good morning i'm kathleen kennedy i'm here with the jefferson county district attorney's office we're here to decide whether or not commissioner senegal is entitle to qualified immunity based on his secretary's claims that he terminated her involvement of her first amendment rights in looking at the plaintiffs foursome in a complaint as well as her deposition testimony it looks like she is claiming two types of speech one is the actual running for office and two is for making critical statements against the person she was running against a states polk exercise protected speech when she spoke out against galen and opposed him for the office in which he was an incumbent now whether or not have the right to run for office as she has alleged was a clearly established right was not establish until after she was terminated i'm sorry ma'am but that doesn't impress me i mean for employees were governed by guards shadi and guards said he talks about what anything that's related to the employee's duties and when the person is given leave permission to hold down her job and to run for public office that she's engaging in political activity and therefore it protected well in this case in this court that is that's one of those things i'm very as most people probably figure out i'm very reticent to say what clearly established law is running for public office seems to me quintessential political so clearly established that it's not debatable well the political activities that she would be engaged in such as poll public speaking or what her platform is and what her campaign is against gala would be one thing but she's never correlated any of that to the reason that she was terminated that's right so and i would cite for if she's arguing that she was terminated solely for running for office how did that relate to her band terminated now for for her to assert that she was terminated because she ran for office the district court claimed that that was a fact issue but it's not a fact issue when there's no evidence in the case of jordan v actor county the argument that the city provided was that there was no evidence that this court said this is not a case where the only evidence is a sequence of events or plaintiffs a subjective beliefs which is exactly what we have here if you read her deposition in you and you look at her first minute complaint she just goes through what transpired when she told her synagogue that she was announc holder and i want to run for office and i want to hold my job while i run for office although if i get elected to it i no longer will have a job my question  aide commissioner senegal sister is married to mr polk's cousin and her testimony is they're like family so there's a little bit of a different relationship and the testimony has been that they went to h r to make sure that she followed the county policy that you cannot campaign on time to protect her and to make sure everything was fine so he didn't terminate her or say you need to leave because you're running for office there's no policy like that but at the same time she hasn't shown where synagog or her testimony was senegal didn't go to any of her campaign speeches they didn't talk about her campaign in the office everything was just business like in the office she makes no so i think that's going to the argument of pretext it also will it would also pretext and causation and motivation and so well because they had that family like for lation ship he did not write down everything about her he knew this woman and so he counseled her whenever there were things that were wrong he talked to her they had office meetings and he did everything orally he didn't write it down there's no county what happened something happened in the family like relations no it was basically her performance there he was getting phone calls from constituents and other employees very that she was being rude or though even if that happened he just he would talk but he would make it you know your position is it was occurring before he just never reduced it right that's correct but then something happened and he decided to do that to do to reduce it to right what he  well if we get to pretext that's what his argument is because he reduced it after she was terminated that it was pretextual and that shows motivation but you can't just argue pretext and just writing something down after the fact wouldn't make it pretextual because had he never written it down and then she filed this lawsuit and he wrote all those reasons down in an answer to an iran atory you know it seems to me hard to rebut what judge crone disposed of this from one paragraph and it has to do with this dispute revolves around whether pokes exercise of her right was a motivating factor in her terminations and on one side you have the fact that occurs right after he had run for office and established and i have to cite the case of james first texas calling county which is in two thousand and eight in two thousand and eight this court said it is unclear whether first amendment provides a right to run for public office that extends to government employees so at the time that this occurrence thing  with this because the fact is for vos told are fine go run for public office frightened to go do everything and put her allegations are that she was terminated for running so if he says go run and then she comes back and says w terminated because i ran for public office and what is her how does she connected motivation it's a matter of law there can be no such motivation under this circumstance you're not had told her no then there would have been then you couldn't say that was retaliation big or not clearly established law because of james he told her yes and therefore you're saying that can't be the basis for a tal but her basis for retaliation is that he reduced it to writing after she was terminated because there's no there's no comments that he made there's no outward negative conduct that he did to her i mean a perfect example of pretext and motivation is running he there was only once that most if not all of the conversation that she lists were very positive i'm glad you're running you'll be great you used to work in that office you need to make sure you get your campaign staff together he was very supportive and there was one comment where he says he's going around telling everyone i put you up to run and you don't know what position you put me in but there's not really any context of what that means it could mean there's five people running for this justice of the peace spotify people so it's misspoke and three other people he might have been supporting someone else and now everyone thinks he's supporting her there's no telling what that statement means because there's really no context to put it in but if you look at them it doesn't sound good but to have one statement like that that could mean almost anything it's were assuming that it means something bad but for her to establish a pretext which is pretty much what all her briefing is in this case a perfect example is this court in click the copeland were two sheriff's deputies decided to announce their candidacy against their their boss the sh the time they announced he transferred those two law enforcement deputies over to the jail and they said why are you transfer to server here and they he said because we have a shortage of personnel in the jail but funny at the same time he transfers five people out of the jail into law enforcement and then shortly after that he tells click as soon as the primaries are over i'm going to fire the hell out of you and then a little time later he sends four more people out of the jail over into law enforcement so his reason for term of art for transferring him was for a jail shortage of personnel but yet he transferred nine people out this court basically said you know that that's not the real reason and i cited that there's a seventh circuit that basically came right out and said pretext is a phony excuse you have to show a phony excuse we don't have that here and in fact this court in jordan be actor just a sequence of events and her believe doesn't need to be there and that's exactly what she has is her belief of why she was terminated and her testimony was questioned you don't believe the cynical terminated you for not giving him his memos or message and typing is that correct her answer quote no i don't i believe it was all behind the election question what do you mean by that answer the previous conversation that he and i had about when he said you don't know what type of position you're putting me and that led me to believe that he's afraid of guillem gillum can be a bully and i just think finagle was afraid of him and that set a record on appeal seven seven four to seven seven five and so then i asked her so even if you lost the election lost the recount you still felt synagogue believe you were a problem i believe and what would you lead you to believe that quote i was a threat i was a threat he probably thought i was going after his job so she has a believe that everything was behind her running for office but there's nothing there's no comments other than that one that we put just pointed out there is no negative treatment she doesn't show that he treated her any differently than the other secretary there's nothing but a subjective belief and a chronological citation of what happened and in this case a as this court said in jordan the actor that's not enough this court also held james to be texas calling county that there's no evidence that he was terminated because he ran for office even though there were things about his running it came down to more of a policy about mission which we don't have here so under a pretext she has to go through and basically rebut each discrete reason proffered by the employer she doesn't do that she doesn't discount them she may disagree with kind of how it went down but she doesn't come back with a phony excuse a lot of this criticism of her work is pretty subjective and of the words she made the constituents man well maybe the constituents were angry people to begin with you know i mean if you're not counsel to at the very time of an event like that it's real hard to say in retro to come back in retrospect and say obviously he's hurting my position my constituents but there was counseling there was and i kind of had to keep going back to it wasn't clearly established but to be rude but your road lights on growth so which of those parts do you believe if if if i am not mistaken you can't weigh in on any of them the fact is that at the trial court mr commissioner senegal did not dispute that there was an exercise of protected speech he did not dispute that there was an adverse side he did not dispute that the exercise of the speech outweighed his right to efficiency the only thing that he disputed was causation when when the judge wrote her memorandum opinion  suppose that if there had been a a bonafide error of mr senegal and not having contested something that he should have he could have followed motion for new trial and attached evidence but he didn't do that either so so here we are cynical for office opposing gillum and criticizing them she mentioned those three things as being issues and those were what my client did she chose to run for office opposing tom gillum i think you've been pretty clean you know that clean argument your own personal image when you're talking about or speaking out against the action being taken against her for expressing her views with regard to some other hold as we pointed out it was a congratulatory we know what a pain golem is a lot it got it up then then we know that he comes back later he said hoops he's saying i'm put you up to now he said but you're going to have to follow the rules of the county if you do which means you can't campaign won't own own company time and you can't campaign on company property and she says fine i'll handle it on all the time and i'll do it like the supposed to be done we know that at the beginning by the way that some are somewhere in there that the human resources director carrier action told the commissioner by the way you you and this is when the the re framing of couldn't because she was going to run for office protected right so so i had to but i had to lay off well interestingly enough there are no memos no conversations family stuff had nothing to do with she was there five m it may have been out of it that's i don't but it's not now startling that would not be if if that were his motivation that would not be retaliation for political speak well frankly i'm not sure that that was ever ever been enough that's not the issue what was the issue was that she was challenging her terminations and once and he said i ask him except for her having checked in effect challenge i'm put in that not a box chat challenge that's that's a but for that comes around at the end all of this is you don't have to with all due respect jurisdiction to hear this at this time judge crone got it right judge crumb said  look you didn't shout you didn't contest the free speech then they're doing it now they're trying to reframe that law now that you didn't challenge the adverse action then and you didn't challenge all this other stuff let me ask you i think it's kind of these main argument and significant argument here is that all she stated was a subjective belief that this was retaliation for things connected with her attempt at political office merely her subjective belief because the only affirmative statement is the one you're making trouble for me is history fact issue about motivation his motivation which is a cause a scene issue right and what is your evidence that he was motivated by retaliation for her run for office well you can look at the fact that first of all there was there was no criticism for david the performance she claims to there was an alteration post lawsuit of evidence number three that there was a a digging up of supportive reasons from his employees and but it's all after the fact for sure but but can we transform that into retaliate and be because she was of the way she was running for office and seeking the recount and all that with all due respect in the in the five decades that up plus i've been practicing wall nearly five decades i've been a fish court object to bullying i think that if you take all of these circumstances put them together shake them up press them hard they come out one way he may have had if you look at the cross waterhouse he may have justification for claiming he had justification in two thousand and twelve but when two thousand and fourteen rolled around whatever his home in two thousand and twelve it had been an exercise done documented and none talked about that didn't necessarily mean that he had in two thousand and fourteen a good motive or have to have a mixed motive i have to have a little bit of both and he relies on the wrong one and that's for a jury to sort out what he did that i mean you couldn't so the only evidence that he was motivated by retaliation for political activity is his was there there was the senegal was he had his own he wanted rid of gillam the question is after after he after my client ran for office and laws are looked like she was going to lose probably he decided that maybe that he ought to be more practical and go with them with the winning team the the whole fact is that there is a sorting out of this process and the what i just can't understand why an up and up at five sounded amazed in my brief and disbelieving the court decides whether or not there's free speech there never there never had motivating them out healthy test that always goes to the jury the judge pointed that out and this court has historically for a long line of cases with we don't have that jurisdiction most recent  roberts a two thousand and seventeen decision but just proud of and we shouldn't be here this is a waste of your time my client's money and and i enjoy it but we don't i think you can decide whether or not there are the pots that show that when when you apply as she did the the the law to what it would have been for with the deposition testimony so if he hadn't have answered the e e o c with with what occurred then i guess the e e o c could have brought a lawsuit against commissioner senegal so he had to do that in order to answer and i guess if he's kind of it's a pretext to answer that then is synagogue actually being punished for answering an ego see charge touched a little bit about judge again and commissioner senegal's relationship they did not like each other at all i can make the argument that her running for office and him hoping that she won but of probably killed two birds with one stone as she said he would have gotten rid of a bad employee and probably lost of an enemy as well in the process he was very hopeful that she would when i come back to what we talked about and judge jones i know you're not i'm impressed with this argument about  whether or not the right to run was a first amendment right most of those cases deal with when you have a rivalry between the person who terminated in the person who ran and we don't have that here so in two thousand and eight when this court said it's unclear and i know that there are other cases it could be an association case it could be the robbery type cases neither one of those we have in this case so you have all those cases but then you have this court sa versus texas calling county from two thousand and eight and then this court did address it again in phillips the city of dallas which i think might be where your question came this gentleman was for office and so it's a different it's a rabbit trail we don't need to go down and the issue really comes down whether or not a synagogue fired her because she ran for office or because she said something about gelling which we don't have exactly what she said against i would judge again we just had her consistory statement that she criticized him find that is free speech today in your campaign day or talk about your opponent and things like that i'm not disagreeing with that