morning mike thank ounces or accommodating our suggestion that we hold this in philadelphia i hope it didn't inconvenience council too much but it was tough getting hotel rooms on your honor's my name is deborah simon and i represent appellants commissioner lackawanna county commissioner cory o'brien and now former commissioner michael wash i'd like to reserve five minutes for above i think thank you should the court consider this appeal this court and stevens versus delaware county interpreted the holding in mitchell versus as allowing courts of appeal to review in water denying summary judgment on the munity grounds when the question to be decided is a purely legal one and stevens the court stated that it does not lose its  appellate jurisdiction merely because the district court identifies issues the fact and held that it has jurisdiction to review the denial of an immunity defense at the summary judgment stage under the collateral order rule to the extent that the not the denial turns on questions of the law mitchell identifies two principles of immunity defense serve counsel here we do have issue of law don't we i mean the facts are pretty clear in the record and the record is pretty clear as to what it is yes i would agree with so i'm wondering whether you should reserve for rebuttal the discussion of this issue to see if if you're posing coun this case arises from changes in the government structure of personnel that occur after an election in which the voters overwhelmingly rejected the leadership of incumbents to other courts have looked at the changes at issue here and how they affected the structure of lackawanna county office of public defender although we really don't have much reasoning from those other two cases and i'm not sure what's really in the record to show that the procedures that are to be followed under the home rule charter were followed here we are in the record is there  evidence regarding the procedures that were followed and i guess i really refer to what i see as the home rule charters requirements that there is they have ten salary board approval for changing his salary to zero published a summary of the budget that eliminated his position in a newspaper held hearings on the budget and adopted the budget as it at a different meeting and the one which was introduced to my mind those those things are required but i'm wondering where on the record immunity but matters that are preparatory to the introduction and passage of legislation are encompassed within legislative immunity and well then what does the proceed what does the procedurally i mean substantively and then proceed what does the procedurally i mean you have to show well one of the procedures at issue here is the appointment of a transition team the charter specifically allows for that in the provision that as part of it eight of its legislative function allows the elected officials to appoint a to conduct an investigation or to solicit the assistance of consultants which is what they did here the  transition team which was formulated with attorneys including the former chief public defender conducted an investigation consulted with jurists in the local courts who w three zero two powers and duties under subsection g in eight of its legislative powers and functions to make or cause to be made as a body or through a committee there of such studies of audits inquiries and investigations relating to the affairs of the county and then if you go down a little further and a connection there with to obtain professional and technical advice it's our contention that it is perfectly appropriate in aid of legislative powers to have experts provide recommendations that will assist in the formulation of legislation i don't think we are denying that that's true in aid of legislation but what we are concerned with is the legislative activity that resulted in the elimination of his position or the restructure or whatever and so the focus really shifts from before to ok what was happening january twenty eighth january thirtieth did they get salary board approval was his position eliminated versus was he fired so i think with the focus shifts now i have a question if the budget was approved on the thirtieth and yet he was fired on the twenty  eighth doesn't that present a problem in terms of whether he was let go pursuant to a budgetary legislative action that would be correct if the budget weren't formulated in advance of that which i think the record shows that as of the thirteenth the restructuring of the office was in a concrete form where where was that show that we would be in this ironing time hiring position eliminated position eliminated and yet when it gets to his you have another name above his and his name it doesn't say position eliminated i'm looking at appendix six ten so how does that chart show us that the budget that is being proposed you know eliminates his position versus you know he's doing well if you if you go back to the recommendations transition team which are the number of full time positions the number of part time positions that they recommended to change the structure from what they had before which was part timers who pursuant to complaints from the court were never available to be found the isn't a temporal problem here saying it was almost done but what but but it was already executed before sort of the law which might be a rubber stamp i don't know but nonetheless a budget was approved of after not a problem i don't think it's a problem because we're not here seeking legislative immunity as to any decision specific to mr callan asking we're here seeking legislative immunity that allows my clients to restructure the office to propose a new budget that changes the structure of the office in terms of how the funding is allocated the hiring chart shows the funding and its allocations and that structure was voted on and approved when the budget was adopted the documents mr caroms notes that show the breakdown of how the salaries were to be allocated in the hiring chart and the final budget all have the same numbers what we are seeking legislative immunity for is that process the the recommendations the adoption of those recommendations which are put into the hiring chart and the adoption of the final budget is a legislative act that that is what we're talking about there the this report said that you didn't specify a specific statutory procedure  departments does not say how that authority is to be exercised in this case it was exercised by proposing a structure and putting the structure in the budget and approving the budget which embodies the structure the court the district court did not look to the part of the charter that deals with the the budget itself and how the budget is to be constructed which itself says that it is to specify each position in a department and that is how the budget is constructed and then voted on and approved and i see that do you agree that there are some procedures required under the home rule charter as to which we have no evidence in the record such as getting salary board approval for changing salary publishing a summary of the budget a newspaper holding hearings on the budget and adopting the budget at a meeting different from the one in which it was introduced well is there any evidence of that in the this this is a somewhat of a hybrid procedure in that there was a budget that was approved by the previous commissioners because under the under the home rule charter that's all supposed to be done in december when there's an election there is the opportunity to amend the budget and with with a new incoming commissioners change the budgetary priorities that has to be done by february one according to the charter if it is not done by then then the previous budget takes the fact i think to you my question is to those specific things i used you agree that they needed to be done and is there any evidence in the record that they were done i don't agree that they need salaries board approval they only need it to establish salaries and wages under the charter if it is a new salary or a new position once the money is in the budget the commissioners have the discretion to reorganize as the as the charter recognizes the department maybe that's what judgeship you know needed to understand better what the made by mr washoe and o'brian to terminate mr callan asked his county employment and to replace him with joe mcgraw that decision is reflected in the document that judgment they'll mention this hiring chart which is attached to an e mail which is dated january thirteenth seventeen days before the budget was ever passed during the district court summary judgment proceedings there was virtually no argument and no facts about this executive decision being part of the budget process or being related to some home rule david transition team cross it was or was there any evidence about the need to restructure reorganize the office of the public defender and and the need to make budgetary decisions with respect to that program there was your honor and but the evidence the evidence was presented in the context of trying to show that there was a nondiscriminatory intent not in the context of legislative immunity so then the what the evidence showed your honor was that the transition team i'm december thirteenth december thirteenth that's before mr o'brien was even an elected official he wouldn't be sworn in until was and it that the context was there's an e mail which is part of the record that on december thirteenth the transition team reckon recommended a reorganization of the office now that reorganization of the office your honor was budget neutral ok the the evidence is that commissioners that commissioner elect what o'brien and commissioner washoe immediately accepted that recommendation and so the transition teams recommendation was to restructure the it office in mid december accepted by defendants and now defendants go forward with the administrative and executive task of deciding which people are going to go into those various jobs that were part of the accepted restructuring why doesn't it you know with looking at these that these cases baracoa and versus mcgreevey and a monte versus long beach and it because the study process your honor didn't have anything to do with whether mr callan ossie was going to retain a job in the restructured agency as a matter of fact the testimony is very clear that the transition team although it made a restructuring recommendation in mid december which was except that it never made any it never made any recommendation that particular people should be fired or retained and so the decision to send didn't it when it came up with the hiring chart that shared mcgraw would be any telling us he would be out the hiring chart was created by cory o'brien that was not created by the transition team you know ok the evidence is very clear in fact mr carom that share person of the transition team testified under oath that is that position that they didn't recommend who should or should not get positions within the restructured and it's which is don't don't look at the motive you look at the nature of the act and don't look at why somebody is is not hired a retard so what's your response bogut again was was was similar to the poet laureate case in that the the actual act the that act of eliminating the position was a legislative act passed by the legislature up until the moment of that legislative vacuum and i'm sorry if my point is you're asking us to look at why current ascii was not rehired in the in your point is that he was rehired because he didn't support he's a republican who can support the incoming maybe i misunderstood the court's questions is is is is relevant to the substantive first amendment claim very relevant it's the essence of the clay as for what we're here for today legislative immunity plate of certainly agrees with your honor that motive is irrelevant my point your honor is that bogun is distinguishable not because of motive bogan is distinguishable because the challenge jack was itself a legislative act of through proper legislative procedures eliminating the position up until the elimination of that position through legislative procedures mr bogut had a job just as mr bokaro the poet laureate had a job received this terminations letter on january twenty eighth what do you mean by legislation the legislation in this case are the only legislation in this case is the january thirtieth passage of the county budget that while there is only what the legislators have to an executive procedure made by county commissioners who are making an executive decision to fire someone about the state restructurings this is happening in the context of a restructured department but nonetheless even within the context of that restructured government some people kept their jobs some people lost their jobs that's what happens when you restructure some people keep them some people don't i agree with your honor that that i would have just t the decision to restructure the public defender's office was made in december choreo brian was not even a government official at that time there's no there's there's no no no no of hallmarks of legislation this is a transition team who a transition a transition team cannot be deemed to be to exercise legislative power i guess it suppose because that that's the basis for the current us cannot be hired study of the transition to it's not i would respectfully disagree with your honor the basis for the restructuring of the department was the transition team recommendation but beyond that with respect to all the personnel decisions that were made within the context of that restructuring agency those were purely executive decisions made by de o'brien washoe how do we cut how do we draw that line i mean january seventh they become the commissioner so they're acting in arguably our legislative passing but how do you say ok the restructure plan is a legislative activity but when you go down into the weeds and decide who who stays and who doesn't how do you say that the person is is let go in a matter that's not pursuant to the restructure plan i have to how do we how would we write that opinion to draw that line i don't think that the court has to draw the line because there's no as judge arguing that these things that i mentioned before needed to be done or or where they because of some amendment or the things she was talking about where they really are necessary the salary board approval and all those things needed to be done your honor none of those things there a gentleman named larry miller a man didn't have a position in county government and was their political advisor and a lawyer named john o'brien who was a campaign contributor into that room at that time they'd made the decision to terminate ascii mr o'brien's contemporaneous notes show that during that meeting people's political pedigrees were openly discussed that's when the decision was made you know in those meetings behind closed doors it's mean that's very often how with respect to non policy making official such as and such as an assistant public defender if the decision maker is motivated by a political discrimination and it's then it violates the first amendment and look judge becker i know when one of the decision writes a very elegant dissenting opinion saying hey is that really such a good idea but that is in fact the law so and i don't and i don't i don't tell the court about that meeting because motives are report and i agree with your honor that motives are important for legislative immunity not at this stage i think not at this stage certainly it's important with respect to the overall when we go to trial it's very important the reason i told the court about that meeting is because i think it demonstrates how informal and non legislative and non procedural this process was you know judge judgment oh reeled off some procedural requirements are there others let's hear arms around are there other things that they should have done that we've not touched on here not that i know of frankly your honor there really because we we have to look at what procedures are out there and whether they were met do we have them all the correct procedures there really  i i mean i think that the who are going to does really have a good point though i mean besides three fifty five what what would you go back in show judge computer to satisfy him that there's nothing and that's why that's why should they have shown to satisfy  says i'm not satisfied you didn't show me what should they have shown him there's enough your honor respectfully there's nothing to show him it's a it's a i mean it's not a law it's an executive decision that was made by county commissioners in an executive capacity but then you could never have a restructuring of government following a study by to terry study but was there's no procedure to let somebody go it's not i would i would resist i don't know that that's the case your honor i think that you could have first of all the restructuring of the government isn't being what isn't what's challenged here the terminations is what's being challenged and so i thought i think that under the germinated pursuant to procedures that satisfy the legislative immunity it doesn't matter that he was terminated but eat he may have legislative immunity and  these people have to decide at some point they have to get in a room i mean that's the way legislators operate they sit there and they come up they they do it but if it's pursuant to restructure whether you like it or not and it's  the procedures are followed then it suddenly has a legislative rather than executive character i would respectfully disagree with that your honor it in that regard i would i would just refer the court to the corporate decision in this court harvard decision the allegedly politically discriminatory personnel decisions took place in the context of a restructured government and nonetheless what the court explains is is even though the even though the executive decisions are taking place within that context that doesn't make them legit legislative they're still executive decisions they're just happening in the context of a restructured government i can tell the course based upon having litigated many first amendment retaliation cases that only the dumbest public official doesn't try to restructure job titles etc before generally though done this is done before the budget was passed or they generally done before budgets are pastor or the like a guess i don't think they are i mean look if i were the warrior for o'brien and washoe and and certainly miss simon wasn't at that time i would have been inviting then at least don't terminate them until after the budget passes but they didn't do that i mean it was really kind of reckless what they did not only did they give him his terminations letters two days before they even voted on the budget they they they told that the incoming papa a public defender a week before that that mr cowen asked he was going to be your time's up but i just want to ask was the fact that the position a limb unaided early mineta position is stated in parts of the hiring chart but not in connection with mr cowan asking is that was that probed at all  would like to address one comment that my opponent made which was that the process was budget neutral it was not budget neutral in fact the record showed that there was extensive concern with the budget because when my clients were elected and they consulted with the budget director and the head of finance for the county in preparation for taking office they learned there was an eight million dollar budget deficit so one of the directives to the various individuals they were consulting in order to prepare for what was needed to take office was to cut the budget but the budget increased the budget was one hundred seventy seven thousand dollars more for the defenders and that's correct because they when they restructured they eliminated a position of chief con council which was also involved in indigent representation so the transition team looked at the entirety of the issue of how representation to indigence was being provided by the county and all of the positions that were involved in that including the office of conflict council which it would take over a representation if there were multiple defendants or the office of public defender had some other reason for a conflict  they were able to take salaries from another area and move it so that they could increase the budget of the public defender's office why was count us he let go why was he let go i don't think that's the issue for  this court today i'm just saying i'm looking at the hiring chart and it looks top like he was switched out for another it doesn't show that his position was eliminated it shows another person was put in his position and i'm just wondering why from a restructure standpoint why was that why was that an integral part of the restructure the testimony in the record it's not that those entries in the hiring chart are one for one it's simply a device that mr o'brien used to track the salaries and you'll see it at one point it indicates the core dero and one check that was the previous administration salary for a position and the salary think we can follow i think the procedure is what's contained in the charter and desire to be on the turf and the to look to other courts that have looked at the issue on these precise facts including and  zero the salary was as the hiring chart shows allocated to a position that remained in the office of public defender was a summary of the budget that limited his position published in a newspaper and i believe the agenda is in is in the record but i don't know if there's a reference to what hearings were held was there what hearings held on the budget that was in place when my clients took office well then maybe you needed to tell judge computer how this is different and but but he didn't have any procedures was the budget adopted at a meeting different from the one at which it was introduced the budget had already been introduced it was being amended at the time that this was done i didn't see that in the record i saw no the word amend did not appear that and this is what i mean surprise me that you didn't go back and say just who will come in large the record and show why the procedures you know were necessary or were not but it's judge computer would not consider the evidence that we put in that the matter did go to a vote on reconsideration he refused to consider that evidence which was before judge connor sat in the record and that's in his opinion that what appendix page which show us that it did go to a vote that would be the ordinance that we provided to the court and the