the misconduct of other officers in their department to public officials outside their departments in a nutshell what happened in this case was that the plaintiff david bowler came across an information by chance that tended to show that an investigation and prosecution carried out by his department had you're down under unseemly and arguably criminal circumstances and basically the circumstances involved retaliatory conduct by the vice mayor son who was also the assistant chief on behalf of his friend in retaliation st of all that you know what happened was when mr bowler came across this information he tried  he st tried to report it to the higher ups within his department within his chain of command and that he did have an ordinary job merely to do it but the problem was they didn't take it very seriously they seem to be ignoring it so at that point mr ball or step outside his apartment voluntarily reported the same information to the elected district attorney in essence what he was doing was he was sabotaging another officers mr justice can you i would suggest maybe that you focus in on what your what your main arguments are in terms of what you're asking key question is did he speak as a citizen or versus or as an employee when making that determination the court typically looks at a number of different factors bulk of which support the plaintiff's position in this case facts that person might become a witness that officer became a witness in the case so that's a pretty customary duty that it an officer would have well something about this case that makes a little bit different i mean one thing about this case it makes it different is that it was not the officers case and it was not a case that he was involved in at all and specifically he was in or intervening in another officers case in order to basically sabotage the case and in order to get a case dismissed that he  it wasn't a aster you know case at one point well see that's that's not really correct your honor that and there's been a little bit of confusion i submit that the city has you know accurately summarise some of the facts in their briefs and it's an expensive case i guess conceivable that they just used some of these things but no he was not asked to review the case he was asked to pull some documents in i think he said a few different cases three or four different cases and so it wasn't a matter of reviewing anything it wasn't a matter being asked to investigate anything as he testified not only was he not asked to investigate anything but he basically  just this was all just information as i said that he stumbled upon by chance and that's what makes this case analogous to that the case apparently clay versus city of memphis and that case the court found that there were a few they found a few different factors that were especially relevant in finding that this was citizen speeches that it employees they asked basically did the employer ask the employee to investigate the matter in question employee a key distinction here i mean handy equate that she was a record scorer great man i guess this gets back to maybe it's just begging the question i don't know but i mean this this officer is a detective he investigates that's where he gets paid to do he's expected to do i don't know i mean why would that not distinguish this from that case well again he was he testified that he did not investigate in this case and was not asked to investigate further he testified that his general orders for him to him from performing an unsanctioned investigation and his general orders do specifically require him to report misconduct whether police officers to the higher ups in his chain of command but nothing else so he was engaging in his own misconduct by conducting this kind of extra investigation well i mean i guess that could be argued but he testified that it would not fall under misconduct because it was not it was not an investigation essentially all that happened was a friend of a friend called him up on he was at home was complaining about some the things that concerns me is the public servant branch theirs and both sides seem to be tiptoeing around what really happened drafting his police officer friends to help him retaliate for civil litigation which would be if so how do we generally by initiating this criminal investigation into  well and was was mark involved in that decision to pay the rent with a gun no no your honor and i don't think anyone is arguing that this man was actually innocent or that mr prosecuted and then prosecuting in this order but but ultimately cannot answer to your honor is concerned i mean whether this was a matter of public concern that's really not even on an on appeal i think that the district clock that they gave us to tell us exactly how much time but you know what it's like i'm running out of time i will just say this case is analogous to this the case of barrow versus city of hillview and that's a case where there was also a police officer and he was found to have spoken as a citizen because he didn't even though they said a police officer in general may have been some sort of duty to fight crime he was speaking specifically outside against his own taking taking leave time without reporting it basically but wasn't there wasn't there at least some indication that perhaps he wasn't recording his is because leave time and that and an off air observer might might think that facts are clear that mr hamilton was under criminal investigation crutch tempted mr bowler who is a detective with the city's police department mr ball or at that time i did not pursue anything mr bowler was later contacted citizens he asked to review the files in this particular case is that yes we argument is that that was he was not acting out of the chain of command and not acting outside of whatever he was instructed to do so the district attorney contacted mr bowler to refuse several files mr bowler testified that when he reviewed the hamilton file he then recall the conversation he had several months prior with mr hamilton and mr ballers deposition testimony set states that he communicated those concerns to chief harris who is the chief of police the time chief harris told him to get was another detective cox to see what he knows about it and see if there is any other information in his i'll just read the transcript since mr justice as indicated that we've misrepresented the record question ok so at that point she farris is directing you  whatever information you can on it answer affirmative response question and turn it over to district attorney helper correct yes so during the course of this of best it was an investigation that at the beginning mr boger might not have been the investigator assigned to the case but eventually he was acting under the instruction of the chief of police to coordinate with district attorney helper so i think the f the  standard it's clear that the speech was made by an employee in the further end of this ordinary job responsibilities as a detective he started sort of struck me like he was acting as a whistleblower in a way  protected speech in that case related to the record clerk's concerns that there was improper use of city fattens and was in the uk was a blowing whistle blowing about something that was completely unrelated from her job duties that the court that opinion around her said that her speech related she whether information was intentionally being withheld for pretty much your records request would not be protected because that was something that would be an i it was not in their ordinary course of duties to communicate with the f b i and white our case where mr holder was communicating with the district attorney in a case that he was investigating at the request of the district attorney at the request of the chief of police with the local prosecutor are you mr bowler or apparently you know worked with in the case i'm just city conceded that speech for guarding potential misconduct would be of public concern but i don't know the specific facts regarding the underlying criminal prosecution  here the court granted our motion for summary judgment this is a do no review with the presumption of correctness to the record below and there's no way i can summarize everything in seven minutes any harm as a result of the statements is there is there anything consequential to the difference between a limited purpose public figure and a public figure for purposes of this case no your honor ok sided from brown versus christian brothers the defendant still prevails because from north of the planet prevail even if they're not a public figure there has to be a statement made as to be made with the knowledge that it was plaintiff stole still sick time he had been off because he had cancer he had been missed a lot of time from the war and the fairview police department they were publishing just kind of like on a bulletin board like a list of everybody that work they are kind of like a roster and how much to time they had vacation time it was updated periodically and it was available for other officers to go check their own or falsified a record or that the record that was put out would indicate that he was taking more time than he had accrued and i think the understated facts are and it cited in the record in the break th disregard that because of his circumstance of being out for cancer but not that it wasn't true it was true that he took more time than he had been alive and so for my clients to say it appeared that he was using more time were stealing time there was actual proof that that was true and of the part b to all of this is when you asked the plaintiff what was the effect on that statement  did you get disciplined no i didn't did you get demoted no i didn't did you transfer to another department d no i didn't did you get investigated no i didn't do the county commissioners who heard about it doing anything to you know they did and so no history was a record of a history of one of officers reporting other officers for supposedly stealing leave time if there was a history of bad i don't know the only thing that came up in the depositions was that there had been another officer who had been off for other medical raisins and in his case decision time was deducted and he ran out of time and people other officers had to donate so little and you know what the facts that i that i don't think you did mention but if if if a stranger to this whole thing walks up looks at the board and says gee i don't think the math adds up for a bowler looks like he's had is in too much time that's one thing but these two are not strangers to this transaction i mean they had a pretty grudge against polar and well how do we factor that into whether what they were doing was negligent or maybe reckless because there was an ax to grind well and i think when you look at the district that mr mower was treated different than another officer and he was not losing the time so that that's the distinction i think that was the distinction that started if that's because there's no real definition of stealing stick time next year i mean that mr bowen was falsifying records that it was it was clear that he was not he was using more time than he was and as can be infer circumstantially from their they're recklessness can be inferred from their actual motive the fact that there was an axe to grind is circumstantial evidence that they were acting not just negligently but recklessly and specifically they were accusing him and i think it was referred to as dirt the accusations against him if used in a failing to report sick time which implies that he's got some obligation to report but on this on this st amendment issue i would just submit that the city is sort of employing the wrong legal standard when they just talk about things like well it's a place officer's job to work with the district attorney that would be you know i heard the city to say and maybe you can respond to this but they said that there was a very specific request by the police chief and the prosecutor at least the police chief to look at to review the spiles among the hamilton file and as a result of that he worked at them and then reported is that not correct it's not correct and this really what happened in this cut these conversations happened in several stages initially he talked to the to his higher ups in the department we don't say that that was st amendment that was part of his job to when that didn't work he helped in answer to your question he came upon this not because the  district attorney had asked him to investigate over you anything but because she had asked him especially the postal records for and the only reason he did that was not even part of his ordinary duties only reason he did that was the normal records lady was out  turmoil in the department so that wasn't his theory she was not asked point the point about him being asked by the chief to investigate is true but it's misleading because at the point when we're saying he spoke as a citizen there was no chief of police the chief came back two days after he blew the whistle and at the time he was under the impression that the reason the chief it turned back and the reason there was  investigation starting was because of his whistle and the chief basically didn't know what it was about and so he said hey it may have to do with my whistle blowing to the d a so and at that point that she did basically telling to sort of get his thoughts together told him to to investigate it some more and he did do some very limited investigation at that point and then just sort of recap and get get his thoughts in order in case you need to testify about it later  the key question in this case i mean you may think it as as a general rule maybe police should talk to the to da's that sort of thing the key question for this appeal is whether any reasonable juror is whether every reasonable juror what conclude that what he did in this case was part of his ordinary duties with the facts that we've shown in the factors that we should soon i just heard or  with that amount of time i do urge reversal and thank you all for your time thank you counsel for your argument and we will consider the case and issue an opinion in due course so thank you for