call the last of the cases we have this morning fernandez versus the school board of miami dade county principal and assistant principal first and foremost is impossible to reconcile the lower court's application of gaar city with florida's and take charter school retaliation provision you mention in the  implementing plans that effectively utilize the personal and material resources necessary to produce a quality instructional program that is months of to the needs of the identified student population correct so if we look at that job description as the district judge of this case and we conclude that their efforts mr fernando's and mr crystal balls offered to convert the school into or charter school ordinarily follows whether the scope of their duties because it was linked to the leadership of the school we would have to firm the district court's decision when we know your honor has several reasons why that's not correct first of all  the supreme court cautioned that you should not give effect to over broad job descriptions in fact job descriptions do not control the court said rather you rely on a practical inquiry the court did not accomplish practically queen this case all the court and look just at the job description the court also looked at the fact that the speech occurred at the school during school hours using school resources was different in our study says th all of those things are not determinative or there they found of these as the car factors our study says that those things are to be expected when employees talking about things that go on and that that touch on their or their job do the allegations against him that the school board brought and argued with the state of florida part of education and the charges they were brought against disciplinary with that these were not within their ordinary job description in fact they were not part of the job at all and they were accused of abuse of school resources are not here on the retaliation climb we're just here on the first amendment line well that brings up the issue of judicial stoppel and the fact that there flip flopping your honor their argument whatever will carry the day but in addition i'd like to go back to the fact that there said he is being misapplied in this case because this is not a speech that the employer contracted for can direct or control it's not something that is part of the employer we supposed to do it this is a bar to statute right well i mean let me finish my question first if i might referring to section one zero zero two point three three correct that statute provides and i quote that an application for a conversion of a charter school shall be made by the district school board the principal teachers parents and all of the school advisory council thus florida law itself expressly recognizes that the principal is one of five entities that can actually comments the process of seeking a conversion from a public school to a charter school isn't that a powerful in disha that for a principal to have exercised his statutory authority under one zero zero two point three three falls squarely within the ambit of his public duties as a principal no your honor because he's wearing a different hat there's a distinction between principle as a job description and job duties and principle as a designation as a constituency that vested interest in this matter gar said he acknowledges that the that in public employees have particular expertise that's helpful in the public discourse the florida legislature is just recognize that here by including princip teachers this stack which is the like a parent teacher association just listen to americans it gave us and determine at lest of who could seek conversion right but center conversion can only be sought by the principal or a teacher in the school or a parent who has a child in that school or the school advisory council for that school that's the universe of possibility that for conversion yes your honor and what i would what ferdinand as did here he thought conversion did he not he was trying to facilitate that with the c sect but that's a that's a discretionary function of the principle as designated by the florida legislature i agree with that it hard suresh unary in the sense that he's not open to seek and most principles do not seek to convert public school into a charter school but that is a function that falls squarely within his ken as a principle as opposed to a private citizen except there's a distinction between principal and school board employee and principal acting under the statute there wearing different hats and the proof of that is that the stiction of it being discretionary is reinforced by the entire retaliation provision me ask the question differently could i as a public citizen in dade county who pays taxes in dade county say i believe killing in high school in south dade county ought to be converted from a public school into a charter school i don't have a child who goes there anymore i'm not a teacher i'm not a principal i'm certainly not part of the school advisory board would i have any lawful authority to perfect or to put the ball in motion to convert from bad school from public to charter no you have to rely on subsection three a for an application for a new charter school which can be made by any individual teachers parents groups of individuals municipalities it's for a new charter school in new charges not to convert an existing  convert an existing school to a charter school the statute tells us and we're certainly bound by it that there are only five entities that can do it one of which is the principal correct so he's not speaking as john q citizen a private citizen what he's doing that is correct but he's also not speaking as an employee of my maiden county public schools he's speaking as a principal he's he's got that designation but he's not speaking on with a law firm but if they do volunteer they're doing that in as in their own discretion they're not acting as employees of the law firm in this case it's clear that the principal was not acting as an employe public schools because of the anti charter school retaliation provision one zero zero two point three three subsection four a ok which says that no district school board or district board employee was control of a person actions personnel actions shall take on lawful reprisal against any other and against another district school board employee because that employees either directly or indirectly involved with an application to establish a charter school that removes  basis for gar said all together in this case that removes the participation of a principal let me ask let me ask you slightly different question holding course any side sure why doesn't the angelo squarely resolve this case well why isn't that on all fours with this case whether it was properly resolved or not my not bound doesn't look to me like it gets much closer and president no your honor i don't believe you're bound by d'angelo for several reasons first of principals role under the fourth charter school statute which is an independent source of rights remember that in the lane you don't have didn't from him is argue to the school district's associate superintendent that an application for a charter status falls within the official duties of the school principal under florida statute that's not in the record that was a layman's interpretation of the florida statute and what he's talking about is towards principals duties he's talking about discretionary duty under the statute not his duty quote employee again he's wearing a different hat when he's advocating for a charter school under a florida statute that the legislature has given him as an independent power of authority and his discretion or and his part versus his duties as an employee where an employee can control him and tell him what to do again the entire retaliation provision makes clear this is not speech within the school districts control arts isn't it time retaliation prison doesn't say it's not what the state of florida is free to protect certain actions or certain speech that doesn't take it out of or that doesn't necessarily give it first amendment protection there it's a different analysis of whether certain speech or action falls within that anti retaliation provision which which protects them and apparently got the got their job back but it's a separate question of whether it is protected speech under the first then well there's  this case because all of the speech went to involvement with the application to establish a charter school and the statute and the death of retaliation provision is very broad it says and he involved either directly or indirectly so speech in terms of for example calling a meeting to get people together speech in terms of giving people the pros and cons investigating the good points and bad points of charter school bring in a guest speaker to talk about the legal aspects which are all things that my client got in trouble for doing are all under the ambit of directly or indirectly being involved in the application of sabbath the charter school i was a principal not acting in his role of principal employee of the school board given the title of principal only by the school board how is he not acting in that capacity when he calls a staff meeting that a faculty meeting that requires all of his faculty to be present me you are saying he's wearing different h squarely within his school board employee principle hat when he calls that meeting where he advocated for the charter school i don't believe that those meetings were mandatory but i think that everything that he did in that these cases was voluntary and the and the meetings were after school hours with the c sack and any teachers who wanted to attend who couldn't call of a faculty meeting other than the principal and the vice principal i don't know that they were called as faculty meetings mandatory and if they were called they were not called to discuss school business and again this is outside of the scope of his ordinary employment or job duties he's not employed to speak on the issue he could not possibly be employed ploy to issue a speech on the issue of charter school conversion based on the anti retaliation revision because again the employer has no control remember your city ok rational for garcia i interpret that retaliation provision is that he could not be retaliated against if let's say for example he just appeared at a school board meeting and argued in favor of converting the iva to or who are charter school not within school hours not using resources not putting pressure on teachers to support it but argued he could do that at a school board meeting and sell it for department of education ruled that all of his activities were covered and protected everything that they've accused him of doing calling meetings during the school day using school resources using the school email system the florida part of education which it should be given at least some discretion as to knowing what the education code is about said that that's retaliation under the statute that that's that's boy do you want to defend it fully litigated did your client testify about why he was seeking the conversion he i believe mentioned that it was something that he thought would benefit the children and that he thought that he wanted to improve the quality of education at his school right right but that's again that's an amorphous crohn's maybe amorphous but it was certainly one of the controlling  issues in d n a i mean d l fellow went off on two things one there was a florida statute that governed you stablish moment of charter schools and they gave the power to principals among others to seek conversion and to d'angelo admitted at trial that although charter conversion was not one of his assigned duties he engaged in the effort in order to quote improve the quality of education at his school which he testified was his number one duty in his job as a principal do we not have exactly that in this case that is to say your client saying his principal i was interested in proving the all fours with the angelo well i don't believe so for a couple reasons one is that he never said that it was part of his job duties he said that it was his role under the florida statute he also  defense school board consistently maintained players through his principal included pursuing the conversion where the school board has taken one position before the state and another before this court also daniel didn't consider this ruling in light of the florida charter school retaliation provision they never mentioned it and i think that that was simply overlooked and would have changed the outcome and more importantly i think the angelus been abrogated i don't think this this court i was well daniel if you look at the angelo is there any remember i'm bound by the prior precedent of my court unless either we reverse it and we haven't done that or the supreme court squarely and directly rejects the holding and certainly lane didn't do that well dnsbl as part of the eleventh circuit precedent that broadened our city and i believe should be reevaluated in light of lane be frank maybe it should be but i'm still bound by well but he has been we have at least once let me let me finish and then you can help me it seems to me i'm bound by d'angelo unless you can show me that subsequent supreme court precedent has so got it has so if this aerated the holding of d'angelo as to leave nothing left it's not enough to say that they put a new spin on garces which they do in a very different context after all in the lane we're talking about a subpoena requiring somebody to testify before a grand jury which is an obligation falling to any citizen and it has nothing to do with being the principal or anything else if i'm called to d'angelo took our i said too far and i felt no occasion to because it was an inquiring about the conduct of a principal to change a charter school one of the public oficial who was subpoenaed to testify before and similar to what happened in in abdurrahman in the angelo what happened and in the case of bar is that they failed to apply the lame factors first they did not consider that the speech itself was something that the employer could not control command without running afoul of the entire retaliations that you lay may you know said that it the the the the  the focus is first of all that the employee's duties must be speech itself speech qua speech for example couldn't complain about being disciplined for the cut of his memos because he didn't control the content his job was to write w was acceptable to a supervisor that couldn't happen in this case the employer could not command my clients to write something or say something about charter school conversion that they personally didn't believe  have think we have the thrust of your argument a second point on that now if you want to say anymore you're going to have to eat into your rebuttal time council you've saved two minutes for about oh we've already gone seven or half and it's over ok the other part is that speech that's an ordinary speaking on it certainly is not something that's ordinary part of principles job duties at least in miami dade county and according to what i said was as far as the abrogation of  and i believe that that can be extended to d'angelo because the angelo also did not consider these factors which the court made plain were the prime primary should begin primacy plane extent that it's your belief that  case the eleventh circuit directly relied on that authority so it doesn't appear that the eleventh circuit believes that lane abdicate well i said in part i said in part and i think that the distinction is that you have to go back to focusing on again whether the employer needs to control the speech to control its in its employment situation remember that gore said he said that it's its entire rationale is that government employees need significant degree of control over employees words and actions they don't have the right to control over the employees words and actions in this case so the very premise for gore said he doesn't exist there's no legitimate government interest in controlling like my client speech because there's an entire italian provision that prevents them from doing so and the other thing is the focus on ordinary jobs that we went from our study which talked about professional responsibilities to laneway that morphed into ordinary job duties that the focus was clearly now and i think the purpose because i think you're going to have to bring your remarks to a close i will you're not i think the no no i think you have to bring them to a close now ok thank was cited as judge howard correctly pointed out en masse and an obvious which i believe is an opinion that was written by judge wilson but there's a difference between the angelo in this case let me cite one to you and ask you to help me with it seems to me perhaps the most salient difference is that in this case several school district officials concluded in disciplinary memoranda that converting neiva king into charter school was not part of fernandez and crystal balls official duties and they point to six instances in which the school district or other official claimed that charter conversion was not part of their official duties that's correct your honor that school district officials how it's true that i'm not bound by their statement they don't determine what the law is it sounds to me like a pretty salient piece of evidence that suggests that school board officials didn't think fernando's and chris the bar were acting in the course of their official duties when they said they sought to sanction them rector i know that's what they thought at that time and that's what happened in the administered a proceeding that appeared that went to an administrative law judge before the division of administrative hearings and that's different than what we had  yes i believe as the court has argued before in the in the administrative proceeding we are looking at whether there was an unlawful reprisal action against these individuals because they had engaged and had engaged in activities to convert into a charter school and the state stature protected them from engaging in those activities their school districts believe was that there are the activities that they were doing were not part of what their job was supposed to do furthering that goals of the district at that school but they were goldman quote dr fernandez mr cristobal were not authorized to utilize district time and resources to research plan and direct staff to present and vote to convert the school into a charter school question roscoe during the conference fernandez was told that the question of converting neiva king cooper educational center into a trotter conversion was not part of his official duties was he not yes among other things and then it goes on you can take the testimony of mulago rose for nellie associate superintendent for curriculum and states during her deposition that the charter conversion was quote not in fernando's job description correct your honor and that was their assessment he says you want to both way he says for purposes of discipline you want to say they acted beyond their power was not speaking as officials of the school board but now for purposes of this lawsuit by god they fall right in the end put up public employees and you can't have it both way well they're two separate cases your honor one reprisals statute case in state court the other one is whether you have a first amendment right in federal court to be protected no question the context is different but the position taken is the remarkably different it is your honor and we can see that it is because as we stated before that was going when the administrative hearing was held which was a full five david entry hearing the district decision was that they should not have been engaging this activities during work hours because the district was paying for their for these activities the judge ruled that that was incorrect that it was part of their official duties and that this was part b particularly because the statute said that a school principal can engage in this and and the school principal tell me what happened to put what happened  florida legislature gave them your honor they were not the court determined that they were protected under the statute from their activities and they never lost their jobs they actually ended up one of the reasons when you look at the administrative law ju finding that he the only remedy that he gave them was to maintain the current positions and titles that they have and awarded the principal ten thousand dollars for bonuses that the had missed during the time that he was at it i'll try to sign it which is a typical thing that the school district does where individuals under investigation because the only retaliation that is alleged in the lower court decision actually the administrative proceeding was that they were retaliate against because they were transferred to alternative site and they were investigated for engaging in activities to or to school when we come to this court when we come to this court we're looking at it from a first amendment framework where they speaking as employees when they were engaging in these activities for the charter conversion or are they speaking as citizens and judgment right correct why why wouldn't the testimony that was just read by judge marcus at a minimum create an issue of fact for purposes of applying the lame test of whether these these actions were within their ordinary job duties well as the court noted in the in the opinion entered by the district court judge even though the district the employer may see the duties as incompetent with their mission or in conflict with the assigned duties of these employees that doesn't mean that it's still not employee speak for purposes of first amendment protection and their work and they were citing to the out as opinion of this court as president which they're specifically says even if it's contrary even if it's not mandated by employ it could still be employed speech and in this context based upon the acts of the principal and the assistant principal it was clearly employees speech i mean there were setting faculty meetings to tell the faculty and staff the benefits of converting their school this was done during school hours the only person that can set a faculty meeting is the employee the school principal in his capacity and authority as a school principal they invited a lawyer to come in and present to this to their faculty and staff that are going to realize having a conversion mr fragger relies pretty heavily up on the supreme court's decision in lame ursus frank's and this is the this is the important language it says the critical question under garcia that is whether the speech and it is shoe is itself ordinarily within the scope of an employee's duties not merely were other it merely concerns those duties so i mean the accept your argument we would have to say that advocating  convert a school to a charter school ordinarily falls within the principal's duties while at the end of this court said that it was part of its duty by necessity because the state statute said that he could file an application for conversion of a charter school but our opinion would have to say that advocating the converted to a charter school has a duty that ordinarily falls within the scope i think it's a belief that it is me on i think you could say that because not only it doesn't just relate  concern has duties it actually is part of what he was doing as in his because capacity as a principle if you look at the memorandums that he issued all the memorandums that the principal issued in this case and they're part of the record they're also part of this motion for summary judgment that was filed by the school board he was asking for additional funding for that school and that's why he wanted to convert that's cool so definitely he was doing it within the authority in the capacity of the principal and also pursuant to his official duties which is what our city said and what lane did not change i believe judge wilson that you gave an to testify in a court proceeding that that is definitely not within the scope of his duties and particularly when his employment they're not involved testifying in court proceedings so i think we cannot divert from that president that's there and as this court stated in alva's should be should be narrowly applied because it should only be applied in that context where it is clear that it was completely outside of the scope of the employee's responsibilities we cannot say that the principles and the assistant principals activities to convert the school were outside of the scope the only way that he could have those faculty meetings as an authority of the principal the memorandum said he issued were all under the title of principal he was requesting documents from the chief financial officer of the district in order to say how he could build a budget for that school when it is convert had nothing he wasn't speaking as a public citizen he was speaking as as capacity as the principal of that school and furthermore if you were to continue as the principal of a converted charter school an individual doesn't mean that they're part not part of his ordinary duties you don't have to prepare a budget every day during the process of being a school principal but at some point you may have to and that the that means it's still within the orderly duties of a school principal but the regularity would not and the has no case law that says that the regularity of those duties is what mandates whether it's within an ordinary job duty and in this case i would submit to the court that it is part of his ordinary duties because it is actually stated in stature  something that he can do and hasn't the out of his case and in the mosque case this court said that just because a duty is not mandated or even purse or even allowed by the employer doesn't mean that it is part or not part of its ordinary duties the same goes to whether the  district took a position in the lower court case that said that these were not part of his duties and by the way the traditionalist aapl argument was first raised in a reply brief in this case that was never argued to the district court judge so in that sense  considered as prevailing in this matter i think the court is clear in terms of what the controlling president in this case and how the angelo is so much similar to the facts of this case because even in the angelo the motivation that the principal states the opinion for wanting to convert to schools that he wanted to get additional funding in order to better serve a student's same motivation and reasons given by the police in this case they were using their authority using their position all of these activities they took were pursuant to their professional responsibilities and within the scope of their employment it cannot be said that for some reason that these activities were not or do not constitute employ speech for purpose of first amendment and because they are employed speech there are not any discipline or any activity in this case they were not terminated or actually suffered any severe discipline except that they claimed that the transfer and the investigation was  discipline even if that were the case and most of the first amendment cases under garcia and even after lane all dealt with employees that were retaliate against and the court found that even in spite of the retaliation or any disciplinary action they were not protected by the first amendment and i don't think this court should receive from those presidents and it should go and continue to continue to uphold d'angelo and it's private and the other cases word as far as the ticking different positions one form and the other the district court that short shrift saying that it was the subjective belief of various individuals that's not correct that was the testimony factual testimony of the supervisors of my clients  again in the employer employee relationship the employer through its supervisors tells the employee what their job is if the supervised just like your job was not to convert to a charter school that's a fact in the record that they testified to as in their capacity as the administrators judge said in another sense is controlling on anything we say but i thought the administrative judge said that the seeking charter conversion fell within the ambit of his at you know i don't believe got it that it was strictly on the retaliation aspect and also you know they're trying to pass that off a some mistake or some misapprehension these are high level i mean district level superintendent level supervisors of these schools telling the it's telling the hearing officer what they know for a fact the school principals job to be it can't be disregarded this and and  it was the lawyer arguing the opposite before the state and that was are doing it here so he knows very well that he argued two different things as far as the independent obligation  there can be independent obligations besides employee obligation like the obligation to testify truthfully this is another area which is an independent source of obligation the state statute is an independent obligation it allows the principal to uses inside information as it were to benefit the population as far as charter school like any employee who has inside information for example is a whistleblower benefits from that position but isn't doing so pursuant to his job as an employee he's looking at the best interest the students as a professional but not as an employee of the school board because what he's doing is actually against the school district's interest he's trying to remove students the full time equivalency the property plan equipment the teachers the staff everything from the control of the school board it's i mean it's it beyond belief that you would say that that's within the ordinary that speech is within the ordinary job duties of the principal to say that the idea that the speech was made in course of my clients were job duties is absurd to suggest that talk of mutiny is made pursuant to do the job duties of a sailor he was at a school board meeting was asked about conversion of the charter school of need a king to a target school and he spoke against it would that be within his ordinary job duties no it would be something that he has a right to do independent of his job duties and by the same token the school board couldn't tell him what to say one way or the other when he was past the microphone what if the school board was again i mean in this case school board definitely has a policy against charter school conversion provision says he can't be retaliating as if there is if there's a petition and he's involved that directly or indirectly he has if he says i'm against the petition or i'm for the petition that's totally an independent right separate from his ordinary job duties speaking and that is in no way an ordinary job duty and of the other thing as far as the outcome you are curious about the architect and have a minute to talk about that just tell me one in one sentence counsel because we've really gone way over i appreciate not part of the record evidence but i was just curious they took a ph d and assistant principal put one in the bus warehouse put the other in the store's warehouse basically put them in exile the outcome of the mystery of action they did not get reinstatement to never king cooper that killed the charter school movement at that school they were reassured they were school where they were in stated as principal and principal assistants the principal but the assistant n the chilling effect was accomplished that's that's the i think lee i want to i think we have your case thanks very much and thank you is court will be in recess until nine am tomorrow morning