investigations ongoing involving my client the st one was filed by an individual in september of two thousand and fifteen the  present his position and then go to the president and presented his position and then went to the to the provost and presented his position and didn't they review oh you know report's findings were unassailable impregnable who didn't he present evidence documentary evidence of some kind to the parties that he was appealing to him  ohio for further fact finding they certainly could have it headed as a matter of fact at one point judge mathis and the interim president asked the question investigation that's the language and the way that that's the language in the university of denver case from last year if they conduct an independent investigation ringback they need on their investigation to be cure well there was no independent investigation here as a matter of fact the faster records show that both the feeney in dulles the ultimate so called decision makers i maintain that deal was the ultimate decision maker refused to provide that information that is not the case as a matter of fact the record shows that when the odio requested information from my client within that day my client provided the information with regard to the individual complaints and with regard to the questions that were posed by helio so now what do we do about the subject of actions that i believe a been made i your honor and me at court my name is palm manes i represent the board of regents of the university of new mexico and fifteen individual defendants named in this appeal now  mr moses have described part of this lengthy process but not all of it and we take exception to his description of the omeo investigation pardon for somebody asking me a question ok i apologize no the ojo investigation as mr moses described began with two individual complaints that's what initiate in the course of investigating those complaints and within their authority the office of equal opportunity decided that what they were looking at might be a department y pattern a practice discrimination situation so on their own initiative they converted this work into a department wide investigation and just so that the court appreciates how deep the investigation was it lasted for nine months mr moses said we violated our own rules it's true that we try to can conclude these investigations faster than the nine months but this involved  the pattern and practice and departmental investigation yes he did and he did participate in the hat how did he get noticed he received written notice and i can't remember the da i know that he received one in september and he received a nd one when when the departmental investigation was actually underway so and he was invited and i only want to correct something else your honor he actually was interviewed in the context of the departmental investigation i'm not really sure what motivated his hesitation to be personally interviewed in the two individual investigations but he provided responses to written questions so so i mean there is no way there was no power for the  investigation d and this is done on a voluntary basis but it's certainly the case that once mr valencia was involved with mr being represented by counsel his counsel accompanied him to some of these things and participated in the predetermination review of the results of the yoyo investigation now mr my i'm sorry judge was was he given the opportunity to bring in his own witnesses and be with the oh we owe people that's sort of two questions your honor the st one is was he permitted to bring in his own witnesses it's done a little differently than that at the the allegations and he identified them they were contacted by ojo and they were interviewed so i don't want to leave the impression that it was like an adversarial process it was an investigatory process but once that once the oio report was issued number one mr valencia appealed the process and the substance of the oio report to the president of the university robert version well that's the problem there's multiple appeals that were going on here judge kelly and that's that's why it's a little unfair it's true that what happened when the o report issued it went to the chair of the department where mr valencia worked for determination whether action was appropriate that's less feel the chair of anthropology that was to determine st whether there should be any sanction for the conduct reported he determined there should be censure and then his determination is a recommendation it goes up to the dean of arts and sciences mr and it's the case that mr valencia pursued appeal to the dean of arts and sciences to the provost of the university and he was challenging whether there should be a  and what that sanction was but separately over on on a different avenue he was challenging the process and the substance of the oio report directly to the president so he was limited if you're referring to the room the appeal related to the oio report he was limited to reviewing the report the evidence that supported the report and the process of the report so he was limited in that respect but let me say there was one appeal that for whatever reason mr valencia did not pursue at the end of the precincts in process when the provo ultimately made the decision to terminate mr valencia's remaining seven months in his contract he could have appealed that decision to the board of regents there was authority for that and he had separately appealed his terminations decision to the academic freedom and tenure committee that was a a rd branch of appeal that was under way at this point he could have appealed the a f n t decision to the world and i can i stop you there hello not i can i get you to respond though to opposing counsel argument that you can have all the appeals in the world but once that report was completely dead it that was that there was no hope at that that's really what carried the day and there was really no all this is his argument no due process leading to that report well i'm not sure what you know a part of what i'm struggling with is due process has sort of two complements pretty deprivation and post deprivation the investigation i'm not sure exactly what layer of procedural due process we're looking at these of the the investigation is simply a come it's a complaint process and you want to investigate the allegations of the complain i understand that mr moses contends that professor valencia wasn't given a fair opportunity in the investigation i simply disagree and so does the district court after reviewing the substantial record before it  it's clear that you know he was reluctant to talk to ojo in the context of the individual compliance but he was not reluctant to participate in the investigation regarding the department wide investigation and in fact justice just as mr moses brought up in his argument there was evidence against professor valencia involving taking students drinking taking them to his home documents produced from his lawyer and from him we interviewed witnesses that he asked us to interview who supported him we interviewed the the entire faculty of the anthropology department so i don't think that i don't think that due process requires us to hold a hearing or any anything of that sort at the investigatory phase nothing had been resolved in terms of a factual basis at that point they were they were still talking to people finding out their perspective on this now you agree there was never a hearing i agree that there was never what people would describe as an adversarial hearing it in other words and a hearing where witnesses are subpoenaed and cross examined and i think that the brief in our briefs we argued and we do hear that a full blown adversarial hearing with cross examination of witnesses is not required in this instance and there were looking at the the factors that are provided to us by the matthews versus eldridge seminal decision in this area you know well and just as a follow up to judge question and maybe it's a bit of a repeat as is mr moses correct though that is to say again that that that report was the subject of its own appeal and mr valencia availed himself of that appeal all of the information in that  report all of the interviews all of the all of the information rolled up to the president of the university of new mexico who sat down and and i direct your attention to his decision which i think  stone i don't think suggests it's subject to an appellate review which this investigatory report was subject to and so i think i just can't agree with that characterization  do you agree that he was in total to more substantial pre term anation procedure if his post terminations procedural opportunities were limited is a legal question but actually i think i do agree with that what we find of matthews is that due process is a flexible standard it takes into consideration the nature of the property interest involved in this case not a tenured faculty wasn't losing retirement benefits he was losing seven months of a one year contract as a probationary faculty member so that's a no on the road to tenure no i'm sorry i thought he was on the road to tenure you know i think that he is not he was not what the university considered tenure track yet but it's pre term anation process can go into the mix of the total question of whether there is adequate due process for an individual or government employee in advance of an adverse action in this the it certainly there was much more than the minimum standard announced a louder male which is supposed to provide an initial check against mistaken decisions this went far deeper than that stated st professor valencia addressed the chair of his department arguing against any sanction for what was reported in the report next he oppressed the dean of students and again this is in the record the deans the dean talked to personally to mr valencia and his attorney heard the arguments you're hearing today he went back and reviewed the report he actually interviewed members  witnesses who were identified in the report and identified to him by mr moses and mr bullen siya he then you know met face to face with him to determine whether or not he was sorry for what had happened ask you one other thanks how do you understand in response mr alliance u s argument that he learned about new evidence that was used against him only during pretrial discovery  from three students and he said he only learned about s and the pretrial discovery process your honor i'm not familiar with that specific piece of the investigation right now i know that another student came forward and made another complaint of course what the court should remember is that all of these students were named in this federal lawsuit and they were deposed and there was a full opportunity to cross examine them and none of the evidence provided would have assisted mr valencia in his crimes so your time as a your time has expired appreciate the argument from both counsel this morning the case will be submitted and counsel are excused thank you thank you