversely if he says i'm going to take a leave of absence i'll just keep his options open if if  that comes with the consequence of not being able to get at least your sick pay and if not the other payments and so that's important to when he comes back if he's reinstated and sergeant he's going to be reinstated with no review time whatsoever and so he's going to have to accrue that we've time over time why is that a problem i mean i would assume he knows that right and that he would be a problem if he needs to take a leave if you get sick and yeah but that's a risk everybody runs when they come into work and have no lay time and have to occur you know the only advantage she would get directly i guess is he's being put back into a sergeant position instead of at the bottom of the seniority lester right right right and he does not have to get the sheriff and the american missions approval if you take a leave of absence five you don't have to get approval but if you resign you have to get approval and that and so if you are if you resign that approval prevents a writ of mandamus because that it's a discretionary act on the shearers part now if i remember correctly from reading the record department if he lost the sheriff's election right right well he talked to other people about that issue before e except before he ran for the two year term and realized that was an issue the acting sheriff at the time had negotiated a letter of understanding between the union and the sheriff's office and i will act as sheriff but we need to sign this letter of understanding that i will  indicate that he would want to return to his sergeant's position at that time as the acting chair pad then we would have prevented from getting into the situation where it was unclear where he got paid out as paid leave time and he permanently replaced him self you address in your last minute or so maybe just as jason or i guess on resigning right now so maybe i'll give you a couple extra minutes to address the issue of whether or not the court and they acting so that that's what i was looking in the expects when i should write and that's because it's not clear what route the plane took took did he take a leave of absence he says he didn't nobody thinks he did  was just mentioning about the purpose of the merits of some law to ensure that we have qualified and proper person now in place with out looking at their political affiliation you know the political contributions that they've made or any of those issues and that's one of the main reasons we have a promotional list promotional exams and applications and all these things that are within the merits of the law mr de vore went through officer intends to run for sheriff he has to ask for a leave of absence i know there's a section in article sixty eight that talks a little bit about what will happen if you do ask for a leave of absence but there's really no section in here that says you shall ask for a leave of absence when you serve as a sheriff and unfortunately no matter how you wish to read this we can add we can ask this court to add language in to the american mission rules ok or when you start in regard to run him for has his st run in the special election for the two year period if he had done so then he would not have had to really request a leave of absence while serving in a government office is that correct also i don't read the rule that will retain their position that's what it spends it is clear cut he retained his position whether he asked for a leave of absence or not is irrelevant because he retained it now if you do read these rules as saying that you have to ask for a weave about since whether you run or you're elected both of those situations would be a violation of the political rights act now the political rights act is very specific you cannot have a  think it's your rate of speech i think it's the just the technology there's there's glitches well i appreciate your patience what i was pointing to is the article six section a dealing with leaves of absence of if you read the last paragraph it says that the sheriff and the commission artist sole judges of the appropriateness of the reasons and purposes for which still leave as requested and they are alone shall establish the conditions for approval of such a request so if this rule tells the board that he has to ask for a leave of absence while he's serving as sheriff it is a violation of the political rights act because it allows the outgoing sheriff to put conditions of any sort and to be the sole judge of whether or not this lead is appropriate and in a fact what it sa a part of any election he was just stepping up and acting sheriff that was a negotiated to deal between him and his union and the the sheriff's office my point is though that if you're saying that  outgoing sheriff could have dictated the rules in this case we had a letter agreement the how does that affect your argument well the letter agreement only applied to  said of course so that helps you drop out of course if you go back to their my point was that in hindsight yes he could have asked for a leave of absence yes he could have asked for a lot of understanding but the question isn't could he the question is was he required we've got a rule from the commission that's very specific that if you are elected as sheriff your tenet personnel when you run which  after he was already in office so he already was sheriff at that time when the check was cut and why is that important i think it's important because he was ill they knew the election results many months before he became sheriff and if they in fact in indicate or intended this to be a resignation they would have been able to tell him that they should have been able to tell him and writing final pay  on a piece of paper does not equate to a formal resignation by my client a formal resignation or any of the resignation must be formal is must be voluntary it must be side that these are future payments this is a crude benefits than the exception then he's that's an indication that he is resigning that position so i think i think you are venturing off into an unnecessary argument when you're when you're suggesting well this isn't future payment this is stuff that he's earned i think everyone understands and so you know part of the part of the issue that i have with this case is that he your client stated yes in a deposition and i'm paraphrasing that he understood he was taking a risk that if he lost an election he might not have a job to come back to this was this was his understanding as he related it that was just understanding prior to running for the to your position and he he took took on that risk now what's to say that you know with a little bit of investigation he could have found that that would have been a risk and he simply taken a rez leave of absence because my under my reading suggests that if he had he taken a leave of absence at the time that he initially ran for the two year period and won he would not have to ask for anything additional in terms of the lea because it would last a long as his position as sheriff last so then in what six years when he lost the next election he would have come out of that losing campaign and able to be reinstated in the position he was in the only thing he would have lacked would he not have the thirty three dollars or seventy thousand dollars in a true benefits that he accepted when he when he took the position for the st time so and my understanding is the compelling reason or the reason for that enactment was so that departments such as it is in county boards  could effectively manage their personalities budgets as to knowing whether or not they have a space open to hire a new deputy and move a new current deputy up to sergeant or if they should put a current deputy in a temporary or a position as a sergeant and that fill that deputy spot or if they do make sure that it's very clear that hey if the sheriff comes back as sergeant you at the bottom of the rung are losing position so i'm not sure that you know that i think the strongest argument here on your client's position is that it doesn't under the under the  political activity act or whatever that was heat he's not being prohibited from running for political office but he certainly is being inhibited in some way by being required  to take a leave of absence in order to do that well i doubt that that argument now which i think we did in our brief during his deposition i think one of the things he  he wasn't sure and quite frankly not being a lawyer and not being able to understand as we do or our judges do you could make that decision and that's why when he wasn't able to be reinstated he came to  he can get up proper handle on it in hindsight could something else have been done yes on his they have as well as the american mission out as where is as well as the acting share everybody in hindsight could have done something differently what we back that's unfortunately a consequence that we have of poorly written roles but this is what we have to do it and we can't just import language into this section because it would make us feel better or it would make things may make things easier this is the line it cardboard let me ask you a question if i could why is mandamus the proper way to go as opposed to say mandatory injuncti elected or appointed will retain his senate position on completion of his elected office and so we don't feel there is any discretion here this is very clear cut duty and our client has a clear cut right to return to his position to be clear for the record when so i'm concerned about the rules where you have to take this legal babson's what paragraph has that just for the record it's article  thinks well actually there's there's too in article five section j it's us and you tendered officer intending to run for political office shall apply for a leave of absence as provided in article five irrespective of rank such leaks may be granted whether the officer has or has not completed his probationary period and not get it but those two sections that you think violate the act regarding political conduct yes and then the section that you believe stands on it's on let's neutral as far as political activities is the one that says the eggs to be reinstated and what is that just for the recording so that would be article six section see the last paragraph ok arguments sorry for the technical glitches and i said i'm not a technical expert but i think it's your internet is glad i was just lagging a bit that's because of that i can say that all the time when they're playing fortnight and the one thing i want to point out about the sentence is that it's imbedded and that's a paragraph see it's not a stand alone at the end of the article saying notwithstanding all the foregoing if you're sheriff you have a right to come back it is a specific clause that modifies the sentence that precedes it and that makes sense because the sentence the proceed that says you've got a if your sheriff coming back after having resigned and you want to it's but how does that change what she was saying and mean is there something in that paragraph that you think changes the mandatory effect of placement yes i think the other article six can you tell me specifically what the court ruled that you object to what was the specific finding or ruling because the relief you're asking for is that sheriff and the american mission if they approve it reinstate him so they could they could review it would be discretionary their findings would be discretionary they to the sheriff and the mayor commission because the sheriff it requires both of their consensus in the sheriff has already refused to reinstate and so without the sheriff reinstating him but i would be ok with the court saying you know what sheriff you need to consider and either accept them for reinstatement or not ok thank you and as to the political rights act the border not asked for a leave of absence so regardless of whether that's not right for decision whether the whether question it's a it's a hypothetical that didn't happen with the sheriff have said you don't get a leave of absence because i don't like your political party well that's hypothetical let that happen and it doesn't matter and even if but isn't her argument seven that the fact that you're relying on that is what makes it antithetical to political activities i mean the fact that he has to do that event is what is not allowed under the statute regarding political activities is a better argument a myth seems to be and even if that is the case then the question there's any way of saying that it you know the him see him see prohibits his right to run for office but how do you argue that it doesn't at the very least in hi by requiring a leave of absence to run for office