morning in may please the court of requests five minutes where we're voting on  the key issue that i want to talk about is the issue of whether or not sergeant williams when he spoke with his subordinate employee in january and march of two thousand seventeen was acting as an employee of the city of allentown where he was acting as an employee in what capacity it is our position he was acting pursu his ordinary job duties he describes in his amended complaint that he is the commanding officer of this specialized d unit the juvenile division of the city police department under him he describes having fifteen subordinate employees that report to him both regular officers as well as detectives part of as he describes his job duties is it here insta the laws of the united states come  up pennsylvania and the city and then he goes on beyond talking about just appearance to the laws which we all recognize police officers have those responsibilities he also talks about part of his job duties is that here in a city policy and this is what the discussion based on the term in the complaint the discussion that occurred in january in two thousand and seventeen put them but the facts of this case have nothing to do with this at her to policy it has to do with this discussion with a coworker about what the coworker might want to do in terms of running for office so it would seem to me that advising  coworkers workers regarding this has to have been something that was part of what he was paid to do that's different from his in the course of his duties that he it hears how is what he did in this situation within the ordinary scope of his duties because you have to take it out of the context because of the the situation here acknowledge it's an unusual situation we're talking about a police officer running for for of the city while there an active duty police officer but what sergeant williams describes in his complaint is this officer came to him to have to try to understand what the city's policies were with regards to whether or not he was permitted to run for mayor and in fact he alleges mr williams that is that it was not part of his duties to give advice about conflicts of interest with outside activities and don't at this stage don't we have to accept that as a factual statement is true and isn't in fact your real argument in front of us you disagree with the district court's interpretation of the facts or if we don't if that's your position then how do we have jurisdiction but has a lot sorry it's twofold one is pursed of all there's the qualified immunity issue as to whether or not this was clearly established whether these conversations statements that he was not acting as a employee but acting as a citizen but on the other hand he is talking about he is the commanding officer of this unit he is talking about one of his subordinates coming to him  that doesn't necessarily mean that's the kind of thing that in floor and i said he and laying the court said there was a broad assumption of everything that's not what but the standard is the standard this is it ordinarily within the scope my question to you is what have you averred or what have you contended that the scope of his duties includes that that he did not if he did we have to have a issue of fact as to the scope of his duties based upon his pleading we don't really have an issue of fact he said he's not this is not what he does the scope you know he had here is he does this he oversees these these youth programs so what have you done to to make this an issue of fact after the scope of his duties well in terms of the process right now is because it is on a motion to dismiss we have not put  evidence you know that you could have it would have a contention in connection with the motion pleading that this was this was within his scope but her age that i haven't seen anywhere you've where you've heard that it's who our contention based on his pleading were he talks about his responsibility as a commanding officer to adhere to city policies and this discussion and that's why we believe this is part of his ordinary job duties he's talking about himself as  officer responsible for city policy has a commanding officer that means making sure your subordinate employees are following city guidelines city policies do not run afoul of their  required if i it defies my law clerk they they say is this you know am i allowed to do x and they come to me for advice and i say gee i'm not really sure let's let's let's look at it  and you know someone says well that's you know within the scope of your duties and i said wait a minute federal judge that's not what i do day to day the fact that somebody came to me and said you know what's here i but your thought about this i suppose that here to laws as well but when i advised my law clerk you know i'm not sure but you know i would think it's ok i'm not doing something ordinarily been in the scope of my duties anymore them and here is but there's one more factor here in this case they also talk about the sergeant william said i believe you could be wrong but i'm not sure you need to go to the chief of police outside of the command structure if if it's leaving you sitting on the street talking about the next run for mayor own town we can't be directed to go to the chief of police and talk to the chief of police as to whether or not city policies permit you as a suit i reckon file officer rd to run for mare of the city  then your argument that the district court misunderstood the factual allegations or read facts to the factional geishas in the complaint different than you are advocating today and if that's the case how do we have jurisdiction conservatives appeal now well you  subject matter was not within the scope of my duties therefore i was speaking as a private citizen i was speaking about a matter of public concern namely mayoral run and therefore there should be no retaliatory action towards me under that factual scenario which is the one the district court felt was supported by the allegations it stated a claim and qualified me was unavailable and i guess i'm still back to this are we really aren't you advocating a set of factual  positions that are different and therefore we lack we lack jurisdiction to adjudicate that matter i understand but what i'm advocating is even looking at plaintiffs if you take away plaintiffs and you look at his factual allegations with regards to what his responsibilities are to feed phrases himself as having a command position he phrases himself as having fifteen employees that report to him he phrases it in his complaint that these employees come to him when there are issues with regards to city policies it's always best to it that childish and what he says but discussing providing advice on conflict of interest is not within my duties you ask mr ignoring that allegation but embrace every other one my suggestion is that is more of a conclusory allegation than a factual allegation when you look at the factual allegations in its t as well as just a commonsense understanding that when you are a commanding officer having a subordinate rip report to you about a city policy i understand that the race for mayor was absolutely a public concern but the ordinary job duties of a police officer and whether you're violating city policy or not when you know whether you're allowed to take sick leave or whether you're you what time your shift starts or whether you're supposed to mitchell case of always said where there's a factual dispute open immunity is not appropriately appealed because you need to develop a record and the district court recognizes that in a thirty eight of his opinion which is  he clearly says that he recognizes after going through the saucer test the st two prongs of the tast he gets to it and finally recognizes that the facts have to be established which is what i argued below at the district court qualified immunity may be a bailable but we need the facts what is there an issue of fact here there is what what are the duties of this particular person now we we shouldn't be deciding this issue no you should because there's no jurisdiction there's a dispute as to the facts as the city just argued but there's a dispute as to the facts then that that the district court should not have thrown it out i can't argue that he's incorrect throw out claims because that's really no reputable he spoke as a citizen categorically categorically his position and you're saying is at issue as to whether categorically he spoke as a citizen you know be the issue is one of the i but that's that's the underlying issue right the sidin the whether categorically he spoke as a citizen the district court said the scope of his duties did not include this as alleged as a  and therefore categorically spoke as a citizen now if there is an issue as to whether the scope of the scope of his duties then there's an issue as to whether categorically spoke as a citizen the she had he should not have thrown it out  you know maybe he should not have said counted in the category as a matter of law there is no qualified immunity no because he did go through the saucer tests he did go through the test early fall the traditional  officer running isn't part of his duties but he went down there were there other facts pleated that go the other way on this matter no there aren't that i saw and that was part of my argument below which is the city  has to police from the facts of the complaint not its complexion you think but the facts in the complaint give us on the following picture mr williams had a command position he supervised fifteen people one of those subordinates came to him asked for advice about whether he did something outside the workplace it would complete with his police duties when unable to provide opinion sent that employ up the chain of command would that were reflect that he was treating it as it was within the scope of his duties to wasn't my job to tell the person maybe you should check with the chief and i'll help you with your political aspirations is is something we can develop into through  thirty eight that discovery may deter did reveal that plot about immunity may in fact apply after scott that language is specifically at a thirty eight it's a short paragraph and it's a discovery and then we've never really argued  maybe when we get done discovery maybe the facts as contended by the parents might be correct we have simply said right now there is based on the complaint a claim stated and opponents say well that's a conclusion we we argue it's a fact but it's a fact in dispute and the court has to look at that as treated as true though because it will be six standard so the city wants to come forward and present  irrefutable evidence that disputes that fact which would be to produce some of the the records produced people who have been similarly treated so it would be recognized that he my client would have recognize to do this and the city contends differently and i understand their position that they want to present these facts but we aren't very get because those are if you've been focused as a result of our questions on the duty a scope of his association claim the free speech claims although they may be close they're different and holds that in the association could have you could what have you played on the free association in the association claim we said that his association d to help this employee run for political office is different than his free speech claim because this circuit has down search turned around and said wow it was a police officer who was in contention with the put it was in the running for police chief job and he'll wind himself with the police union the county didn't particularly care for that and we're going to give him the police chief in  ny position so that he retires and he argued that which is like my affiliating with the union is association as a matter of my speeches which unions protect their activity which followed the citizens going to publish a movie about hillary clinton and the federal election says no that's electioneering you can't do that they argued it was a violation of their socio free speech right and it and the supreme court says wait a nd here now association claim because the district court seem to deal with them together it your understanding that the district court tonight qualified immunity because the law was clearly established in the act says alleged would violate that law is that what your understanding of the deed was wrong he it as part of their qualified immunity motion they could have said you know there's there's you know papers and documents that support you know a description of his duties that would include this but they've not they've not done this you're saying that your complaint alone sets forth a factual dispute correct a question regarding the conspiracy count the district court seem to consider it as a conspiracy  racial or otherwise class base invidiously discriminatory animus that's the statute which were and oh i agree i agree that it how is this how i have it's not based on race it's not based on race should it not have been thrown because it isn't this is nothing about race and the money given me leave to amend it were i could have argued it was really challenge sufficiently and said look it's really a civil conspiracy cl decision i don't want to think because my position is the this for don't have jurisdiction i have the right to feel that point percent right i only try to deal with when i thought of the issues before the court which was one is their jurisdiction and with regards to mare i want to point out particularly with regard to the mare most the allegations here relate to the conversations that the suborn employees have sergeant williams and then it was taken back to the chief of police the only factual allegation in the entire amended complaint about the mare is that later on in september of two thousand and seventeen the mare rescinded a offer to settle a labor arbitration or labor grievance that had been filed by sergeant williams arising out of his transfer out of the union so even if you constitutional violation factually on the part of the mare the only allegation with the mare is that he rescinded a later settlement offer he there is no allegations that the mare retaliated against  result of this statement his is only factual allegation that the mayor had a knowledge of the what was going on was in september of two thousand and seventeen when he talks about the mare making you have this decision everything else relates to  you contend that you slam dunk and title qualified immunity in the district court was just wrong i contend that we are entitled to qualified immunity but the district it's clear without a doubt under his own pleading that this was definitely within the scope of his duties is that this factual dispute that point to raises is really confusion as to whether or not he is acting in the scope of his duties based on the pleadings but based on qualified immunity it's not clearly established that those type of conversations between a superior an inferior employee rises to the level that there's been no cases from this court or from the from the supreme court has ever said conversations about employment rules that occur outside of the workplace is or is not protected by the st amendment you're parsing it a little bit to finally hear we don't just have this we have the fact that the coworker says that mr williams is providing association and aid we do not have a situation where mr williams is being stripped of his dut soley because of this one conversation there's more to it than that so you can't really say oh ok he said i'm not sure talk to the mayor is that constitution and that's not all that happened here there's more to it but you agree there's the whole facts haven't been played out and haven't been developed but what will happen that they were plaid that he was that the coworker told the mayor he's giving me association an aide which says therefore that you know williams is on board with this whole idea not just that he's giving him some kind of objective advice but he's with them but we don't think he would have been fired just for saying i don't know talk to the mayor well it was it was talk to the chief discussions were all with the with the chief not with with the with the mer but it again it's our position that these discussions are all related to the official job duties the ordinary job duties of sergeant job descriptions in and of itself aren't highly relevant to the that they had they're helpful we have no idea what the scope of his duties from your standpoint you would seem to be the one to tell us exactly what he was supposed to do i can't go on at this stage of the process all i can do what you look at say the evidence will show and therefore you shouldn't you shouldn't decide this this issue and the court you know lacks jurisdiction because there's a fact dispute but we believe that even