mr mr kant lieutenant cannon's career has been unblemished exact during the term of chief wilson and i wanted to speak with the court about some issues that were raised by the district court judges  highlight in my oral arguments today first with respect to the constitutionally protected speech i know that the district court focused its decision on my client's failure to wilson in his bid to become chief and indeed that's not the only constitutionally protected speech that my client engaged in gauged in other constitutionally protected speech or failure to speak as the case may be during his tenure and that included his failure to support wilson's political agenda once he was already chief occur that occurred throughout the tenure but certainly ending at the promotion oppose his bid to be chief or the people that were there were eliminated and indeed councilman nazia of the town himself acknowledged that there was a real concern that chief wilson was going after his political opponents in his bid to be chief and that that was really at the heart of his reorganization plan tell us what the latest act of political speech in getting your client by your client with respect to not supporting his plan was when when was the latest act  in february of two thousand and twelve where initially he did not agree to go to the town board to support mr wilson wanting to promote an ally name lisa cost up there was that act and indeed there was when the with the promotion of peers cost that was in january i believe that promotion what happened in february two thousand and twelve with the promotion of captain pearce and my client did not go to the town board with with respect so when when the board told wilson that pierce was going to be promoted over wilson's objection what wilson did was he immediately linked it to my client he said to the town board kiran and piers are days away from being indicted at that point in time there was no investigations into my client was the act of political speech by your client might be two thousand and twelve my client refusing to use his perceived political influence as a republican councilman to get the republicans on the board support wilson's agenda wilson asked is who did he tell you he was the one to support he wilson was was was right in the fact that he didn't do it because he didn't do it from an earlier time he wasn't supporting this at all right from the get go but you're saying that he has he told somebody presumably so how do you know i mean apart from the fact that he did support how do you know what the day was well we know that wilson was regularly bringing my client into the office in december and january and february and saying i need you to go to the board to support my gender and my client was saying i'm not comfortable doing that i'm not first of all i don't have this power that you think i have just because i'm a committee men and second of all i'm not comfortable using my position as a committee men to do that so so and again i go back to wilson immediately there's no investigations that times telling the town board that my client is days away of being promoted because he beat because pierce was being and then let's face it the real problem you've got here is that wilson supported your clients all botia in the fall of two thousand and i think it was eleven october twelfth two thousand and eleven he was promoted to lieutenant and that thereafter there was this whole cycles investigation and wilson which you may think is a pretext but wilson didn't like the way that was handled and did an investigation and there were disciplinary charges brought against your client to which he pled guilty of thirty two disciplinary charges but he pled guilty to four of them and under those circumstances that can't be a problem because he pled guilty so you know and everything else can flow quite easily from the disciplinary charges so i you know i'm trying to look for look for something to support your case here if i may find a little hard your honest question r multiple points first when he came to promote my client he said to my client i'm promoting you so you'll help me with the town board chris knows he the councilman the for the town himself said that wilson promoted my client as part of a political bargain with certainly wasn't an adverse employment action you know where you are but that's certainly the protected speech in the sense that in the sense that wilson even said to my client after the promotion i only promoted you so you can help me with the town board and then my client refused to do that which is why it was after the pierce promotion was trying to get all the support he could get for his his his his actions there can be made all of this is he said she said little petty politics within the department and that's that's that's the other flavor that comes through from this case and so but but but at any event the bottom line is your client has promoted that he is suspended because there's an investigation and then he's reinstated to wilson and mits that he knew about it three months before and it's not until they promoted pierce and wilson himself said to the board that cannon's days away from being indicted there were no open investigations at that time the second incident was well put to bed at that point in time and w the the street crimes unit was closed down and shuttered was being used for detectives they cut the walk to the stage photographs i mean every single officer in street crimes none of them were interviewed about the condition of offices sickles in the sickles investigation doesn't happen until after the pierce promotion when wilson himself says my client is days away from being indicted he's got no investigation at that point in time so then he undergoes a campaign to go after my client to find something to punish him to intervene he wanted his other officer i broker and it was the republicans on that have a specific conversation you can point to that says in january february two thousand and twelve or any time that your client said no to wilson i'm not going to support piers for promotion to the town or there's no i'm not supporting piers but he's saying to i need you to support my agenda which included piers before the town board told wilson asked conversation in the record when that occurred was when january and my client with wilson did not know that piers was going to be promoted intil he was told by the town board and that's when he when he lost his temper he told the town board their phones were tapped people were being indicted and none of that was true he made it up and then he went afterwards and started to try to find evidence any way he could and the evidence wasn't there so they staged that evidence and my client was really the victim of this campaign that nobody believes any of it is true nobody believes they would draw strewn around the unit even though even at the end of wilson's tenure the wilson had no authority to act and his last two  after this town script his authority away well when my client was coming back he sent an e mail saying take away his police car and take away his supervisory responsibilities and the very last act was to email officer cost from his personal email after having no authority and said secret his file away and give it to someone else you read and then the file ended up in newsday served couple minutes yes i have for you then i see that my time is up thank you very much my name is simply have my gello i represent the town of southampton in the town of southampton police department i actually had a whole bunch of stuff prepared but i would like to address a few things that mr abel upset by me first of all the january two thousand and twelve conversations there is no support for that in the record at all that he claims happened second and has continued to claim that beginning in february march you know that's when discussions took place and that the he said the charges were pending and that no investigation was happening at that time that's not true the record it a one twenty nine states that in december of two thousand and eleven the investigation's begun so it really had nothing to do with any purported conversations if there were any on the record doesn't say that there are in january of two thousand and twelve is your understanding of the last time the  talked with wilson about supporting or not wilson's agenda so at the record it states that mr wilson would regularly speak to all command staff and administration about not supporting an agenda but promoting the objectives of the department i do you understand we have to read the record favorably to the point so we've put aside wilson said what's the what's your understanding of the plaintiff's evidence his testimony whatever  in the record about the last time he spoke with wilson about not supporting wilson's agenda spring of two thousand and eleven prior to and around the time that mr wilson was given the  yes here you know the district court was correct in that mr kiernan did not engage in any political or protected speech he merely was he the chain of causation correct i don't know whether refusing to take a position when you are a party official which is was in my view problematic and is refusing refusing to intervene on behalf of the police chief with the town board is a matter of public concern or something that would be  fact and it would be would be protected speech or not i i mean it's close at these are these questions are not easy always under very savvy but it's so so but i think your point is that even if it was protected addition when he said he didn't support him he didn't say it was for any reason other than he wanted to bring another candidate and he wanted to have it promoted from within and the person that he wanted promoted from within was also not a republican so get to that point the speech wasn't political or a matter of public concern you good morning my name's leo dorfman i'm counsel for chief wilson counsel addressed several of the points i was going to make the only thing i wanted to follow up on was this notion that this  and the security personnel file was somehow stolen from the police department the record is clear from lieutenant pierce's testimony that in fact a copy of the file was made and taken to the suffolk county district attorney's office the original of the file remained at the police department so this notion of the fall was somehow stolen is simply false similarly why aren't some of the things that happened to  these things at the time that it happened there are criminal complaints drafted and not filed every day and not one of the not every time one of those things is kind of unsettling it might be unsettling if you find out about it after the fact but unless it's drafted with the intention to cause an individual to feel like they should be prevented from speaking then cast in  case were harsh but every step of the way was supported by some information that the police chief received independently of misconduct on mr kiernan's part so from step one the investigation started in december twenty circles and those those are the things he pled guilty to had the town not settled and he had been found guilty of some of the other charges it's on the spear that he could have been terminated and as to the political speech i mean he it's certainly odd i guess that a police officer is a political committee man but it would it seems as though republican committeeman so why can't why shouldn't one put together the fact that your client cast him as a political actor asked him to function of political actor and took hostile seps as his boss when he when he failed to do that and why should the jury decide that question well judge it's certainly disputed that mr wilson asked  plaintiff to act in a role as you did it's it it's disputed that he asked him to act in a role as a political actor i don't think that the court has to accept that the steps that mr wilson  take are political as such when mr wilson asked him to do was to support him with the board to what the department speak with one voice with the town board that's not i think it makes a great deal of sense least chief should be able to ask his offices to support his his agenda and you have responsibility for running the police department and you want to be able to ask people to do it but the allegation is that  the plaintiff was asked to do so because and in his role as a political act by your client that's the allegation and i think there's some i some support from the record for that but that was from mr wilson's testimony my understanding is the district judge suggested that there was some other evidence that the investigation didn't actually get in two thousand and twelve for example the case number was a two record you're right is an index number showing when the file was opened in the computer but the testimony that we have from mr wilson that the investigation started in two thousand and eleven that he asked sergeant cost to start the tasked sergeant lisa costa with conducting the investigation i put that's just his say so i mean our obligation is to sensually reject all evidence that a jury would not be required to believe that's the rule to your client at this point january or in february it wouldn't have known about right away i mean you know there would be an investigation without his knowledge presumably most best geishas of a particular person he wouldn't that it is not notified right away that's right he wouldn't have known about it necessarily in december he wouldn't have the reason the reason i point out the timing when the investigation started isn't on the issue of whether it was an adverse employment action it's rather on the issue of what was the intention of mr wilson when the investigation was started activity or some political speech here if the investigation started two months before the claimed political activity or political speech then we can't draw any kind of inference to that effect what did you understand your adversaries claim as adverse action to in other words you're saying i take it that there was no adverse action here ultimately right that you know there were things were done there were things put in files those best occasions open and so forth but it never came to anything ultimately that's right so on the motion to at the motion to dismiss stage we made the argument that certain actions couldn't qualify as adverse actions underpinning retaliation claim such as the investigation the disciplinary charges and the subsequent suspension and the reason for that was that mr curin ultimately pled guilty to some of those charges and so on the motion to dismiss stage  the district judge dismissed any kind of claim that could be based on those charges so with that gone my understanding of the summary judgment stage was that we were left arrest because no one ever tried to arrest him such as the statements made to town board members which i think really are privileged because it was his job to make those statements and it was the town board's job to listen to his statements about personal matters there's this notion that statements to the press were somehow adverse employment actions and so you know we've argued that those don't qualify as adverse employment actions and in any event my client had retired same as your ability to articulate why and but the refusal to do it is one that goes on over time and and you can always you can always change your that if we don't try to at least localize it to some time period then we're left with a potentially absurd result where if if if mr curin and is asked at some point in two thousand and eleven to support my client's agenda so to speak and then says no then i think what you're suggesting would mean that if he just continues to not do anything for any period of time then any action taken during that period of time could lead to an inference of retaliation and so i think we have to hold the plaintiff to some time period to some specific act or statement that he will speak or he will not speak so that we can localize it and determine whether some action before it or after it leads to an inference of of  retaliation otherwise we have this indeterminate period you know if it was two years down the line three years down the line could mr kiernan turn around and say well this whole time i have been not speaking  and and and he's just been holding that over my head so i would urge the court to look for an actual moment of political activity thank you it's two quick points if i may your honors first with respect to that when the investigation started not only did it have a two thousand and twelve number on the investigation but the supper reports which are the reports that he sent four out of twelve officers to get that day after the piers promotion after he told the town board my client was days away from being indicted why shouldn't the chief of police expect even demand that his officers support his agenda for remaking the department that he's now responsible for i don't believe that i think that you have a first amendment right politically to say if we're going to make certain changes that affect our touch upon the public concern which certainly is the staffing of the town police department that you do have the right to to i don't i don't believe that a chief has a right to make you go to the board to support that agenda you have a right to stay silent you have a right to actively oppose that political aspect to it in the sense that he's asking to go to the board but if if he says you know i want you to quit bickering in the office i want you to try to get in line with  some of the some of the proposals i have and support them right you know i've heard your viewers you're against me but now that's over i'm your boss i want you to do x and if you refuse to do it i mean that would be ordered my client to discriminate on the basis of gender race or national origin that wouldn't be an order that could be enforced similarly if you were ordered to do something that your constitutional rights protect you from that's not a proper order and yes second we have gone back and forth with the lawyers on the timing you said there's a conversation in january two thousand and twelve they say the last conversation occurred it's summer two thousand and eleven that's what the district judge says point you point to the place in the record six five seven of the record is an affidavit of john where he testifies that in january in january or early february of two thousand and twelve wilson makes the comment that your republican friends are  yeah that's what i thought you were talking about actually you've got another one yes ok so connected to that on five twenty one of the record is my my my client's affidavit and he links the timing of wilson saying i councilman knows he testifies on page i'm just trying to get that page right  now at six fifty one six fifty four and six seventy six he links the he links the the activities of wilson to my client opposing it and the activities  wilson going after my client for not supporting that wilson's agenda i want to be very clear in what you're claiming the adverse reactions are here if you could just tick them off for yes your honor so initially it's the launching of the investigation first wilson says comes out it could be a day say what it was going to the next february ninth piers gets promoted february tenth he launches that investigation he sends out a third of his senior officers to investigate not officer sickles and whether or not he was actually on the drugs thousand and twelve three days after the pierce promotion wilson sends the letter to the town board attempting to demote the plaintiff one week later after the town refused that is that is april yana i'm sorry and may force wilson suspends my client without pay and there's no results of any investigation at that time he doesn't even tell the town board he just suspends them without pay a let me assure those when there is he got got his always leave during that time he did end up getting paid but at that moment you're suspended without pay you're not even aware of what you're being accused of and in this investigation nobody speaks to the office just a geisha maybe you don't know at that point it's you know maybe they're working it out there was there were things that happened that that could be the basis for investigation but i think it's critical to look at that investigation that you're investigating sickles right but you don't talk to any of the officers that actually worked with sickles and you don't talk