morning counsel it's my distinct pleasure and privilege to welcome you back to our courthouse it has been almost a full year since we have had any any in person proceedings in this courthouse and we are in a process now where sometimes who we are feasible we are trying to accommodate counsel who prefer to live argument if we can do so safely and appropriately and that's what we are trying to do today as you see we have plexiglas who are far more distanced you had we have individual check in times for your oral argument you have microphone covers we have socially distanced galleries and counsel tables and all of that sort of things and masks and  we want to make this a safe experience for all but we recognize that the solemnity and experience of being able to have the lawyers present their cases in person is a is an advantage to be able to see that and so we appreciate your cooperation and all the safety precautions for it so that we could do this today and we welcome you to the th circuit by governor grab at greg abbott to serve as commissioner and chairman of the t t c in june of two thousand and seventeen mr lilly contacted ms harrison regarding his personal stock holdings and asked her how reasonable she should should be interpreted under the conflict of interest provision of the texas government because ms harrison informs your little that that was beyond the scope d of her role as a licensing director and that she should consult or he should consult with an attorney portfolio we got rid of member of the public have had access to that or did she get that access because of her job duties well i would say she didn't get it because of her job duties but because is an attorney but as far as as far as i know the stocks themselves would be public but the actual portfolio put together in one particular document may not be public  of license keys available to the public in any way i don't believe the list would be yeah i mean that actual fact that a company is is licensed with a t b c would be louie then that would have been presented to her official job duties what she did was beyond that she said in her not legal opinion that she believed that these could potentially be conflict of interest in but outside the chain of command to mishandle mattel mcmahon's not within her chain of command and she also informed the h r director as well he was also not in her chain of command so yes they were internally vs mckinney case and in that case the th circuit in two thousand and eight health that internal complaints about excessive pay made it in the chain of command excessive pay and b p s was made as a citizen and that senator had no to that case when you combine that with the charles vs grief case which also stated that an employee speech is not protected merely because a concern is not not protected because it merely concerns facts that happened to be learned while in the workplace which goes back to her knowledge of the latest chairmen the only stock options just because she found that out while she was at work doesn't mean that it's not protected so the most important case i believe is the davis case but when you combine it with the charlton's greve cases well that's where we get over the hurdle of th the that the case most relied upon by and the defense is the williams verses that also independent school is your case and that case an athletic director sent a memo to a school principal about the misuse of athletic funds the court held it's done pursuant to his official duties because an activity undertaken in the course of performing his job and that the memo concern matters under the athletic directors purview namely the use of funds for school that led to it the primary difference between that case and this case is that williams was doing something effective as job telling the principal about misuse of funds directly affected and licensing director but wasn't i part of her job to digest this information and produce a result and report it it was part of her job to give him the information who was licensed with the t t c and if that's all could do and then we wouldn't have a case just like ms helm who was also terminated doesn't have a case because she was doing that giving a legal opinion that was part of her job and so when you compare what ms harrison was supposed to do with ms helm i think it's you know so is it fair to say that you arguing that she came into the information as part of her job but what she did with it was above and beyond her job responsibilities and so therefore that would fall within the ambit of davis and charles that's correct that is what i'm saying if she had just given him the information on the licensing and got fired for that and that was part of her job duties in the williams case wouldn't would apply but she didn't just do that she communicated both with chairman literally with general counsel helm h r director and her boss all of this information because she felt that there was a potential conflict of interest here and he had just become the chairman and so she felt as if it duty to bring this to light and then  cute i'm going to divest or none of that none of that's in the record and i don't know what happened i believe you might still be the chairman today last time i looked but as far as anything that happened after that i'm i'm a war going to where you are and that's what the basically that's the issue and that's what the district court granted the motion to dismiss on there is an issue i guess with the qualified immunity and the defendants have not appealed that order so based on that reasoning i don't think it's before the court but the randall versus lockwood case that we've cited states if a circuit case from pretty recently that it's the district court who is best equipped to deal with the issue of qualified immunity the other side to pelleas it cited a couple cases that i'd like to address amstrad a person's wrote a cite for the general proposition that this court can affirm the district court judgment on any basis about the record and i'm this case is clearly distinguishable because the district court in that case had granted the motion to dismiss based on qualified immunity that of course issue qualified immunity to the jury to determine whether or not the defendants were entitled to it so i don't think that case really has any bearing on the case before your honor's mr melton is assuming arguing you know and i'm certainly not foreshadowing reversed i'm sure the other side will raise the issue of the qualified immunity again and will argue that but i believe the davis case shows that it has been clearly established that an internal complaint that can be protected if i am it's made is a product of private citizens so if it goes back to the district court i'm qualified immunity and that is what will be arguing and but i believe affected his job he was reporting issues to disappear ears that would affect his budget misuse of funds and this is stuff that affects him what an ms harrison was doing doesn't affect her job she was just merely reporting what she believed to be potential violations and that has nothing that has no effect one way or another on her job assuming she didn't get terminated so that's court found that what he did the memo he wrote was not part of his job duties but found you know that it was part of his job that he was supposed to be doing and he had to communicate with his supervisor in job duties would have required her to do so it was kind of a noisy complaint within the office basically so regarding the chain of command her speech was to chairman billing and to the acting executive director in the  council ok so but her she was supposed to just talk to chairman lilly right that's her job is to advise chairman will only correct so if you look to the context of the pleadings the met the e mail chairman really sent to hears and he also sent to the general counsel so her response was d to the general counsel and ultimately to chair what about age are i'm not sure if that's in the pleadings whether they spoke to each or but setting question as the court said in williams just the speech is not is that it is not necessarily required by job duties but is nevertheless pursued to their ws if it's an activity undertaken in the course of performing their  letter to the newspaper if she had gone outside of the commission that would have been there to make this a closer case and it makes it a harder thing because she's a lawyer receiving information i think i'm not sure if she's a up no your honor there's nothing in the pleadings and that wouldn't really be relevant to this question either way because this question is specifically about what capacity her son was speaking and when she spoke and so williams or excuse me harrison was speaking and that wouldn't bear on this issue it would on other issues such as whether it's a matter of public and no going back to williams yes here is that not being punished for speech that concern something that she happened to learn at work the was just charles the three thousand lines this is the punishment of people for something they learned work is not to occur so the  trolls versus grief st of all is from a systems analyst to state representatives about potential race discrimination and retaliation within the committee that had nothing to do with it was far removed from the realm of his capacity as the as a systems analyst within the lottery commission now contrast that with here you have a speech that's about which entity's held licenses with the t t c and it's sole internal to his boss to the general counsel and to chairman billy and this goes to another point that the other side is talking about with regard to if this speech was just about who held licenses it would not be pro but that harrison going to step further you see in cases like davis and williams the speech wasn't soley about in williams for instance the the budget but what he also said was well it appears the principal's office is running running the shop for his friends favoritism for the running back house rules that was an additional complaint the on the budget that the court still said that that was the speech of an employee but what about why isn't there something of that here where they say not only does he have some teacher conflicts but these might be criminal matters why isn't that analogous so that's the same as  williams because the court said in millions that that was the speech you're saying that's there now and his point is that in williams and williams when he went beyond and said that allege that the principal was running but i thought if it's beyond that's a good thing look at the speech in davis for instance the speech was about specifically with regard to the response to the internal audit and there they are the court said that was directly related to her job as an internal water but her job duties were about the response to her audit her job was to look at the computers within the university and determine whether there was any problem so even though her job duties had nothing to do with the response her speech went beyond that which is about how the how the higher ups had responded to it the court nevertheless said that that speech was employees speed now contrast that with the speech about the pay of the higher ups and how they were creating a community of people who were overpaid and not doing much there the court said that had nothing to do with her job as an internal author who on their computers that was about a more general complaint  internal auditors point because the internal auditors supposed to look for areas of potential liability and that's to say that people are being paid more than the market rate would be a problem that an inter to me that seems like that would be part of the internal audit specially that there's an issue that people are not doing their work that to me seems internal audits and so so let me be more specific the core in davis was face of the internal  before was the special knowledge point that that principle goes towards when the employee is speaking at a greater authority than a private citizen would be able to and here we have that as as my fr other side said if this was just about being the lighting director that be one thing but here she spoke on a greater authority because she knew about a his private stock holdings and b which into ts were licensed with the commission she was really let go for a different reason altogether and that is to sponsor to know your honor him specifically with his inquiry it's not about her motivation for her terminations specifically on the nd factor we're talking about what capacity she was and thus regardless of whether her speech is a matter of public concern whether it was a motivating factor behind her terminate so if in certainly not foreshadowing so if we were to find that it was not close enough to government speech then we would have to see in this back i don't think the court needs to do that because every indication shows that this speech was made as an employee in not as a the qualified immunity sure your honor of the qualified immunity issue the district court passed on it the only reason we raised it here was because this seems a clear case for qualified immunity and the court has said that it should be resolved as early as possible  specifically here the court has never held that speech that is solely internal that's related to their job to do so would somehow see st action and thus because it's a clear case the court could resolve it on the ground however the court does not need to reach qualified immunity at all because every indication says that her speech was spoken in her capacity as the licensing director faith based on her greater authority as the licensing director and thus her speech is not protected by the  so i think that would make this a closer case if she had gone to law enforcement thirty she may have already under state law however d this case isn't that because it was so internal but yes if she had done things differently then perhaps this speech may have been protect it seems that you have the rule that the status seeking is basically you're not doing yourself any favors if you raise grievances internally you're best served by going to the police by going to law enforcement instead of raising employee grievances within the agency i think that this would be a closer case of she going externally but again as this court said in williams this is a very practical inquiry and so i wouldn't say it's a hard and fast rule but specifically in this case for instance her speech to the general counsel was also made to the acting discusses the report and this question she had with h r and then the complaint and paragraph four point three states that in her non legal opinion i mean she's not a lawyer and i think the complaint just seems to me that this is the kind of speech that made internally but also with outside a chain of command is exactly the kind of speech that the st amendment is designed to protect  furthermore our study also stated that the st amendment can protect speech related to the speaker's job and cited pickering the original case bring court on this which stated that teachers are most likely to have knowledge regarding the operation of a school and that was what charles st read the th circuit and basically supported the controlling factor in our study was that the employee was doing something that he was required to do and that is not in this case ms harrison was not required to do what she did she was required to help chairman willie by telling him whose license but she took it further by saying or not a legal opinion that she have your argument appreciate both counsel arguing today and these cases the court will stand in recess until its next argument and let me thank you very