all right time next case this morning it's t i versus city of lawrenceburg case number seventeen twenty eight zero three please the court of counsel good morning i'm richard butler one of the lawyers for doug taylor in this section one thousand nine hundred eighty three first amendment retaliation case i come to you this morning all the way from the very southeast corner of the state in the end of that's where all the activity in this case took place in the simplest late terms were here before you today because down in my neck the woods somebody didn't count so well they never realize that two is not a majority of four one was that the problem with the voting first raised in the district court mr butler you are that was raised at the summary judgment level i see it raised page thirty one of your summary judgment brief with respect to your own motion for partial summary judgment and i don't see that point ever having been linked in the sense in the summary judgment briefing to as the as the answer to th your honor it's mentioned in our brief and footnote four at page three it's noted there the defendant didn't terminate taylor until after the terminations hearing i believe it's noted again page seven we're talking  ok then it page seven we mention it again your honor and the point was that we were pointing to some circumstantial evidence that showed retaliatory intent and we were talking about procedural or irregularities in the procedural irregularities we point out there is that they didn't follow their own decision rule i understand but i'm trying to understand why you said in your brief you're not trying to be clever but this is really an extraordinary theory as near as i can tell was not timely raised in the district court to defeat race two to convict judge the first time that issue was raised was on pleading summary judgment we responded to it there and we argued it there both in response to defend its motion and i am ok marshall so so where where do you say that the findings can't be given binding effect because there were only two votes judge we may not in that brief at that point because defendants raised  a argument at that point was not based upon the board's fine rather before this board hearing ever took place if you look at defendant's argument i had to file a complaint in the circuit  to stop the board from having the meeting or the hearing in executive session and also challenging whether they could do it because it wasn't a disposition of his criminal case what defendant asserts in their argument for  and then the appeal that you filed in the trial court that you dismissed they do now after the court's order but in their own motion for summary judgment that is not the basis of their race judicata argument the basis of their judicata argument is an action that we filed very very briefly to enjoin what the board did so the first opportunity for us to raise that was when we raised it  is your theory that in essence your client still works for the city of lawrenceburg that he was never fired he does not his job was terminated despite the board never having made a decision to terminate it well it did and it did so in accordance with indiana law which permits the board to act and conduct its business on the basis of a indiana law say on that subject if indiana law authorizes the board to adopt whatever policies and procedures they're inclined to for handling these disciplinary matters well indiana law authorizes the board to conduct it acted according to the quorum i disagree with that your honor the very well there's no face in the law for that disagreement if i could explain your honor the law says that that board action is a form as it was i agree with your  honor can adopt whatever rules it wants for handling these disciplinary matters it adopted such a rule here and it's clear and bit ambiguous on its face it said in order to make a decision in this case it's going to be by a majority vote of all those members present throughout the hearing of the evidence that's their rule the second factor that's undisputed and that was before the district court is that there were four such members present and the third factor that makes clear the court's error that was also before the court is  only two of those four members present voted to adopt those proposed finds two is not a majority of four therefore the board failed although acting as a form properly to make a decision because of its own s if there's a time such as was conducted in accordance with the four it's standard operating procedures and customs judge i don't think there's any evidence of standard operating procedures and customs certainly as pointed out that the mayor does say i only vote in the event of a top and i know that why that is under indian state law of the mayor presides over city council meetings but he doesn't vote in those city council meetings because he's not a member of the council but the law goes on to say marriage there's a tie you can break it and i think that's carried over in the marriage mind but really the fact that you didn't vote or why you didn't vote doesn't matter because they've adopted this rule that says it's got to me have been jordi of all those present except the mare the rule doesn't say a majority of all those present except the mayor because he only votes in the event of a tie the rule doesn't say a majority of just those who vote they're stuck with their own rule that's not a bad how many votes would it take to change the rule i think that's an interesting question one i'm not prepared to answer and don't have an answer to i would think that a majority form probably would be ok in that instance then why not treat the final decision which everybody recognizes was given effect that mr taylor did lose his job as a police officer is implicitly having done so judge and i'm going to come back to the rule that rule means something that's what the board told mr taylor was going to happen in this case here's how we're going to make the decision and i think it's important to distinguish between what individuals did after the board failed to adopt those proposed findings and what the board did the board actually through its votes and to make a decision and tailor it needed at least three votes because the reform members present and that's what the rule set so the board didn't act to terminate taylor was he subsequently terminated sure but his affidavit says he knew it was terminated because he was already suspended he wasn't working he was getting weekly paycheck but the weekly paycheck stopped coming in and he also got a pay check for the benefits of the accumulated up to that day now some individual had to stop sending pay checks had to also send him a paycheck i don't know under what authority because the board never decided to terminate taylor and mr butler if you aren't all these arguments with regard to the  final and binding and then are we found to give effect to the findings that to terminations of the boy that the in the end of law it determines to be final and conclusive your honor the right to appeal is person went to a board decision made personally to that disciplinary process but probably under your rationale any time that a respondent to floor someone defending a board terminations thinks that there's some reason why the board's determination is invalid whether it's because they don't have enough votes perhaps the way the board conducted the hearings perhaps it's because their arbitron capricious in the way they decided or evaluate the facts all of those arguments go to is quote unquote valid or invalid and so shouldn't all of those issues alike be raised properly before the indiana courts if there's a decision i agree with you but the difference between i think this case and the case you're talking about is in this case there is no decision there is a decision you question it's validity because of this issue about whether the board could act by a quorum or not according to state law and the board's own rules that's an issue to raise on appeal to the circuit court from the board's decision to try to invalidate it but once you withdrew that you can't come back and try to collaterally attack it through a federal civil rights action and that's what you're essentially doing rationale for his determination before the board and so we've got factual findings in the board's decision that basically if if they are binding i mean there's no first amendment causation  but i guess what i'm i'll tell you in preparing for this argument i was astonished at how little law there is on the interplay between tenured civil service like police officers firefighters teachers and so on and their constitutional litigation in india so i was wondering suppose an officer loses one of these cases  before the board but does not ask for in the board does not make findings about causation like this i would take it your position would be you could you could take that to directly to federal court without going to the state see that i've got just a little under three minutes left and that there are other questions i'd like to reserve the balance that time for a vote of could i ask you to just very quickly you seem to be asking us to disagree with the county prosecutor about whether you would have had a brady obligation to disclose to defendants officer taylor's it mission zoomie in a criminal case not so concerned with the brady disclosure i have no issue with that but i think one of the rules admissible for as collateral evidence of and of impeachment but wouldn't a defense lawyer has this disclosed to tour and she has officer taylor arresting officer on the stand isn't she entitled to ask him didn't you admit that you had lied to the city government in the following respects your honor i don't believe that she is under six zero nine and i think six of seven if i'm not mistaken she's not allowed to ask about a prior instance of life she may not be able to put on independent evidence of it but if he ys he's committing perjury in that case right that's a pretty messy prospect for future prosecutions with if officer staler taylor stays on the force my understanding of those rules your honor is that you can't bring that up absent a conviction really can you can you ask somebody about prior instances of dishonesty with it did not lead to criminal convictions judge i don't know the answer to william bruner and donnie bryant this court should affirm the district court's grant of summary judgment for three main reasons first because the board's findings were arrived at by a majority vote a majority vote out of four members as a two to one vote in the and that case i understand that but that's not the rule the board this right the the board adopted a rule that of the jury vote of the members present and hearing evidence would terminate the plaintiff's employment and they voted by two to one with the m as your honour's noted he only votes the event of a tie capillary considered the same circumstances they too considered what would be a majority vote of of four member board and vote would be very compelling here but for the resolution and even if respectfully i do believe that the court did or that  board did vote by a majority vote and even if the plaintiff was correct that a two to one vote was insufficient he was still obligated to appeal that to the local court and he different argument originally and i confess i had focused on the plate of summary judgment papers i didn't go over yours as carefully so what was your what was your a student or human originally based of it's based on honor police officer who had gone through a term of disciplinary hearing such as mr taylor is the board makes a decision and under indiana law he is required to appeal that decision to the local trial court and if that is not done or voluntarily dismissed as in the case here the findings of the board are final and binding and that is what occurred here the plaintiff lost his job and even if he felt that the handled and particularly the adkins versus hamilton county the terminated officer in his appeal in state court of the proceedings he may be able to go directly to with federal court with that claim however the fact that he did initially file an appeal all of his claims should have been filed at that time had he not but it's kind of a dual answer had he not filed the appeal which is basically the a fact that his voluntary dismissal gives the board's findings the board's findings are the university of tennessee versus elliot because the plaintiff did file a state court appeal he is then required to bring all of his claims at that time he raises in his state court appeal following the proceedings that the board's decision was contrary to the constitution as part of those allegations it involves his first amendment claim under section one hundred eighty three involves the same evidence as  assertion that the board's decision was contrary to the constitution and as a result he needed to bring both in front of the state court he could not have gone to split his claims as he did here and go to federal court because plaintiff is unable to establish a claim for first amendment retaliation for any of his alleged speech to begin with his assertion that he was terminated because of his disagreements with   the case law that you're a lying upon involves public officials who lose or who lose powers as public as elected officials right and it's there  in the political milieu you but plaintiff's theory here is that because of his political activity on the city council he lost a four cause tenured position on the police force i've never seen any employer contend that you that it could remove a tenured police officer based on his actions as an elected official and that matter remains it's not it's not just a question of whether it's protected it's a question of whether his tenured civil service position is a police officer you know is vulnerable to the ebbs and flows of politics and the whole purpose of that student system under indiana and many other states laws is to protect police officers teachers firefighters and so on from those kind of political currents in protected as a police officer is not protected as a city council member correct however city cop or even higher level police officers can sometimes be terminated under the line of cases if their position rises to the level that they may be considered a policymaker and that is the rationale that the first and second circuits have adopted in determining whether an elected official but those folks don't lose their tenured position under indiana law in police force it's right that as you get promoted from lieutenant to chief new mayor comes in and you're back to attempt you know not often force right that is cracked and we've just we maintain that that remains an unresolved issue in the circuit and that at least on the basis of whether or not that particular theory of speech is even protected would be entitled to qualified immunity with respect to the letter that he disseminated on march fourteenth two thousand thirteen this letter to is not protected speech the duties of a law enforcement official remain at all times to investigate and report on a crime at that point he'd been suspended for a year and a half right he had no authority to is a police officer so how do you contend he was acting as a police officer he had been on administrative leave immediately following his charges being charged with criminal acts and after the new administration came in she was assigned to a series of civil service type positions however even though he was working in other positions he remains he remained a police officer until he was terminated on september twenty seventh and  that sounds like really extraordinary in another as we wind chills you lose kind of argument to me frankly well in the circuit those court has previously decided that another police officer who was working as a media  she had reported on criminal acts in the court this court still held that she was she was in the police department going to correct she was the police i would jobs with what job was mr taylor working as of march  and so how does his letter accusing multiple public officials of various forms of corruption fall within his duties for all even though he was working in other personal loyalty and confidence are necessary speech thirty seven of your brief a police department must have confidence that its officers are loyal to the city and to the interests of the department and therefore this letter was so disruptive you reconcile this is certain about personal loyalty and confidence with the state's civil service protection of police officers from that's the kind of argument it's made with respect to high level policy makers to fire them for political affiliation the police department remains a department of the city where discipline and loyalty among the department  of the city because of the disruptive nature of the speech the in several ways not a is not in the office anymore that is cracked so how does his criticism disrupt working relationships his working relationship that's the theory under pickering cracked he's not working with them and cracked in other places decided by the circuit the circuits previously determined that when plate when employees go so abruptly outside of the chain of command that their speech tends to be more disruptive in the pickering balancing factors tend to favor that when they're really not employees he remains an employee at the time that he but no  the basis that was asserted was that the board of works also governed the other civil positions that he had occupied and there was a genuine belief that there was the authority to terminate his position from all such departments everything and for the city or everything under the board's jurisdiction and the belief was that the that fabled had the capacity to terminate him from any such positions that he held and your honor they see that my time has expired if there's any further questions i would be happy to answer them thank you thank you thank you i guess i'd just point out to the court that whether the board made a decision in the taylor case is exclusively a function of the board's vote not anything that transpired subsequent to that vote so i have to thank you thanks to both counsel the case it's