intro corporate conspiracy doctrine and second because appellant's spoke and acted as private citizens about a matter of public concern when they cooperated with the f b i investigation in criminal prosecution of their employer chief capel and testified as criminal trial in this case of course what happened was the chief of police and the police major ordered the officers to move a backpack meth lab out of the mayor's backyard and one of the officers reported that to the f b i and the f b i began investigating and chief capel was eventually prosecute indicted and found guilty of making a trial is that there was a conspiracy between chief capel and major strong on acting in this scope of their employment in the interim yes i think that is correct based on the sports and they were going no i don't think that they were acting within the scope of their employment and i don't think the facts support that there are there are two exceptions to the intricate conspiracy doctrine that are intertwined in this case one is that they weren't acting in the scope of their employment and second is that they were acting in their personal interest as to the scope of employment it certainly with outside the scope of the employment duties of a police chief or a police major to deter truthful  testimony it's certainly outside their scope of their employment to retaliate for an illegitimate interest things want to stop you for a second do you elaborate on that do you look at retallack retaliatory conduct or do you look at the alleged objective so and do you have cases that address that i think that judge i think you must look to both you've got to look at the the conduct itself certainly it's within the scope of employment duties for a chief of police or a police major to take disciplinary action against officers right we would concede that  the issue here is the disparate treatment of these officers officer barrow was was cited for speeding in the police department parking lot in his patrol vehicle we are aware of no could as long as that yes i mean yes as long as it wasn't motivated by that it sire to retaliate it's also important judge of andean to note here that according to the city of hillview police department's own policies a police officer who has been indicted is not to exercise their police powers one of their police powers is citing people for violations of off chief cable at the time that he cited officer barrow for speeding in the apartments parking lot had been indicted yet he didn't surrender any of us police powers he retained his police weapon he retained his badge he reported for duty at the police department he disciplined officer cook and officer barrow which according to the on policies he should not have been able to do because he was should not have been exercising police power he continued to do all of those things and both officer barrel and cook and the pleadings have alleged that even when  chief capel said that he was abstaining from exercising his police powers he wasn't still exercising them in effect through major strawn through his coconspirator or i believe it was officer barrow who said that  that straw man didn't take any actions without first clearing it with chief cable so cables by the operation of the city's or the police department's own policy should not have been engaging in police activity and yet he was and the the disciplinary action that was taken against both beryl and cooke we think was pretextual think the evidence supports that it was disparate in the sense that other officers committed the exact same infractions that department allege that barrel committed for example and yet they weren't suspended one of the allegations against barrow is that he effected a traffic stop with the trigger triggering his vehicles camera but there have been other officers including major strawn who did the exact same thing who engaged in pursuits or traffic stops without triggering their vehicles camera and they weren't disciplined at all as the make any difference to some of these actions to discipline barrow and cook occurred in the context of these monthly meetings apparently that were held at the view police departments i wasn't just capable stronach fabric but their record right about that well back in the record when that man for the support the notion that this was within the scope of you know the duties of these cable and run it they could certainly judge the  disciplinary action was initiated by either people or strong or both and signed off on you know that these were the chop to top two ranking officers in this department and there could be no discipline  capel the chief didn't want to do didn't want someone to be disciplined they wouldn't be if he did want someone to be disciplined and they would be no one could overturn cable's disciplinary decisions however there is a civil service board in barr that some of the disciplinary actions was were appealed to the civil service board in cook's case there was a settlement before the hearing before the civil service board so the civil service board never heard any of the disciplinary charges in barrow's case they did hear the disciplinary charges and then held the discipline the at the civil service board the only issue that could be raised according to kentucky statute kerrison ninety three six zero section three was it confines the scope of the hearing to issues presented in the written charges so only the charges against barrow could be litigated before the civil service board there was no opportunity to raise claims arising under federal law about conspiracy but can't you raise things in defense in fact to to the extent that barrow attempted to raise the issue that other officers had been disciplined for similar or the same conduct civil service board expressly refused to consider that evidence and said that it wasn't appropriate in defense there were other issues with the operation of the civil service board which i think are not before the court  and it's also important in the operation of the intro corporate conspiracy doctrine to recognize that that chief cable and major strong had personal objectives to retaliate against cook and barrel and to deter their testimony they wanted to protect their political patron mayor eden's who we can at least infer that edens as the one who ordered paypal to have the meth lab removed from his own property they also wanted to avoid being crimped being incriminated or prosecuted by the f b i of course chief capel eventually was not only prosecuted but found guilty of lying to the f b i they wanted to avoid that from happening and they wanted to protect their jobs they wanted to retain their positions as chief and major and having two sworn officers testify under oath they were ordered to commit a criminal act is not the best way to keep a job in law enforcement and i think there can be no i mean there is certainly no legitimate law enforcement interest in punishing witnesses who testified truthfully before the f b i turning to their argument about the first we haven't really recognized that exception  the personal interest exception to this court has not expressly recognized an exception for personal interest certainly courts within this court circuit district courts and state courts in michigan have recognized that exception i think in this case the personal objectives of capel and strawn and their their activity outside the scope are so intertwined that they are difficult to untangle this court should recognize that when especially in this case when corporate actors who are public servants actually not for the good of the city that they are sworn to serve and protect for their department that that they apply in this circuit certainly this court has already and johnson and hills and dales general hospital recognize that if you the action is with it is outside the scope of employment in the interim corporate conspiracy doctrine wouldn't apply i think it's clear from the evidence that it was outside the scope also these gentlemen spoke us citizens on a matter of public concern i think there's no question that there was a matter of public concern the only question is were they speaking when they testified pursu lane versus franks and argument is essential a that the officers are not employed by the city to investigate public corruption they're not employed by the city police to investigate other sworn officers they're not employed by the city to prosecute federal crimes when they were patrol officers but you were telling me this record they were punished in their employment for what they were doing and that they were acting as employees right yes and kentucky employment yes that there are two claims that are made the alternative one is a tort of wrongful discharge and the other was the first amendment claim that we certainly are getting the alternative concede that the argument before you know in the response  motion for summary judgment about the first amendment claim was not as well fleshed out as it could have been however i think we've done enough to preserve what i'm looking when i'm reading your summary judgment that it's your picking of you're picking a theory i mean you're picking the they're acting within the scope theory right i mean it's that's the way it reads to me i don't know it seems strange for me to have you come up here now and say the district court made a mistake when i'm not sure it was presented to the district court that way i think that we did enough to preserve the argument as to the first amendment however i'll agree with you that it wasn't fully fleshed out in response to motion for summary judgment on the matter of public concern that you believe that pharaoh and cook have a meth lab removed from his property and then to report to the bullet county sheriff's department that the meth lab was found somewhere else in an effort to protect them err from having you know the publicity through having the public  become aware that he there was a mobile meth lab found on his property and i think the other matter of public concern is is what happened when you know the fact that the officers were ordered to move this meth lab and then to cover it up certainly the public i'd say that public corruption is a matter a quintessential matter of public concern you'll have your full reb may please the court counsel exception in this case let me jump ahead a little bit to the in just dispose of the first amendment part of the case there's no doubt in this case that the when the when the plaintiff came forward with this proof that it is undeniable that they took the position that the that the officers were acting within the course and scope of their employment when they cooperated with the f b i when they testified at trial they pled the first amendment claim in the alternative and then when they came forth on summary judgment the district court pointed out well you can plead in the alternative but if you're going to come forward with a claim on the first amendment you've got to prove it beyond a summary judgment standard and they could they took disparate positions totally opposite positions in that regard the court basically said you can't have it both ways you can have a both ways you can have a poke ways you can plead in the alternative  theirs and as long as you have facts that would support either position it's fine there's no rule that says that you have to choose is there there is no you have to choose sooner or later and they came forth with no facts to support their first and that's a different that's a different story i mean coming forth with no facts is different from saying that it's summary judgment time now you have to pick a horse i don't think that's the law that you have to pick which theory you're going with a purpose but they have to come forward with the proof of the case the proof of the case that they provided to the court was that we were  they came forth with no proof tilt backs to support of the reason why didn't they just say we think it's this theory here's our evidence and you say no that's not right and then they say well that's fine if it's not right summary judgment is denied it's a disputed issue whether they're acting in this job or not so they've got to claim they're still alive i don't know where you i mean i don't know when you have the america i mean but it's at some point they're going to have to but why would they be able to have  well on summary judgment they have to pick it some don't and there has to be proof to defeat my motion for summary judgment on the first amendment claim and there is none well but the problem is the least it seems to me that the facts are there i mean we we know the facts we have the allegations and then we have the facts to support it to the extent that there's discoveries so council puts takes the facts and puts it in the box and it may turn out it doesn't fit there but but plaintiffs has already said it's not like at the last minute they say well if it's not that it's a first amendment claim the first amendment claim is in the case and it's not that the facts aren't there because the same facts that they want to use to support that that it's in the course of employment they're the exact same facts that ultimately they want to use for the first amendment now they have to get over the hump they have to do it they have to show that that's enough for first amendment claim but what if the the same why isn't i mean why can't they pursue that avenue judge since and specifically address that issue and he said the defendants argued that it was plenty of sworn duties as police officers  report any such suspected illegal activity to appropriate law enforcement authorities which they did here's what he said and that and this is what we agree with he adopted my argument that it cannot be reasonably disputed that barely cooks reports to law enforcement authorities were made pursuant to their official employment duties plaintiff do not dispute this argument in fact they admit that they believe their cooperation with the f b i was pursuing their official employment duties stating in their own brief as somebody judgment brief as we now believe is a clear plan of speech was action constituting performance of their law enforcement duties rather barely incurred clarify that they bring count three only as an alternative to count two in the court in case the court may not agree that corporate cooperating with the f b i and testifying in the cable suit was part of plants law enforcement duties the judge didn't judge simpson did not agree with that well and the plaintive said in the event that you don't agree then it least there's a first amendment but i mean if you don't agree and then so it's not in the course of employment then it's a first amendment cla court the district court ruled as a matter of law at summary judgment that it cannot be reasonably disputed based upon the plaintiff's own testimony that they were acting within the scope of their employment but it's what do you do about the fact that it's a question of law i mean they can say it is you can say it is or it isn't in the anybody can say whatever they want but ultimately for purposes of the first amendment that's not a question for the jury it's a question for the court whether what they did is falls on which line this court creative hope court created line that separates the public interest from the purely for employment yes your honor in the in judge simpson decided as a matter of law because it is a matter o then isn't it proper for us to review that determination because it's a matter of law shit don't we have a chance to say well he either got it right or wrong absolutely ok ok five and takes it all the way back to the sherman act and the it's the most the law is so clear on this side of the coin by the way the supreme court united states has pointed out that the circuits are split with regard to whether we're going to apply the in for corporate conspiracy doctrine i e that a that a city cannot conspire with itself by and through its employees or not the circuits are split the majority do follow the law with regard to the interim corporate conspiracy document doctrine and it is clearly established that the sixth circuit applies the the exception that is clearly established in the sixth circuit each and every one of the arguments that have been proffered by the appellant have been addressed in six circuit cases and apte the appellant's reliance upon cases like brevard from the tenth circuit is totally misplaced those the tenth circuit has not even adopted the enter corporate exception to section one nine hundred eighty five in this case the here's what happened the plaintiffs were given disciplinary action as a result of what officer cook at mit in one instance was poor police conduct they initially appealed their employment adverse employment decisions to the civil service commission because they are not employees it will they are not and so when that occurred they said well we're whistleblowers and they filed suit against the city and against the city under the kentucky whistleblower act the court determined that the kentucky  whistleblower act does not apply to cities so the next thing they do is they they say well we can't sue you under the whistleblower act so we're going to sue you under the under section one thousand nine hundred five and we're going to try to establish it so the question becomes what the case law or what law applies as a remedy to the alleged misconduct on the part of the city the  their let's say we take the city out of it and we're talking about the two individual defendants if so the the the plaintiff has to show that it's this was not done in the course of their employment right basically you have something it's an intricate exception and so and because you're not even talking about the city now you're talking about the two of them are they really two separate entities is that the real question question yes ma'am ok if they are acting within the course and scope of their employment then they are acting as the city and the city cannot conspire with us right now what if they were not if they're not acting in the course and scope of their employment they're acting as ro individuals then that would be an exception ok so how does one determine that and how did the cases tell you that you determined well the court looked at each and every argument the court the court that have a doctor and that have adopted this the enter corporate conspiracy doctrine have looked at each and every one of the arguments that have been advanced by the opponents first of all with regard to the  protects corporate entities from the pressures of conspiracy by protecting them from internal corporate decisions that are being made by various and multiple actors the significance there is that's what we looked at that's what we look at in determining whether there's a conspiracy that's the basic question and the fact that there are multiple people involved in the decision is not dispositive the reasoning goes to this is that if the multiple actors are acting within the course and scope of their employment then they are acting only on behalf of the city and the city cannot be what are with itself why is it not the case that if i happen to have a  job i can do things like discipline people i can grant permits i can do all this stuff that's my personal job but i have some personal vendetta against somebody and i act i do something official but i'm motivated by my  why is that why do i still get the protection of this excess if if it is done with then the course and scope of your employment are just a formal party you know in my in my authorized to deny permits yes if i denied it conspiracy so you're saying ok so i might they might have a nine hundred eighty three claim or something like that yesterday get in the example that you just just gave me perhaps they were done out of property right with regard to the permit but what if it was ok what if it was me and judge white that decided that we have a personal vendetta against somebody and we together are authorized to then i permit so whatever it is the issues of pretext with regard to the discipline and the issue of the personal stake have been addressed by the courts and your honor brought up the the personal stake exception which has not been adopted by the six circuit in the in the context of it if i hate to if the acts were done within the course and scope of their employment there is only one actor the city and the city cannot conspire with this self what about the argument that according to the city's rules once he was an indicted he he was not really acting in the course of his employment again it goes to the circumstantial evidence argument that there goes to the evidence of the discipline and the pretext for the discipline and those exceptions have been have not been adopted by the six circuit under no but that's the this is the first one the pretense is different from in the in the course of your employment i mean if in fact that it at that point the standing law is that evidence circumstantial evidence of pretext or of personal stake does not take it out of the cut the corporate conspiracy doctrine in the six circuit but i think i thought  so how was he acting within the scope of his employment well and the record shows that in fact that at best he was attending meetings and that he was not imposing that discipline and you know you've got all of the circumstantial evidence which which is not germane to the question before the court on section one thousand nine hundred five for instance the mayor there's no evidence in the record anywhere that the mayor ordered that the meth lab be be removed the these these search these matters of circumstantial what's the best case that's just in wishes or do you have any cases that specifically address whether you look  at the circumstances in which the decision is made as opposed to the motivation johnson versus hills and dales johnson versus hills and dales ok and cook the it's also evidence of disparate treatment in court this court's within the circuit have ruled that enforcement of an otherwise valid law or as in this case a policy can be a means of policy of the hillview police department it's very clear that you don't retain your police powers when you're under indictment if you're taking if you're exercising those police powers when you're under indictment in contravention of the policy you must be acting outside the scope of employment and of course chief capel initiated these disciplinary actions and signed the disciplinary decisions and we think that the evidence is sufficient to get past and we don't have to have to wait so who who's  conspiring with major strawn who was when when capel was saying that he was not participating he was participating through strong who was his right hand man barrow testified he didn't believe that trying to do anything without checking with cable first and of course the personal interests of the of both cable and shawn were present there as to the first amendment issues that there's a question of  they have they had already spoken to the f b i when all this disciplinary stuff began yes barrow was the person who originally reported moving of the meth lab to the f b i he's the first person to do it there was no discipline until after that occurred then detective cook began cooperated with the f b i and both testified that they believed that the department was aware or at least suspected that they were the ones who had cooperated with the f b i and then and then when did the indictments occur i'm not sure the date of the indictment but a criminal trial occurred after the disciplinary actions had already