may please the court morning my name is keith carlson and one of the attorneys representing the plaintiff david christopher after the written reason for terminations was given to david crisp effect on the day he was fired by the village of orland hills by its police chief thomas scully was quote you contacted several members of this agency telling them the police chief was a criminal and was going to be indicted you also accuse the village of feeding corrupt coal that reason when he was terminated in addition to is not the first time we've been before this court on this case chris the fact one was ruled upon largely based upon public concern grounds with a relatively explicit an admonition from this court about whether or not the issue of public concern would be determined solely based on motivation undaunted defendants as well as the trial court did not heed that advice and still found that mr kristof ex speech public corruption within a police department was not a matter of public concern chief didn't know about the f b i i think we can win either way and there's two reasons for that one is that there's more than enough evidence for the jury to be able to determine that based on timing alone for instance could be an up in addition there's also the factor that the speech to his coworkers was protected similar to franken for instance in which he encourages his coworkers to go to the f b i with him in fact officer rick about me and one of the memos to the chief that was the basis for the chief's  fire officer christopher back was states in there explicitly that he want then to join him in the outcry regarding the ticket fixing issue so there are two different matters of speech there it's not just that he went to the speech so no i don't believe that our case at all rises and falls soley on that issue but i believe a there's more than enough evidence on the record to support that the chief had knowledge because he took this action within a very short period of time of officer christopher going to the f b i in addition there's evidence in the record the deputy chief a law whop who was in the meeting determination meeting testified that chief scully specifically asked him did you go to the i which imputes certainly knowledge that the f b i was in consideration at that point so i think the matter of causation as this court has written several times that the matter of causation just requires that it is a motivating factor i think we  more than surpassed that threshold you know the thing that's also talked a lot about christopher motive but is it your position he was reporting a matter of public concern even if part of the reason that he did it was for himself i don't  certainly took this court's admonition last time where they specifically told me that i was giving up too much last time and that no motive is is to motive is not dispositive that the content of his speech especially when reporting of integrity issue within a police department is absolutely of such concern that motive becomes irrelevant but here there's more than enough facts to demonstrate that mr christopher back was motivated by more than his own concern for his firm his own liability and the best example of that is he once spoke to the other coworkers who were involved too and said hey you guys should probably speak out on this to officer rick about his memo to scully says this has to stop this can't keep going on which all indicate a broader concern than mr chris the facts personal concerns that may have been involved as well all which are reasonable if you find out if you go to police training at some other institution that you work for and it says hey virtually say the same fact pattern this constitutes official misconduct that certainly is inspiration for most people to take action and in this case what it krista feck do did he run out willy nilly as the trial court's opinion seems to indicate not at all he went and he spoke to a private attorney and he spoke to his coworkers and then he went to the f those are not haphazard lead lodged unfounded accusations which seems to be a theme throughout the trial court's opinion that seems to be the linchpin of upholding its argument which is that he argue the trial court found that officer chris the fact was reckless in his speech and to find that he was reckless would have to ignore the police training which we include in our briefs a verb a dumb questions and answers which are fantastically similar for the facts of this case you would have to ignore the fact that he went to a private attorney you would have to ignore the fact that he went to the f b i and you would have to ignore the fact that at the time that he made this speech there was an illinois appellate case with ticket fixing by a police chief and there was an illinois attorney general opinion on already published at that time saying that behavior like this is criminal behavior instead the defendants as well as the trial court for whatever reason chose to invert the burden under this case and that the burden is on the defendants to prove that it was untrue and recklessly made and that is not the case in the circumstance here officer christopher if anything was cautious in his speech not reckless and what he said is largely true there is no burden that when a whistleblower goes and speaks to the f b i that they to secure a federal conviction for it to be protected speech and that certainly seems to be what the conclusion of the trial court in that it could thrust of the defendant's argument has become this  so we have about a six month issue correct what if he attended the seminar twenty four months and they get there i don't think so but if they've been there for years i don't think so so i think it's an unfair night  what would you call bright right well i don't think it's private whatever it is what it would fix you what would you say it is i believe that it's a serious if the the the facts have now proven that there were a series of politicians who talk to each other and then they call the police chief of the police chief without talking to and that this kind of conduct is inappropriate yes but my client did not know that it was a crime he thought it was wrong but he didn't believe it was a crime until he had that training he did not know it was a crime until that time and that's what the record demonstrates if you  of feel comfortable in speaking on a matter of public concern no i don't i don't believe that's a standard i think it's actually irrelevant you're largely correct in my my initial say which is i don't think that the temporal limitation even if he knew it was wrong would matter because it's some point or another it's still the public interest to know if they're public officials are engaged in inappropriate conduct whether or not it was today or ten years ago there's still an issue that the public has interest in no whether or not our police departments are operated with integrity i don't think if to look further than the newspaper every day for the past several years to indicate that that's a matter that the public certainly seems to have not more than a passing interest it now w at the time of the stop he was still on probation right he was part time still of probation that the term probation is is almost irrelevant when you're dealing with a part time police officer because unlike a full time police officer they're not entitled to a terminations hearing in front of a port of fire and police commissioners in this case i don't believe they were covered by a collective bargaining agreement so the fact is he was largely an at will employee subject to certain limitations which largely were based on the whim of chief sculler how many hours a week that it were it depended on the chief scheduling of him he have another job he did he worked a second job as a part time police officer for the village of lamont which is where  the village of lamont and then shortly thereafter for whatever reason the village woman chose not to continue to employ my client anymore either so now he works some other employment after much struggle fine in any  event the matter of public concern has largely been i think squarely addressed by this court in its first case and i think that the next issue that was raised and dealt with somewhat evident at a passing level by the trial court was the matter of whether or not this speech was made as a citizen and as carr said he and lee versus franks have made clear broad job classifications broad job descriptions are not sufficient to try to cast the net of employees speech over a person and certainly if they were awed to the job classifications is not enough the new job title isn't enough and the fact that he's a police officer and just calling him that does not mean that he had any responsibility for any of the speech that he none of the speech was commissioned by his employer specifically the testimony without impeachment this is uncontested agreements he had no obligation to report crime to the federal government he had no obligation to investigate his supervisors he had no obligation to do internal affairs investigations the record overwhelmingly establishes his job was that he was a traffic enforcement cop and he occasionally backed up full time police officers when they needed this was not a you would think of a fully trained regular police officer who was out there conducting investigations and all of that sort of thing it was largely a traffic cop who was hired to enforce traffic the traffic cop beyond that the argument about the pickering balancing test i think for whatever reason causing great disruption it almost passes on the offensive there is no evidence that constraining there was any interruption of service of operations or anything in this case there was no evidence put on that morale was somehow impacted really the only impact here is the same impact that occurs any place when an employee speaks out his boss didn't like being called corrupt when he done corrupt things and if that's the standard then there's never protection there is no pickering balancing test when there is no weight on the other side for the employer here as this court is held several times you have compelling speech about public corruption and when public corruption is the speech then there is they have to show a compelling impact and there is none i'll reserve the rest  please the court good morning i represent thomas scully we were here before you nearly two years ago as you know and at that point in time you determine that the complaint should have just survived the motion dismissed that the defendants file i can report to you knowledge that while the complaint survived the motion isthmus process it did not survive the discovery process much of what was represented here two years ago and just now was simply untrue carol marshall why were the would mean there were and there would be no more tickets issued to minority groups right well judge this is you couldn't you could not operate a police office a police department if the police say well of course we we always squire we always squashed tickets if the person is is a member of a minority and says to us covering up stuff well judge i mean your time is bad to be making this argument after what we've been going through in chicago with police cover ups there was this cost you know the was part of this political structure and you know she was a bus driver at the time judge yabba what it be she had been before well she'd been collector and she quit their job to become the bus driver apparently collectors not exactly hind the totem pole there judge mr bradford cohen don't think she's part of the political community of this excessive force and racial profiling these are business offenses they don't require jail and in fact there is no offense there is no penalty criminal you cannot be jailed for driving on rescue vehicle less said registered vehicles is involved in an accident that didn't happen here i would point out as far as the nine hundred seventy seven case mr of carlson talks about let's remember that was handed down in my nine hundred seventy seven nine years before this state and knackered mandatory insurance the mandatory insurance law does not provide for any type of jailing it's not a jailable offense alas the vehicles involved in an accident so they did not have to arrest and unlike the nine hundred seventy seven case judge there is no bond requirement and this particular situation and that guy hundred seventy seven case you had somebody was driving slowly i don't know what you're talking about i'm talking about people versus thomas the cases as i see the case it looks like a case in which a traffic ticket is squashed because the person who got the ticket is part of the political there was no evidence of that kind we asked them to produce sentiments i specifically asked them to identify the favors who did what or why girl marcia used to babysit mr bradford children i mean that's how that relationship that's all part goes back for any type of political and association so this is a neighbor a friend calling a friend asking to do something that their child has been arrested and perhaps it and treated unjustly in her view and judged she was there two days later f think that's proper conduct army you think that's proper conduct i think it's a proper exercise of discretion to basically try to head off a potential loss you think it's proper conduct for people who have gotten  traffic ticket to try to use their influence their friendship with politically with with with government officials to get the get the think that's proper behavior she did not say you answer my question do you think that's proper behavior in terms of bilingual i was you answer my and say oh i'm judge posner and you know i would really be grateful if you question this tickets embarrassing for a judge to get ticket cost money it takes time and you think that's proper behavior he misrepresented well in the complaint they said she was the former mayor of a nearby town she was in the complaint they said that mr kristof it right away was a they do much whether they do is there some statement of what they're supposed to do or you just don't know what rich i can only based on my experience judge township governments in this area don't do hold that's not my question my question is what that that was inaccurate in the complaint but what specific facts did he miss for you represent that have to do with the way this whole thing happened who will first well you know i mean phil smith specifically he said he went to the other office said you know we should report this to the f b i that did the record bear that out his testimony was he was opposed twice he was asked what did you say that he said well i told him that we should report official misconduct memos that talk about him supposedly having a brother who worked with at this gerald that turned out to be true what he has apparently used to we testify to a brother he has a brother in law's brother who supposedly worked with the attorney general's office i never expressed it cheap to be cheap and expressions or concerns about the only go application was never said that he admits that well used it also suggests that his allegations are maybe recklessly but he went to an attorney that is not in dispute right and that the attorney told him to go now listen and to speak the right way actually we couldn't find out what the attorney said we asked him and they took the privilege itself is not what's what's reckless has him basically suggesting the chief violated the law when he had not and despite what mr carlson says he does have a duty to report wrongdoing and he testified as much he admitted as much in this deposition he has that do you think washing take us as a favor is not wrongdoing i do not think if the question is is conducted for some illicit reason yes i agree but if it's a situation we have a compliance offense there's no jail time and you're being threatened with they got an affidavit from mr bradford mr bradford just said i complained about racial profiling period that is the record in the case of sensually i don't believe i have the obligation to basically disprove what they said sculley cannot serve as the predicate for municipal liability first he was not the final authority the in order to do what he was not the final authority final yes in order to be the final authority employee who is in their probationary period or at the end of their probationary period it may be done by the department head with the approval of the village administrators who at the time was john daly and if in fact you accept christof x assertion then the language in the ordinance that states with approval would be superfluous and that's simply not the case furthermore there is also a constraint in the ordinance in subsection c of the same section thirty five point zero one nine which specifies that during the probationary period an employee may be terminated if it is determined that their performance is on satisfactory and that determination of an satisfactory performance may be made by a supervisor or a department head again with the concurrence of the village administrator ordinance here must be followed and they were i'd like to point out that counsel for chris effect failed to answer your question your honor you asked whether or not he was in a probationary status instead they said it was irrelevant quite frankly it's very relevant that he was in a probationary status he was hired in it's september of two thousand and ten and terminated in april of two thousand and eleven still within his probationary period furthermore my second point is chief scully was not the policy maker for the village of arlen hill's she scully does not make policy for terminations he was constrained by these rules by these personnel rules contained in well in this case that would be true the ordinances on section disciplinary action procedures section thirty five point eight zero eight nine specifies in section d to no employee shall be discharged by the village except at the direction of the village administrators depending on an employment status they either get terminated by approval now there's a look at concurrence of the administrative mean does that mean the administrator has to there would be no delegation of that authority on there would be no delegation of that authority your honor that concurrence only applied when they're determining whether or not the performance itself was on satisfactory if we're talking about the section that i talked about thirty five point zero one nine it's the concurrence was not required when it came to the actual terminations that one you needed the outright approval and authority of the village and minister to germany chris again the board of trustees is in fact the policy maker for the village of ordinances they approved and enacted the personnel rules that are contained in the village of ordinances and as such are the policy makers  important because you heard the term business offend several times in fact the motorist was arrested for a class a misdemeanor and it was a state traffic ticket not an organized violation which went chief scully was deposed we went through and he said well i pull business tickets all the time or something like that he pulled in all these examples and i said well i'm not sure that that makes it right but that also does not make it a state ticket that should be issued to the cook county clerk and then handed by the cook county state's attorney and it certainly is not a class a misdemeanor which is a crime it is not a business violation and that's only been clear in every brief we filed from the trial court to this court back to the trial court and back to this court again but about him saying that the other officer should go to the f b i because what counsel said was that there was no evidence that he said go to the f b i he testified to that in one of his two depositions about that and  said you know each it was encouraging his coworkers to go to the f b i and officer rekha bennie in his memo indicates as much that they did he encourage him to go to an outside agency or something of that nature which that was part of the basis that chief scully relied upon in terminating so the memo said outside agency not if i don't remember the exact language but if i can pull it for you if you like mr scrafton cripps you can help me with the record a little bit filed and chief scully found that there was as well and i believe a sergeant gave us was the name of the investigator conducted an investigation and found there was no wrongdoing by any of these officers in addition to that chief sc told of the mother of the motorist who was the one who was politically connected that the officer that this would be handled that there would be discipline issued and there never was discipline issued for this matter so she said he would have signed this to the internal affairs investigator and he assigned it to an investigation is any something do we have anything reflect the what occurred in that i know for a fact that we talked about it and chief scully's deposition which is attached in the admitted that there was no but that there was no finding of any sort of misconduct by the officers in this case and that there was no injuries suffered and it's important to note the motorist himself never complain