good morning may please the court for decades this court and the south dakota courts have been telling employers such as the city of millbank and its employees such as its city administrator and police chief that employees do not have a liberty interest where they do not disclose the employer does not disclose the reasons for the termination and there's no evidence of serious damage to their reputation they have been telling the employers that there is no free speech retaliation claim where the  is made that was part of the job duties and the speech that was made was not the material or substantial reason for the terminations and they've been telling employers that the employees do not have due process right claims where there's not a liberty interest that creates it first amendment doesn't create it and where the employee is an at will employee under south dakota clearly established law but here i believe the district court did not apply these legal longstanding legal norm instead essentially created a new law by not applying these norms and the district court should have applied those or should have determined that the law was not clearly established because they created new law and should have applied to the qualified immunity for the defendant which which start with clearly established what has to be clearly established here what has to be clearly established is that the law has to be sufficiently clear clearly established at the time of the alleged violation and we believe that the law go there tell me about tell me about your the clearly establish you think resolves a case quickest and the clearly established there is no liberty interest because the liberty interest has to have serious damage and the employer has to disclose the reasons and the district court even look at those elements and so when you look at those elements if you it's a clearly established law that you have to have those but the district court didn't even look at those elements so essentially created a law in my opinion that what is needed to establish the liberty interest the free speech we believe relative to that what the clearly established law was that the the employee has to speak about something that's not part of his or her duties and the district court didn't even look at that element so the law that the district court was applying centrally was a new law that you don't even look at the element of whether or not that employee was performing his or her job duties when they were speaking and when we look at that three speak was just talk about that one for right now the free speech claim you have to as a threshold determine whether or not the employee was speaking pursuant to their job duties that's something the district court here didn't even look at what the district court here did is to say he was speaking about a public concern but it's been this court has said that you have to first look at whether or not the duties that were not the speech was in the course of the job duties and when you look here there are the appendix two fifty two the policy that says the employee has a duty to report any concerns about equipment the employer has a duty to report any condition that he or she may think is safe and here what is so different than a lot of the other cases that the courts in the circuit have looked at is that the employer is challenging here that the speech was part of the formants of the job duties and here  have solid admissions by the employee this employee testified in response to the deposition questions that he knew of the condition of this seatbelt and tires his free speech purportedly because of his job duties that he reported it because of his job duties that he believed he had in fact a duty to report it to speak because of his position and he admitted that he was speaking pursuant to his official job duties and when you have  then that speech is not free speech protected you don't even get to the other elements of the free speech claim you don't get to the issue of the operations of pickering balanced house cave says that lions  that you don't get to the material and some sample reasons within that free speech and i wanted to draw this court's attention to the more recent lions and two thousand and seventeen and groom cases that were free speech qualified immunity cases where the court said you have to as a threshold get over that issue of whether or not the free speech is even protected whether it's a performance of the duties and here i don't think the district court properly applied that t specially just passed over that test thereby putting in what i believe kind of as a new law because it didn't require that element so if the court would have applied that to the free speech the defendant should have gotten the qualified immunity if the court would have applied the liberty interest relative to the case the liberty interest with the district court that is this employee has pre term a nation due process because he has a liberty reputation and a disclosure of public disclosure of the reasons and this court the district court did not apply that the district court even look at the issue of whether or not the employer disclosed the reasons for the terminations and in fact the record only shows that the employer said it's a personnel reason we're not going to disclose it so that wasn't a back to the closed amendment retaliation question is the question of whether he is speaking pursuant to his duties of fact question or a lot of questions i think  a threshold this court has to make a decision as to whether or not the speech is protected so i think that's a question of law as to whether or not the court has to decide whether the free speech that was made was protected but that's based on whether he speaking pursuant to his duties or not right right and so is that a fact question or a lock or you know i think that's a question of law in the mcculloch a circuit court case the comic united states supreme court case the courts have said that it's for the court to decide whether or not the speech is protected so as a threshold matter i think it's this court's obligation to decide whether or not he was speaking pursuant to his official duties and i think when we look at the elian's case in the grew up cases two thousand seven hundred eighteen that's what the court d review the qualified immunity standard review is de novo so just in terms of the qualified immunity i don't believe so relative to whether or not the speech was protected i still believe it's a question of law for this court to decide whether or not speech was protected not whether or not the i don't think it's something the jury decides whether or not the speech is protected i think that's what the court do you have any analogous cases where an employee is complaining about the condition of of some equipment something like that and whether they're speaking out about that as a matter of public policy or course of duty i can't speak directly to the course of the only three cases that i found in is circuit would be the shans case but there the court just looked at whether or not it was a public concern didn't look at the performance of the duties just said it's before it's a public concern i think we have to step back and i believe that's what the court did in our study the the safety of the equipment where the employer is challenging it and where the employee hasn't made any admission and here i think that's what really starts this case apart is that mr maule guard made these admissions that he believed himself believed his o have gotten qualified immunity i think that applies equally to the the city because the city can only act through its employees so if the qualified immunity it is granted to the two individuals it should also be granted to the city as well and the city can only act through its policies that were in fact at the place at the time and so i believe the city also has a qualified immunity for that the district court's decision and d and i don't believe it's been cited as any authority because when you look back into the lion's case in two thousand and seventeen the and the groom not case in two thousand and eighteen it's not a case that is being relied upon by this court anymore i also don't think it's  so i don't see anything that's been citing that stands case unless the closest thing to equipment don't you think it's our closest case on a quip it certainly is but there were no admissions by the employee there was no discussion at all whether or not the policy said anything about whether the employee had a duty to speak out about equipment in here appendix two fifty two we specifically have policies that say the employee has a duty to speak out about equipment to their superiors and that was a pretty free speech or i still have three on the brief and i think that the heart of this case is about the jurisdiction of this court to review this appeal because it is a an interlock atory appeal on the denial of qualified immunity which is an almost unique opportunity for a defendant to approach this court before there is a final judgment and so there are special rules for this in the law kotori appeal one of which he is that the court examines whether or not it has jurisdiction and this court has held repeatedly it does not have jurisdiction to review factual issues and there are factual issues that the appellant's the city and the two employees are asking this court to decide in its favor in order to decide this case in its favor well counsel state the facts most favorable to you because we do have cases say we could take the facts most favorable to you and still rule on it now yes there are those cases and those facts would be that david more guards spoke on the matter of public concern which was the poorer level of  condition of the police vehicles bad tires which interfered with a chase that allowed somebody to get away bad tires that were unsafe bad seat belts that were unsafe and these are matters of public concern and i think shannon stands for that very clearly and although shands maybe in one nine hundred ninety three case it's not that old earth at least like it it doesn't seem like it's that old and it hasn't been reversed and it's still good law and the district court ruled that poor condition of police vehicles is a matter of public concern do you know if we've relied on shands in modern times i  yes i could be more precise it is but it is not certainly not been reversed anyway the his isn't a question of whether the speech is protected a legal question under the context and  posture of this case there are factual issues about whether or not the speech is protected speech the one reason for that is that this study points to a generic policy about reporting unsafe conditions of equipment that applies to all city employees we rely on an essential job functions list that's very detailed that is specific to law enforcement in even if you  go to the common rule that when you have been specific in general do you go to the specific for the determination that would apply here but the other thing is there is a factual determination to be made about whether mr moore guard speech was as a matter of public concern which are very talked about but whether it was part and parcel of his duties and it was not part and parcel of his duties in the regulation the policy that the city relies upon in the policy manual does not require mr mo guard to address those concerns to the city administrator or the city council member mr winner it says you must bring those that to the attention of your supervisor and those people are not his supervisor his supervisor would be assistant chief cory who think most are good bring his concerns to t chief for years and in response to that the chief considered him a trouble maker and so when it came time for the terminations that was one of the things that this is the chief cited in his memorandum that this guy's on happiness job and he's always complain and he's just a bad a poison pill in the department the fact of the matter is most are clear it is a matter of common sense does doesn't it seem like it has to be a part of his duties in other words the only way he would have discovered it is by virtue of operating the vehicle every day which is of course part of his duties you know the vehicle needs to be operated in a safe manner you don't want him sliding off the road or running into other of the brakes don't work that sort of thing tell me just as a matter of common sense why this is a matter of public policy versus just simply part of his duties i think lane v franks made that distinction and that is is the report part of his job duties as it required of him where is a just something that concerns his job in other words a police officer is going to know the condition of those vehicles simply because he's a police officer and he uses the equipment but other people can observe those things but there is nothing that says milbank police officers if you have a concern you must report these to the city administrator or us or the city council in fact that would be considered a violation of the of the chain of command which is common in all police departments and more guard when he testified he did make  clear admission that it was part of his duties not whatsoever i mean he was asked about it in first he said i followed the chain of command and then he later said i think i was fired because i made the report to mr kemp wig and mr winner he didn't say that he was fired because he made the report to the chief or the assistant chief that i think would be perhaps within his duties but he did do that but he isn't saying that's why is fired his deposition makes that clear it's when he went to the city council member that he was fired and have to let me interrupt you to ask you in the lion's case a bit you're familiar with that there's this transforming issue it talks about transforming what began as an protected speech pursuant to that guy was a lecturer into protected speech by virtue of it addressing it to the chancellor of zero school and community leaders and you know the result aligns case tell me why that the transforming discussion to end of  if i'm talking about yarn you don't tell me because i focused on that obsessed with it tell me why that doesn't apply here because the court says perhaps it was a trance forming but to argue that transforming portie can't be clearly established you know what the court does there that little transforming point his deterrent of the opinion i think yes yes your honor but the first of all i would i would say two things about that it's clearly established that an employee has a right to talk to speak publicly to public officials about matters of public concern it is also the case that as a member of the public mr mo gard could speak to the city councilman mr winner and that's what he did and that's clearly what he testified why he thought he was fired and with mr kept waiting they are not his supervisors under the regulation that the the city relies upon so heavily they are people who are there elect well when are anyway elected by the public mr kemp wig was not only the city administrator he was also the h r director of the city so he clearly had to understand that there are protections for free speech on matters of public concern that's been the rule since comically miers but in addition to that even though the district court found that moberg was an employee at will under south dakota law the policy adopted by the city of millbank said before you get terminated for any reason whether it's forward speaking out or for protecting your liberty interest or whatever the case may be before an employee gets terminated for any reason that employee is entitled to these due process rights notice of what the accusation is an opportunity to submit what his side of the case is a meeting with a supervisor all of those things are laid out in the policy now millbank didn't have to adopt that policy as part of its policy regarding  employees at will but it did and the common rule is that once a governmental entity adopts a policy it has to follow it likes like it's the law and that is the law in this case the council how are those procedures in adequate administrator with the approval of the council and then it says if the employee files a grievance the last city level review is by the council so the same body that had to approve in a nerve more guards case did approve his firing is the body in the procedures that has the final review as though it's as though your honors were consulted about whether the employee should be fired and now you're going to sit and review of that decision that's what the millbank policy was written it's a plainly written policy also isn't that rather routine in the context of similar situations including the administrative procedures act or a government entity may have a hearing by the same agency that terminated the employee well by this by the same agency your honor but i don't i don't find it's routine and i've been through a lot of different grievance procedures with a lot of different cities and other governmental entities and i think it's more common that the chief would have the discretion to terminate the employee and then the employee has the steps to ask for review the final one be in the city council that's much more likely not that the city council already met decided to terminate him by violating all of its other procedures about notice an opportunity to be heard all those things and then as the final review and that asshole as a slight digression brings us to the point about the reputation and the city says repeatedly that the city did nothing to publicize that was was terminated by the minutes of the city council from may twenty five two thousand and sixteen clearly say this council voted unanimously to terminate david mall guard immediately and in a small town thirty three hundred people in millbank people are going to wonder why did one of our six police officers suddenly get fired by the council without any reason and just as corey huth testified in his deposition that that in a small town the rumors are often worse than the truth i think that's generally true but didn't he have the opportunity undisputedly have the opportunity for a name clearing hearing either with the mayor or our mr kat wig or the city council and he chose not to do that no your honor he asked for a meeting with the mare the mayor did not respond he had a meeting with mr kemp wigged but judge korman correctly ruled that that was not a name clearing hearing because kent we did not have the power to reinstate him he did have the opportunity for the final grievance step with the city council he submitted a written response in appeared before the council the council never rendered as a session they gave no decision to his grievance that grievance technically still has not been decided so i mean that is certainly contrary to due process and because there was no decision he had no opportunity to go to the south dakota department of labor with the next step of a gr appeal even though under these circumstances i don't believe that would have been required for us to go into federal court but the fact of the matter is he availed himself of all of those opportunities but they were all poised terminations at that point he had been fired he had been given a centrally a one sentence letter from the chief in the chief brought him in the office and said here's a letter picked hand in your equipment to assistant chief who thought and it was done but he still sought out mr kentwood two days later  filed a grievance in a timely manner he appeared before the city council the city council as i said was the same body that had decided to fire him to begin with also didn't we have to look at the post terminations proceedings together with the pre term anation incurring process as a whole i think we do in the sense your honor that if the post germination proceedings had been ignored by mr mo gard he would have a great deal of trouble you've just you've decided cases along that line but that's not the law here does not the case here and it's not the law i mean he did avail himself of those post terminations proceedings but it didn't do him any good and because of the built in problem with the millbank policy he's it's really not a big surprise that it didn't do him any good but on the question of protected speech it was protected because of his speech to mr can't wait in mr weener was not a policy was not required was not part of his job duties it was as a member of the public that he went to them after going to the chief had done no good whatsoever and he had been doing that for a number of years temporal proximity was not the only reason that judge korman ruled on that because chief then rohan had testified that he was the cause of these other officers quoting the department and we submitted an affidavit from one of those officers saying that was not true i went let me start with liberty interest you have to publicize a reason not just that the person was terminated city councils can only act in open session that's in the minutes no reason was given name clearing hearing democrats you asked about that yes he was given the opportunity he had three post terminations meetings he requested me with the mayor before terminations during the post terminations meetings he was given the opportunity to meet with the mayor he had a two hour meeting with the city administrator and he went before the city council and agreed his terminations at which time he could present anything this court has made it very clear in the delaney that kratz the gating case is that the post termination meetings can cure any preacher or nation deficiencies and to get to the issue of isn't it very common that the city council the same body is going to act continuously before and after yes it's very common twenty five years of representing public entities that's what they do the city council may be involved as an initial threshold and then they can be involved in reviewing the decision and that doesn't violate any law you have to show that that city council has actual b concern absolutely employers have a right to speak but they don't have first amendment free speech protection in terms of being terminated related to free speech where that free speech relates to a matter of public perform relates to a matter of performance of duties and when i asked him appendix fifty seven deposition page eighty five were you speaking as part of your job duties to the city council members yes i was following the chain of command meaning you went to them because you believed it was in your official duties yes so he clearly was speaking on these issues in performance of his job therefore i can speak about it he certainly can be terminated we don't believe that's the reason he was issue to the chief or whoever is next in the line of command but maybe it becomes when he goes to the to the elected city council does that then become a matter of public policy no your honor i believe that all along that is performance of his job duties as he admitted just told me just like you just told us this is the only tribe util in town surely sometime he's got the right to say something public he has an absolute right to say something public at any time but he doesn't have job protection if it's related to the performance of job duties you can speak about anything but you can be terminated lawfully if you're speaking about something that the performance of your duties he knew about the tires he knew everything because of  spoke to the individuals because of his duties and that's where you don't have the protection judgement thank you we asked for a reversal on the qualified immunity very well the court like to thank counsel for their arguments and briefing case will be submitted and