department he had an unblemished record there was well regarded he was terminated from his employment in march of two thousand and sixteen that terminations occurred after he was interviewed on a television station kavi l y out fargo concerning a whistleblower report she did not make the whistle report read whistleblower report is he doesn't know who was involved in the whistleblower report the reason that he ended up being interviewed is because the t v report and the bar report concerning alleged misuse of county of a county jet ski didn't even involve the jamestown is the point about him not making the report in the record and the reason why i said that is because i know there's no proof that he made the report but i don't know that there's any proof that he didn't make the anonymizer part he denied it he denied making the report that's the only that would be the outcome i thought he said that the opposing counsel brief says i can say it was somebody that would be in fear of losing their job he was asked by the television reporter who do you think would make every port like this and he speculated well i suppose it would be someone who might be in fear of losing his job and i can say that i quote it right or wrong he can he said i can say that but he said he that means he knew no record is that he didn't know well there is no it's a strong inference it out it has really not proven but to to say to safe categorically that the record establishes that he didn't make the report i think is is exaggerating and all the others also checked facebook post photos like didn't appear on his alter ego facebook account are right and so doesn't that create a problem in terms of potential a inferring that he made the report i don't want to belabor this point because i don't know that it's important to the outcome i just want to be sure about the record at a minimum your honor what that reflects is that there's a fact dispute as to whether he knew who made the report or not and that if of course and this is comes of the court of summary judgment so of course all factual inferences must be taken  in favor him it must be construed drawn in favor of mr nagle the appellant but any rate we believe the record reflects that he didn't know who did the report made the report and he didn't do it himself but there are two primary issues before the court this morning one is the st amendment issue as to whether he was terminated for exercising a st amendment rights and a nd the nd primary issue is whether his by it whether he was deprived of due process of law because he was not given notice and an opportunity to respond to the charges that were leveled against him prior to his terminations that now the briefs were all filed the before a recent and bank decision in the in that morgan right oh you would you please distinguish morgan for me but in this case your honor if there is no the charges that ultimately led to the two that underlie the terminations of mr nagle started with a search for this whistleblower that's what they were searching for and that's what investigating he was subject he was he had an investigative interview and he and during that interview he asked what are the charges against me what am i being accused it what i supposed to respond to and they say were there no particular violations and another occasion he was to a well look in the rulebook you're charged with violating our rules and regulations well police department has twenty page rule book one hundred and fifty violations he was never told at all what he was suspected or accused of violat here to speak our active mr nagle did are always to be interviewed on the television station he he clearly established right was recognized by chief editor himself the chief said he got one hundred and fifty dollars complaints about what mr r what mr r na on the television station and the there was no verification of that no control confirmation that the chief said i told the people who are complaining that i can't do anything about this because it's a quote free speech issue so the chief himself recognize that there was a clearly established right for mr nagle to be interviewed on the television station so he turned around later in support of the termination of mr nagle none the less he was aware that there was a clearly established st amendment right because he said so himself called the police review board officer blin ski who was delegated to conduct the review board at that led to the terminations of mr nagle also said yes that's a very important issue it's a matter of public concern in the lastly the city administrator know your time and qualified immunity in response to judge locals question but the n s c in question here is where the speech was protected at all did it arise out of his position as a police officer and here you have him show up yes the the police station was in the background handcuffs that stance or the proposition that st a member direction doesn't apply doesn't apply if it's part of the job duties in this case the chief of police directed the reporter to go to talk to nagle this isn't the kind of case in the many of the typical whistle blower cases where the claimant himself or herself is the whistleblower mr nagle did not seek out the media he wasn't he did not try to delegate anybody in the police department or the sheriff's department they report or came to the police department and went to the police chief minister's chief editor and she said we have this issue here that's come up about this misuse of county property and then chief editor so i don't know anything about that why don't you go t existence to his job duties then it's unprotected and here you're making an argument that that the chief of police actually asked him to go out and conduct the interview which means it was it was almost certainly within his job duties and if my suit if i had a supervisor and they told me what to do that would that statement would oh the would would owe its existence to my job duties but the chief didn't tell him to do the interview the chief director the reporter and said why don't you go talk to mr nagle in fact the chief said i think that might be the union so the reporter kate came to ask mr new york at the time if he would talk about mr nagle took comp time took off his badge he wasn't in uniform i went outside the building and she the reporter on her initiative interviewed mr gave direction to an employer subordinate as you said your honor to go talk to somebody then they'd be acting at the direction of their supervisor and it could be then within the realm of the job duties it within the ambit of morgan or even gar said he but that's not what happened here and he is it to the cape kavi l y report identified mr nagle as a police officer but he didn't identify himself as a police officer he didn't come forward as in these other cases that i'm a police officer i want to talk to you about a whistle blowing matter an issue i'm bringing enough it was a reporter in the choice as to how to describe mr nagle there in a television station said he was at jamestown police to officer which he was but that wasn't what the story was about the story was about this alleged misuse of county property so mr nagle was not in any way as unlike the morgan case acting with it as a spokesperson for the police department or carrying our job duties or in any way relating this to his job at all the only way the only connection really was achieved the minister to go happen to be in the building at the time and the chief thought it was a for eternal order of police issue what about if we get past that you get a qualified immunity the pickering balancing test right so even if you prove that it's a protected i mean there's a lot of evidence in the record that this caused a lot of disruption between the city police office and the sheriff's department which was down the hall they would even work with mr nagle and i was in a disrupting the operations at both offices potentially so on or pickering bouncing doesn't it doesn't this doesn't don't they went under that you know because the sheriff was upset no question about very within moments after that television program was aired six o'clock news or two thousand and fifteen and his terminations was four months later there was no effort to suspend him or put him on investigative leave or administrative leave he conducted his job just as he had thought when i thought they were members of the sheriff's department and they did want to work with them and there was a joint investigative committee set up between the two offices to investigate his conduct there was there was investigate you're saying we just just ignore the sheriff's department because that wasn't his employer i didn't say just ignore it i'm saying there was no signal carefully avoided upset of the sheriff's department just said no one at the police department was upset but i did chief i did say that they said there was no disruption of the police duties and activities and functions that people in the sheriff's department upset nagel because he was on this television newscast that that heads these allegations he didn't make the allegation but that they were hot line report was about misuse of the share of equipment and the sheriff's department the sheriff was upset but the police department wasn't upset at all mr nagle continued his work there there was no effort to suspend him or put him on a leave of absence and in fact the on the investigator the preterist apartment didn't ban him from their their part of the building they were upset they said they wouldn't they didn't w buy the building but that didn't that didn't affect any of his and functions as a police officer doing his work with the jamestown police department his functions that we worry about in our many law enforcement cases func function of the department the law enforcement agency in the test is whether his employee whether it is disruption in the workplace of his employer there was well the evidence in the record though suggests the sheriff's department because they were a geographically proximate a had overlapping jurisdiction and they actually work together a lot and that this disrupted their the ability of the two departments to have some conclusion or statements made there is no there is not one single fact not one single piece of evidence not one single case not one single incident that reflects any disruption or just a conclusory statement this was disruptive because they were angry in fact the on the police officer who was a tasked with investigating this matter major johnson testified that he had a good working relationship with mr nagle at all times other officers disli and they had no problem working with mr nagle so there's nothing in the record that suggests that in any way or respect there was a disruption in the police in the functions of the police department which was where mr nagle work there was certainly some people who were upset in the sheriff's department they were grousing about it and they said they were upset and they may conclusory statements of disruption but any balancing test want to take into account the actual facts of the case which are devoid of any evidence that there was any impingement impairment of any duties of the police department nothing changed mr nagle kept working up to the very end which leads me to into the due process argument mr nagle was never told what the charges were against him he was never given an opportunity to respond in fact the away he found out he was terminated he opened his mail one day and got a letter from the mayor and his city administration and you're fired that how they told him beforehand at least differences that he had that what they were investigating was just discrediting th department which was an ethical code violation am i wrong about that they made general statements about ethics and code violations they didn't say what the code violation was what the ethical violation was that's just a general statement that the suffice under the the start of his interview he was investigating that tip yes that's what they were investigating but he didn't say that there was any violation by virtue of the tip in fact under the case law that was false and be pretty good inference whether he knew about the investigate i mean he was never told what the investigation was about he was never told that in fact the police review board that ultimately sustained recommended the terminations came up with a number of different reasons that mr nagle was never asked about the police review mr nagle was never told what the charges against him were and the case law in this jurisdiction and there's numerous cases the nd case the smut case the grown a world case and other case law indicates that some of that before termination  occurs for public sector employees they have to be given a minimal due process which means at a minimum they have to be given notice of the charges an opportunity respond mr nagle got none of those last point i'll make is on the question of qualified immunity even if there is qualified  constitutional issues at play one is the st amendment the other one is due process i'll start with the st amendment and i think the questions from the bench during mr cheney's presentation were directly on point first well he wasn't speaking a private citizen nd part of that is he wasn't speaking on a matter of public concern if you even go and look at his own statements he went there to clear his facebook name dominic brown you don't think though that if there was some sort of corruption if the if the sheriff's department was by jet skis and using it on weekends that would be a matter of public concern to the populace it absolutely would be a matter of public concern to the populace just as sexual harassment was considered a member of the subject of public concern to the populace but the comments made by the public official in that case which was cited in our brief related to personal animosity between that individual and in the leadership so we're looking at the point of his speech a speech was to admit that yes my name is dominick brim on facebook but allege i didn't send that picture indicated below i then he made a comment about whoever did send it was someone in fear of losing their job neither one of those issues are anything to do with public concern and they also are not some speaking in the status of a citizen for the st amendment but it's a test objective not subjective so that we don't look at maybe i'm wrong about this but don't look at necessarily only what he was thinking but whether the allegation true would be a matter of public concern i think that the court could consider it that way but when you're talking about whether the allegation was true whether the government was actually using necessarily just positive of the case but what we are looking at is what was his status when he was making the statement he's identified as a gemstone police officer in the video that's pretty indicative and the district court again hit the nail right on the head with that what about the actions he took ahead of time so he takes his badge off he takes a make sure that the police station isn't the background and i understand there's all these other indicia but he did try to remove some of the  the signals that he was a police officer before conducting the interview i would agree with the fact that he tried to remove some of the signals because of jamestown police officers he very readily admitted that he was speaking as a member of the law on that issue which gets back to the pickering test even if we were to say that you were speaking as a citizen and he was speaking on a matter of public concern we still get to the picture interest and when we look at the title vs city of which is cited extensively in our brief this court has previously noted that law enforcement is given substantial deference when they make decisions that are supposed to promote the efficiency of their of their  i believe is probably the case that was was being referenced earlier this quote so that if the employer a duces overton's of destruction qualified immunity applies well we have substantial evidence that was a deuced in the record in this case th substantial strain on an mia it was a it was very clearly caused a rift between the two organizations plus there was a joint internal investigation that pretty much everybody in both the gemstone police department and the dozen county sheriff's office were subjected to a took up a lot of time and effort from both of these law enforcement agencies which commonly relied on working with each other to only protect the public but they relate to other to save their lives relationship is vital and this court has recognized that police departments sheriff's departments need each other they have overlapping jurisdictions they need each other and when the conduct can damage that relationship the tie goes to the department and that's exactly what we have here so we don't have the district court got it hit the nail right on the head wasn't speaking as a citizen wasn't speaking on a matter of public concern and even if so all of the pickering factors play in favor of the of the city of we look at the preacher emanation the post rumination process and we don't look at them in a vacuum we see did this person receive do process did they receive adequate due process now there's no question that tom nagel was confronted with the evidence against him respond the three allied on was conducted by an investigator in a in a a local government situation where the process would ultimately proceed a number of more steps alluded to in our brief i believe one of them the state court is from from washington the name of the case escapes me right now but it does talk about how there was an internal investigation where the charges were brought before the individual and as far as additional steps you go prior to the termination from i understand your question correctly if the city council ultimately makes the decision that no they don't and that's one of the other parts of those that's actually fatal to their claim as far as municipal liability  final decision making authority with respect to terminations of employment is given to the city administrator the mayor also signed the terminations letter in this case but the city council never made a decision on time heals employment the city council is the policy makers so why doesn't why doesn't the the predict pre term a nation process obligation a lie with the administrator i don't believe posed to it a and independent investigator operating at the request of two agencies with no with no with with with it on known where it would work would lead i think this much to case actually speaks directly to  that that was an investigation that was conducted not by the ultimate decision maker there was a board that was the decision maker there but there was an investigation that was that was conducted in that case so i think the answer your question is yes but we're looking at the brief the indispensable elements of due process were clearly satisfied in this case and there's nothing to the contrary that was one woman a qualified immunity  that's for sure and we've never even made the allegation that the city's intel the qualified immunity that's well established you know liability to municipalities is governed by an l and that's policy or custom it's also the city of minneapolis case that we cited extensively in our brief court gets into the exact analogy that happened here where we have a governing board that sets the policy but decision making authority with respect to hiring and firing is is and in that case they use the sheriff as the example here would be the city administrator and even if the decision was ultimately deemed unconstitutional there's still a liability on the city because the city is the final policy maker and they did make a decision which is exactly what we have here but this court doesn't even need to get there in this case there was no violation of the st amendment there was no violation of the th amendment now the other issue that was briefed is mr nichols requesting the court to impose a state law cause of action and the district court dismissed that portion of their claim without prejudice the north dakota supreme court the last time they addressed that issue specifically was the christianson view stranded in case  where they recognize that there is no private cause of action for damages vindicating rights under the north dakota constitution unlike federal law which require congress and act in section one thousand nine hundred and three north dakota does not have a corresponding statute that doesn't exist mr nadler hasn't pointed to any he's merely asking the federal judiciary to step in and create a state law cause of action when north dakota the legislature in the north dakota supreme court have both declined to do so to date and the same issue was only decided by the north dakota district federal district court north dakota in the standard is what you said it in our brief where they basically just disposed of that argument and said we're not taking the extraordinary step as a federal court of imposing a state law right under the constitution so there's no further questions i will respectfully ask the court to affirm the holding of the district court thank you  the employee has to be given some kind of indication of what he's being accused of in the cases that we talked about in our in our brief cited in our brief indicate that there is in many cases a list of charges against the individual or some kind of specification of what the charges were not so here furthermore there has to be some opportunity to have a addressed the supervisor or the decision maker that didn't happen here mr fuchs and the mayor who made that determination decision never had a loud mr unable to know what the charges were i think that's been well briefed in the last point i would make is on the  the city can't have a shield itself from liability here simply because the council did make a decision the city administrator and the mayor acted on behalf of the city the terminator was made by the city and therefore the claims are arise against the city as well thank you thank you