good morning your honors my name is daniel r molinsky i represent america county and chief deputy david a hander shot for the balance of my comments and incidentally i would like to reserve five minutes i will refer to my clients collectively as the defendants or i will further them by name i think this case must be reviewed and considered by this panel in light of the fact and the as the evidence showed this case involves a detention officer who knowingly violated a clear and well established policy of the sheriff's office not to disclose official confidential point eleven this is a policy and it's a very general broad policy adopted by the sheriff's office for many years certainly during grb aires entire employment in fact he was educated in this policy while he attended the police academy and the sheriff's office selected rather the record shows that there are hundreds of documents that process through the sheriff's office instead of adopting many different policies to address these hundreds of different types of documents that the sheriff's office has to deal with the sheriff's office instead opted for a very broad policy that made confidential all official information or documents that a sheriff's office employee such as a detention officer might have access to in the course of his official duties to you so the clear policy you're referring to really is not restricted at all to the release of confidential medical information well certainly the as the district court found the inmates to call rosters which burberry took in violation of this policy were in fact prescribed is confidential medical records under arizona law so certainly that is true but the specific policy judge lecture while i'm looking for that if i could complete the thought as to how i believe this court must consider this case again we have this violation of this very broad and clear policy disclosing shows that as the investor internal affairs investigators conducted their investigation they determined they were told by people they were interviewed both the other inmates medical escort officer officer walters w interviewed and then also a correctional health services nurse who they interviewed i believe her name was want to look point both of them told the investigating officers in fact these rosters were treated as confidential and they were disposed of or shredded at the end of the official information provided to him to perform his official duties so again he understood based on this well established policy that he was not permitted to your pardon if i may just get  nfusion as i look at the district courts determination the court makes a point of finding that the disclosures including the sec call rosters were made in a reasonable matter under that statute well i believe that's clear your honor because that's finding by the district court is of course internally inconsistent with the court's finding again that the record at one twenty six if you go to paragraph thirty three the district  court again found that good varies disclosures were made in a reasonable manner but then again if you go back to paragraph fourteen of the very same order the district court determined that these rosters again included confidential medical information and were there fore medical records prescribed as confidential by law therefore attention works both ways why doesn't that lead us to say because the office did not treat them as confidential you know we all signed these forms every time we go to the doctor's office which i don't think anybody reads anymore so we know that there's a lot of legal protections out there but no sense given as i read the district court's findings that that people really thought these were confidential these weren't the keys to the kingdom and having said that they weren't treated as confidential that the plaintiffs didn't have reason to think they were particularly confidential and that the disclosure were made in a reasonable manner under the statute and then we get to a conclusion that says body was going to be terminated anyway and that doesn't violate the statute and there seems to be some real tension here and it can go either way the un completely or or plain ignorance completely but i have some trouble understanding how these get reconciled well your honor again i think with respect to  i think again we do know the defendants do disagree with the district court fighting with respect to other sheriff's office employees not treating these records as confidential but if you put that to one side needed that he knew and well understood that broad policy program prohibiting him from disclosing official information to others outside the apartment except under certain circumstances not  permitted to disclose confidential medical know that you know others something in a whistleblower context so i'm at the more general level i tried to be specific i'm now not talking about whether or not these are official medical records i'm really talking about the official records not containing medical information and you're saying that he knew full well irrespective of whether or not there was medical information that he was forbidden to reveal them that's right and i'm saying that i read the district court judge to have held quite the opposite that he was protected in so doing under arizona statute so long as he disclosed them in a reasonable way and that degree in other words the saros office regulation has to give way to the arizona statute i see what you're saying your h law my guess is it's federal law sure millicent she doesn't say she says by law so again we have the law i believe that statutory whether it's federal arizona prohibiting the disclosure of these medical records versus another law that says you can make a reasonable disclosure and not be terminated as a result but again because good very disclose the medical records of other people of these inmates without permission disclosure the record shows for example in december of one thousand ninety eight good very wrote a detailed letter to the sheriff complaining of these very issues that he was concerned about when he did not get satisfaction from the records he violated the inmates medical privacy your right to privacy in their medical records in violation of arizona statute and then he lied about it repeatedly and not just at the initial interview but throughout the investigation process and even at the time of his pretend premonition hearing good barry was still not telling the truth i think this case has to be reviewed in that context of like reserve the remainder of my time if i  if possible as you're sitting down if you could find me a copy of this very clear policy so i can read it i would appreciate it and your was not in these records well then we'll deal with it some other way ok thank you thank your hono chris our principal issue here is ninety three issue in what we perceive to be on this application of the now healthy standard when the court court found that there's a qualified no qualified immunity other disclosures were substantial basis for terminations and then went on to find that he had been fired anyway that was our problem from our perspective we've got one group of conduct and it's not the show all that doesn't mean even though it was a substantial factor in the terminations and there was a i would've done it anyway the i would have done it anyway not healthy though  initial portion of the investigation he's brought in under an ira advised of his rights and for the first half hour or so denies any involvement takes a break calls the county attorney his own attorney comes back in and says guys i got a complaint this is what i did that i've read the transcript and i think that's an extremely generous description of what he did it was a line but never mind that right we've got a fact finding that the district court that he would have been terminated anyway why is that finding clearly erroneous well the would have been terminated anyway i think the court's basis was the disclosure to the father ultimately that's what it is because the the other two disclosures the county attorney testified he was a proper person to see this information and he also testified the board of supervisors were the proper parties to see this so we're left with the father father's the conduit i mean at that point has taken these documents which are simply lists of when they it's with a little bit of medical information on them he sits with his father they make packets they put the packets together and dad delivers them to the supervisors and to the county attorney and dad sends one to the newspaper what we've got is mr gurr barry christmas the club my client did not know and i think that's a funny way the judge that his dad is going to send this to the newspaper so you've been punished it's he's used his father who is a secretary of i think what we're looking at is well to go back to the judge's findings chris did no real no understanding that this was a confidential medical record understand that so he comes in he said to his father this isn't a review a medical record these are again putting together packets then you're stupid enough to ask for them ok the end and in today's world sort of hard to believe that anybody would think that medical records are confidential they have inmates who need to go to sick call or what they do is they point out a list of inmates and they say go get these people and for some of the on the edge of this document is listed a medical condition some of them are serious once the other said runny nose they didn't all have medical conditions that wasn't gerber he was interested in what he was interested in was the date to the right of that said how long this person had been in custody before receiving initial medical care that's relevant information from gerber standpoint but you didn't white out the description of the condition did not he did not you here's my problem i mean i've got problems with both sides of this case i have to say here's my problem with your side of the case  in a sense it seems pretty sort of way sounds kind of innocent he's going to was there for advice but there isn't entitled to get the documents in the same way for example the county attorney  huge problem we've caused potential liability for everyone the fact the matter is they didn't even know this is the trial testimony they didn't warn the newspaper they didn't try to collect these documents back in the newspaper they didn't go back to the council people to go get them from them i this case you got yourself a factual finding by the district judge that mr henderson would have done there was simply because he gave it to the father and know there are very unhappy because he's embarrassed the sheriff's department and that they're just looking for a little skillet and this is the excuse but that's not what the district judge found no it's not the the our view is he's com father simply a conduit of course it's pretty simple potentially wrong to disclose to the father what he's doing with his father simply putting packets together it's i mean it's natural underpinning of this thing it wasn't they have look at these documents dad took a packet and gave talk to you a minute about the arizona statutory child issue it looks to me like well first of all the arizona statute doesn't have any analysis built into a right there's no arizona case on point so possibly the issue could be certified but beyond that arizona previously and today seems to follow in general federal law most federal law in retaliation case incorporates the now healthy analysis and now healthy makes it very clear that once the district court has determined that there was a substantial that the protected ground was the substantial reason for the terminations the district court must go on to determine whether the defendant would have done it anyway and the district court it seems to me under the arizona statute side st short of the third step it just said it was a substantial reason but we know what the district court thinks about that because on the one nine hundred eighty three side it found that the seven retaliation do you mean do we get that last shot of the apple saying we would have done it otherwise that's the question here when the court the court's analysis comes through she starts with the court stops when the court sort of ends this in the the award in the end by reinstating him to the date of the judgment which in fact was no reinstatement whatsoever and he doesn't get his job back which is kind of a unique way of dealing with this issue so i don't know what the court  her ruling was now he was not reinstated his position because of the her analysis under nine hundred eighty three well he might have been fired anyway and he released it to his dad he's only reinstated we i think there's a motion for clarification in the record that was the first thing we filed and it took a long time to get that resolved and when we got the ruling from the court we still didn't understand think speaking for counsel and we went back and had a motion for a status conference and it was after the first notice of appeal been filed and we were able to get in front of her and there was a record november two thousand and four record of what and why it meant in this case going back to judge reimers question and if we don't have arizona guidance given that there is arizona case law in related fields suggesting that arizona looks to federal laws or reason not to look to federal  whole lot of other issues in it as opposed to simply being a retaliation by statute i'm not puzzling over this sometimes oral argument use when it will point to me with why i have not fully understood the case trauma nation everything up and that makes perfect sense but if in fact they violated it makes no sense whatsoever that he should not be truly reinstated but i don't i don't get it well and  defendants will go on at length about he was a liar he was a liar he was a liar fundamentally yes he lied for a brief period and came clean he may be charitable from my perspective but ultimately that's what the court found we went through a lot of testimony on this issue  although she found yes there is another reason from our perspective it's all tied into the one issue it all relates to the one transaction which is whistleblowing activity you know he delivers the documents to dad and so to that as dad takes it to both the county attorney and to the supervisors that's ok but when dad unknowing my client doesn't know about the liver to the newspaper that suddenly is grounds for termination and from our perspective it's all if it's ok for to do two things and do something that we couldn't foresee or didn't know about certainly our client mr burberry that should be held against me should not be dismissed on that basis very briefly your honour's this is not a whistleblower case arizona has a whistleblower statute the district court granted the defendant summary judgment on that that judgment was not appealed from turning back to the arizona statute that is  and you can find it and i will read it in the record if the court would like but it's in the is not already in the record it is ok in fact it's in the defendant's third appeal brief at page nine the policy says much of the official business of the office page nine the red line your honor and again it states much of the official business of the office is confidential employees shall only discuss or disclose official information as follows one is required by law to do with persons authorized to receive the information and three as directed by a supervisor good very street receive training in this policy which had been in existence throughout his entire employment by the sheriff's office now does the always on the statute trump this provision this policy yes but does the arizona statute issue trump other air zona statutes the question came up during my initial remarks whether the district court's ruling that the inmate medical records  statute that prohibits the firing of an employee who makes a reasonable disclosure and then we have a another arizona statute that prohibits the disclosure of inmate caldwell confidential medical records which included as the district court correctly found these inmates they call rosters so again you can make under the statute issue you can make a reasonable disclosure but reasonable does not include violating other arizona law and that's what given that he does not have a job and given that there were no damages awarded as a result of the district courts finding a violation of the arizona statutes what's realistically a state from your standpoint well your honor first of all first and foremost  concern is terminating an officer who admittedly lied repeatedly who violated well established well known policy of the sheriff's office breaking the law in the process that is value the statute prohibit the disclosure of confidential medical information doing these things which the defendants assert was entirely proper under these circumstances and then being held by the district court to have violated  arizona statute twenty three fifteen zero one at issue that's the concern the defendants have you know a proper term a nation decision made for the proper reasons yet still being found we believe in the sheriff's office cannot discipline and that includes terminations officers who lie the sheriff's office and for that matter police agencies throughout the circuit difficult but if you win here i think you're going to win on that ground that you're going to win on the ground that mount healthy applies and you're going to get to you're going to get transferred into the state state cause of action that he would have done it you would've been fired anyway for revealing the information to the father i think that's right but i wanted to answer mine is not and you're not going to get out from under that part of the case that's neither here nor there i agree but i wanted to answer judge clifton's question as to why are we appeal and that is why i'd be glad to speak to the issue of reinstatement if you'd like to entertain a minute or two of that i don't think so i thank