case now thank you counsel others is there water in her you know somebody told me one time never drink that water but did not suffer a file ation of any pre term a nation due process in this case for three separate and independent reasons first of all the state of alabama  most cases but if there's an absolute total deprivation of due process at the pre term a nation that case indicates that is a violation and that's what the plaintiff was alleging here that certainly is the  but i disagree with the premise that is under lateral mill there was a process that was sanctioned by the state itself there was actually a ten year statute itself that set forth the procedure to be followed and the defendants in that case followed the statute they did exactly what the state told them to do in the statute it's just like assignment versus bircher honor where there is voluntary versus involuntary commitment the defendants in that case were explicitly following a state statute so i would agree with you your honor if the state itself deprives an employee of a remedy through a state statute th certainly mckinney versus pate would not apply but what mckinney explicitly says is if the state itself provides a remedy at the later explanation of the courts that includes the state court system then if the state itself does provide a remedy then there is no explicit violation of the due process clause and this is an important distinction that if you carefully look through mckinney mckinney says is that very thing that this was an in mckinney obviously what you had was a pre term anation hearing where you had county commission of those who held a biased h when viewing that process in the pre term nation context what the eleventh circuit said was that is the action of the commissioners itself it is not sanctioned by the state of florida and  other availability vailable remedies in the state of florida and therefore there is not been a violation and that's the very premise that we have here in this case sean we have made it quite frankly in the state of alabama sixty seven counties four hundred and something municipalities the state of alabama itself cannot be expected to know what every policy in every county and every municipalit instead the issue is can the state of alabama sometime later or even contemporaneously provide an employee with a remedy and that's what mckinney says it should be done and that is exactly what could have been done in this case but again mckinney is not an exhaustion clearly fortan versus board of commissioners and a lot of other cases support the fact that it's on a veil is there are unavailable remedy in the state of alabama court system that would give any employee that has chain your rights the right to notice an opportunity to be heard and clearly the eleventh circuit has said and bil that yes alabama courts do review terminations for compliance with due process not only that in cotton versus jackson this court admittedly applying georgia wall recognize the the plan of here is not contact is not arguing the mckinney rule that the county contravened established procedure in holding a hearing it's she's argument she never got a hearing that's right but that's respectfully your honor that's not the mckinney will the mckinney rule is if the state provides any remedy of vailable to correct an alleged deprivation then there is no violation for purposes of section one thousand nine hundred three mckinney draws a distinct line between deprivations and violations and certainly we can talk about whether or not she got a hearing but even if you assume she got no pre term anation due process whatsoever the question is did the state of alabama through its court system provide her away that she could compel such a notice in here was it a vailable to her it's not exhaustion if the state of alabama gives her unavailable remedy a way to get the circuit court judge to say hail county commission give her notice in a hearing circuit court judges in alabama could have reversed this terminations under a writ of mandamus and said put her back to work if you want to fire or give her proper notice give or a hearing and then there would be no violation of her section one thousand nine hundred three that's explicitly what mckinney says now also judge a scale and respectfully i would disagree with the concept that she did not receive a hearing because she clearly did get notice in the form of the meeting with the county commissioners in the executive session she was read the charges against her and at the end of reading those charges miss galbraith was given the opportunity to provide a response and she said no comment you can talk to my attorney that's the disputed issue you can take the shut up don't talk argument your honor but that this is not direct inside will and in fact is a manifest a disregard of the fact that she was initially told shut up don't talk in response to the reading of the charges and then once the reading of the charges was completed she herself on direct at trial said i guess i said no comment at the end why didn't you respond i want to let my attorney handle it i was frustrated she was given the opportunity yuri argument and then the jury heard all that and decide they rejected your position i would say your honor that it's that it's an established undisputed fact of what happened in that hearing but respectfully we can disagree on that well apparently the jury disagreed has vereker a fair enough wrong and now in addition even to get to this issue of whether or not she was entitled to hearing assuming mckinney doesn't apply well she only gets process if she in fact possessed a legitimate expectation of continuing employment which wasn't she under a contract she was under  unexpressed written contract or order however the contract itself said she could be terminated at any point without cause it also gave her the opportunity to quit at any time without cause without cause terminations or at will terminations are on it now she was given a remedy under that contract that she could sue for the entire balance of her salary but the fact of the matter is under her express written contract she could be terminated without cause and without cause terminations without cause provision gives no raw talent she went on a lawsuit if she see if she tried to get compensation now would she get compensation if he fire without cause you're still entitled to the balance of the salary under the contract so she would simply suman state circuit court and say you fired me without cause i hereby demand the balance of the contract at balance of my salary as the contract provides and then a circuit court judge could provide her with that remedy if he in fact found there was a breach now the other grounds for finding a property interest in this case was  hale county policy manual itself and we decide in our brief that that's an issue that arises under state law as to whether or not the policy manual can constitute an employment contract and what hofmann will roche in alabama says is there has to be a clear and unequivocal offer of employment and in this case there was for this reason that the objective manifestations of the parties under alabama law is what helps you determine if there is a clear and hon lawful and miss galbraith testified and probably most importantly that she never served a probationary period now where the the district court and miss galveston rely upon is the fact that the policy manual says a distinction between probationary and permanent employees but if you're never a probationary how could you be permanent and therefore there wasn't a clear and unequivocal of the the language that she quoted talks about whether the language contained in the handbook was specific enough to constitute offer and again you know found that it it had been as an alternative to the property interests also bestowed on her by the contract so it sounds like she reads hoffman rush a little bit differently than you  trip me up we spent a lot of time in it and so learned learned during that time but the issues that mr lockwood brains in this appeal all center around the property galbreath have a property interest and also did she have notice an opportunity to be heard regarding the due process argument and all of it the majority of the issues on appeal all center around that as far as the property interest in one of the things mr lockwood just stated answering your question that whether the handbook forms a contract is an objective standard but then discusses then mr lock od cites to miss galbraith's subjective interpretation that it is an objective standard and part and in the appeal mr lockwood cites to judge crawford's interpretation of the handbook in ms galbraith's but objective leon is the district court reviewed the handbook creates a property interest and it does this by putting all employees of hale county into two parts probationary and permanent and a probationary employee becomes permanent after they've served ninety days pursuant to the handbook and is galbreath had been there longer than ninety days on page two of the handbook it states that all permanent employees are entitled to due process and then continued reading the term permanent comes up over and over again the in the case of green versus city of hamilton the court stated that what they found most persuasive in the handbook creating a property interest was the use of the word permanent throughout the property interest also there was there was another lankford versus hale county which was an appeal and a case that was just prior to this one it was the same hymn book the same defendant and judge depose in that case found that the handbook established a property interest and in summary judgment when judge grenade was writing to this she stated that judge the bose's analysis of the handbook creating a proper property interest was so thorough the she saw no reason to deviate from it now the property interest being created by the handbook which ms galbraith received she signed for it was placed in her personnel file she also had a written contract and the written contract called for terminations for calls and as mr lockwood pointed out it could be they could she could be terminated not for cause but the contract itself refers to  page two under benefits that the employee ms galbraith is intitled to all the benefits of any hale county employee which would include the handbook in the provisions in there but as to mr lockwood's argument that because she could be terminated for any cause if that happened she was still entitled to receive all of her pay and the pay is the is the property interests the only way hale county could take her pay away from her was four and a four calls terminations pursuant to the written contract now after the property interest is established the next issue that the defendant and the appellant's appeal deals with is notice an opportunity to be heard what i'm concerned most that just speaking for myself is i think the biggest issue we have here is how to apply mckinney be paid in this context because mckinney b pay and a k did that procedural due process violations do not become complete until the state refuses to provide  process planet can suffer a procedural deprivation but that's not a violation as long as all to mentally there's the power to review and remedy any procedural deficiency and the court concluded there was with a higher court tell us how we handle mckinney be paid in this situation yes your honor and i heard what mr lockley would stated about it not read their argument in mckinney mr mckinney was given notice and given a three day trial pre term anation he was given notice an opportunity to be heard before his property interest his job was taken away from lockwood's interpretation an argument nobody has to do anything in alabama you can take jobs away left right in between because unless somebody complains after the fact and after we've taken your property interest you can do something about it all he argues mccain he paid supports that argument mckinney paid says we're not going to start taking micromanaging what happened with procedurals procedures that weren't followed we're just going to say if you  have a higher court you can go to you gotta go to that court that's that's correct your honor but the mckinney deals with these things happening pre term a nation the bias and mckinney was a defect in the pre term a nation notice an opportunity to be heard mckinney got notice an opportunity to be heard his only problem with it was there was bias in the decision maker and your honor as you pointed out to do otherwise would contradict louder the board of education or cleveland vs loudermilk the supreme court case in which there was no pre term a nation due process now the appellant to make the argument that loudermil dealt with a state statute and that was the focus but i disagree louder mill discusses the fact that a person deserves a meaningful meaningful notice an opportunity to be heard that to be a notice an opportunity to be heard needs to be meaningful can't just be walkin out to your car in the parking lot and somebody jump out and say you're fired what do you have to say about it and that's that essentially without going out for a car in the parking lot is what happened here there was notice that personnel would be discussed in executive session about the county attorney and the county administrator ms galbraith that's all it said to conduct this executive session where they read out a disciplinary notice which you're not dressing the way we think you should dress you're using language we don't like you're not here  when we want you here and each time she attempts to explain what's going on and she's told to shut up shut up you know you're not dressing up shut up and then at the very end ok do you have anything to say about it she's surprised she shot and argument and the jury agreed that this notice an opportunity to be heard was not meaningful well in one of the facts before the jury that she  e it was part of her job to attend these meetings and so from her point of view there was nothing different about this meeting she she wasn't there because she knew her position with the county was going to be discussed she was there as a part of her job when that before the jury that's correct your honor as county administrator she attended all of the county commission meetings she attended the executive session she took minutes at these meetings now the appe is because not all of the minutes ruin the minute book but i would point out to the court that the defense was using this to try to establish the fact that the last contract the two thousand and twelve contract did not exist because they could at the onset of the case there were no minutes reflecting that we did find the minutes and discovery they had been typed up by ms galbraith but they had never been t and signed off by the commission and placed in the minute book well the defense used this to show where she did a terrible job the minute sworn in the minute but the jury understood and saw that we went to trial years after the fact and the commission had plenty of opportunity to print out the minutes sonam and get them in the minute book they hadn't done it at that point and the jury took that into consideration that perhaps job her performance was not as bad as the defense was trying to have them believe but your honor after the after the executive session  and they they asked ms galbraith to sign off on a form that said here's your disciplinary notice and she did not sign it but the form stated here's what you've done wrong here are your corrective steps and if you don't do these things it could lead to your terminations it stated that on the form commissioner rogers only signed the form after he was assured that this had nothing to do with her terminations they come out of executive session go into general session and commissioner anderson makes a motion to terminate ms galbraith on the spot it was seconded by commissioner hamilton commissioners hamilton and anderson voted to termin before you get to that was she a given an opportunity to respond at the open meeting to this she was not so you're saying even if you can't what happened at the private meeting the executive session as a response she was on a different bog and that was we might have disciplinary proceedings when you get to we're going to fire you there was absolutely no opportunity for her to respond that that's correct and commissioner anderson scuse me commissioner rhodes stated it when he abstained from the vote to terminate her and he stated the reason he got to trial he didn't know to this day why she was terminated there was no discussion as to why she was terminated at that point on so in general session on she was given no opportunity to now along with the notice an opportunity to be heard all of that went to the jury and the jury got to they heard all the testimony they saw all the witnesses all of the commissioner spoke except for david rogers whose testimony was submitted by declaration he had a medical emergency but the jury heard all that and the jury also agreed  judge morton didn't think i was probably appropriate for me to wax eloquent response your observation on hoffman rose replied i'd like to take this opportunity to do so were guarding the district courts reading of hostile rows and certainly the district court does reid hoffman the roach differently than i doing and respectfully i believe that the district court read hofman the roches with legal air that in fact what hoffman roche and it say is that yes it's an objective test to determine whether or not a policy may constitutes an employment contract but you look at the objective manifestation of the power of the parties to get there and that comes from the bell versus south central bill case in alabama and so again it is crucial not merely look at what the handbook says but actually what did the  do and explicitly nobody in this case was treating this policy manual as applicable to try seagal breath the board i'm sorry the county commission wasn't amiss gelber certainly was because and so when nobody axes though it applies through their objective manifestations well miss galbraith's says no the disciplinary policies didn't apply on me i didn't have to come into work on time like it said i could set my own hours i didn't serve a probationary period she said none of those things applied or follow or she followed that is an objective manifestation that there was that the handbook doesn't apply and therefore there wasn't a clear and unequivocal awful and additionally the other reason why there is not a clear and unequivocal often and this issue was also raised in the langford case which is somewhat of a campaign in case it is there's different categories of employees set forth in the hymn book itself you've got probationary you've got permanent but then the handbook also sets forth supervisory management staff and certainly that is an issue as to whether or not miss galbraith would fall into that third category of employee supervisory management staff and she certainly i think based upon her duties would certainly probably consider herself to be given that she repeatedly called herself a contract employee so for that reason respect believe there was legal or in the application of hofmann roche the second issue raised by ms galbraith today is that the pay that she should that she could have gotten under the without cost provision pay is a property manager well that's going to transform every contract of any governmental entity enters into into a potential due process claim any time there's a dispute as to whether money is owed under a contract if that was the rule the due process would have to be followed rather than a simple breach of contract action and then finally with regard to mckinney vs paid judge corns  the exception that might be out there is whether or not there's absolutely nothing given in the pre term a nation context i mean that's what  buy into as an exception but in this case she at least got something we can argue to a jury over whether or not it adequately satisfied the standards of pre term a nation due process and certainly i believe it explanation the ability to respond and according to your posing counsel the real decision hears the terminations not even what happened in executive session and when they walk out and spring this on her she's da loud to respond at all  and respectfully your honor i don't think the magic words you are about to be terminated have to be used and i've learned this lesson the hard way in front of this court i was on the plane and sent down to have to be used when the last thing unpublished decision no ma'am i was actually a publisher incision and in that case he was called into a meeting and basically accused and given an opportunity to respond but they never said this could lead to your termination never said anything it wasn't from the decision maker it was an investigatory panel and the eleventh circuit said yeah just being able to give a response that's enough and while there might be disagreement with that that's certainly what this court has held and certainly what should apply in this case thank you