stocks robinson  complaint is considered and read in its entirety and if it is considered true and viewed in a light most favorable to him as the nonmoving party in this section t six fifteen motions to dismiss it has to stand a very simple matter of pleading to the stage the presumptions are in favor of mr sweeney as the  that mr sweeney got into the city managers face mr gleason and told them where to go none of those facts are in this case none of them are in the clear yet that's the view of the complaint that appears so facts were not presented to the trial no they're not in the complaint your honor and that's the what the court was to be looking at i think and what w considering here again there to be assumed true and viewed in a favorable way to mr sweeney is the nonmoving party well i'm a little confused about if those facts  probably read or and their characters that i would call them characterizations but there is no there are no words no characterizations in the my life that ultimately leads me to conclude and i we've reached this it is my belief that the court ultimately resolved what would be the ultimate issue of factor if you're in this case which again is something that the circuit court acknowledge that it shouldn't do and it could do at this stage of pleading but yet decided that apparently based on its own characterizations of  mr sweeney is the police chief could be terminated and that there was just cause for doing so when that clearly all as all the cases  indicate is not the province of the court at this stage i'd like to talk a minute about the two counts the first one is count one is the retaliatory discharge the common law  we believe that this count is very similar to the theories of palma tear collins case and in fact the the public policy that you see in the l my whistleblower act itself which is to promote the protection of employees who report wrongful but they believe in good faith as wrongful conduct good with all due respect this is not an expansion of anything that the supreme court has ruled if you look at the paul materialization it's basically a whistleblower it's followed two or three years after the the supreme court decision on worker's comp in kelsey the motorola both of those cases where the law from the eighty's the early eighty's up through when the whistleblower act was and it was passed two thousand and four been amended two or three times since then but basically numerous cases your honor have gone forward on both theories ultimately the jury can determine which if any  and here the two counts are not the same either because the basis for the common law count number one one of the bases is free speech add an objection to additional taxes for the speak as opposition to more taxes as a basis for his termination completely and comprehensible the order says it's not there but what about the whistleblower here isn't  complain to the higher authority who is the guy about whom your complaint the braincase your honor speech to that and says that if a an employer under section fifteen b of the whistle for act which is what brad sweeney's complaint was brought under count two was brought under he alleges that he reported or disclosed information which is precisely what the x said he must do but in bahrain i mean there you have the plaintive having a complaint with the mayor who had oversight over the police chief right here and if you were to apply brain it would be fine to complaining to the police chief about the police chief's actions not planking complaining to the mayor's brame the really is the classic whistle blowing scenario what you it isn't precisely the same but brame's with the decision in brame was that for the first time a court looked at the plain meaning of the only whistle for act to see what is what it  constitute what would be the standard of fifteen b disclosure if the i'm your employer was a government or law enforcement agency and here that's precisely what it is and this clearly a disclosure to a government agency or a law enforcement agency it meets the standards so complaining to the guy who is the wrong about his wrongdoing is enough of the whistleblower absolutely if it's your if your if it's in a government what is it going to be sense it makes sense in the sense that because the primary purpose of the whistle or act as this protect the employee who discloses information who would need protection more than a government employee reporting to his supervisor which is mandated which is required his report was to the city manager gleason no one else according to the city code indicator so who would need protection you're out or more then but the heart of swearing is to have you complain to somebody to have something there could be done if you're complaining to the wrongdoer why does he how does he think anything's going to happen of this he can complain to the mayor go to the city council maybe even go to the promise but when you're complaining to the wrongdoer that covers your into the act it seems to me that just you know blown the whistle on publically or even internally or to anyone who could do anything about it from two years ago someone don't we have no decision which is held the complaining to the wrongdoer of his wrongdoing is consistent with the whistleblower the act is designed fifteen b and the entire act to st louis in the squad car after he was ordered to do that so he complained that the court chose not to chose to bring it up in the order mentioned it but said basically dismissed it as not being important but yes the primary allegations in the complaint were that he reported this to his supervisor which is what the city code says he has to do yes could have reported someone else incidentally reporting it under the act under the plain meaning of the act going to the herald tribune newspaper indicator would not suffice it has to be a government or lawyers and agency part about the matter there are all kinds of possibilities you could have gone to the was as we've argued this in the circuit court it's a disclosure either because based on the based on the record in this case mr gleason says that he can do anything he wants he has no restrictions under the city knows he disclosed the wrongdoer so close this disclosure well he it is a disclosure honor because apparently he didn't know that there was something wrong with it apparently city manager gleason claims that he didn't know there's anything wrong with using public facilities and public resources and personnel for his own personal benefit now if that's the case it was news to him it was a disclosure of information be him and it ought to be protected under the whistle blower act and we are asking this court to find so find that that the reasonable and plain meaning of the act is to protect the whistleblower it is not to cause an investigation if you if you consider in that sense that the section twenty which the court said section twenty which is refusing to act also applies here and so not only did m sweeney have to allege that he disclosed information about whistle boy activity or wrongful conduct the court below said that sweeney must also allege and prove that he refused to participate and that's not the law section twenty is an entirely separate section of the act and start to go opinion you would agree you did not look section the section absolutely agree with that absolutely we didn't try to agree with that we said that he did he did not bollen terribly cooperate he challenge this much like the collins case in the decision in twenty thirteen that the second district but there there was no report again it was a turned out to be a common law case but it went forward here the court is basically preventing mr sweeney from going forward and having his day at trial in court fact that it was not proper yes because as i and i if i may quote the exact provision fifteen b of the act you know i was for acts as an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency where the employee has reasonable cause to believe that the information discloses a violation of a state or federal law rule or regulation there is the word disclosure is fraud the word information is fraud but i would submit to your honor that it doesn't that the act does not require an brame act is clear and plain on its face it's fraud on its face in the sense of information that information could be that mr sweeney said i believe you're breaking the law because of what you did and that's as i understand it that's what's going to lessen that's what was said to mr gleason by sweet that's information the act does not require that he prove that it was unlawful it doesn't require him to arrest him it doesn't require him to go public to the newspaper it just requires a disclosure of information and again the main purpose of the statute is for protect the whistleblower and if this doesn't if this isn't a situation not unlike hallman tear from the eighty's then the act will have no meaning prove whether or not he was retaliated against and in a sense yes i am saying what your honor asked but i hope i'm saying a slightly different way i'm saying that we need to get to the next step which is sweeney ought to least have an opportunity under the pleading rules of the state of illinois to get to trial but the fact is he didn't blow the whistle until he was fired th right no that is not the facts the facts are your honor that he blew the whistle when this was happening the complaints from civically says that in may of twenty fifteen or twenty sixteen when this was happening the all kinds of opportunity for him to blow the whistle he talks to his deputy chief and he's not required to go to the newspaper or to go to anyone else under the plain meaning of this statute and i'm decision which was which was completely misinterpreted by the circuit court to rule to hold that sweeney had to not only disclose information but also refuse to participate a complete misinterpretati every circuit court whether that's the second circuit binding on our history and that wasn't followed years so i submit to you that what what you see from this that sweeney didn't ever really have a chance to get a fair look at his from play and again all we ask is c knowledge of this potential offense he does not then decide to actually say anything until after it's happened and he reports to the file later itself which we submit is not a violators not a whistleblower that would qualify under the act or look at it in the plain language of the statute if you actually accept it as written and accept their interpretation of  he could have stood in front of the mirror and said listen violated the law and in the strict language of the statute he would have a whistleblower offense standing in front of the mirror and telling himself but what we have here is the collision of two principles two statutes actually do policies he's the chief of police and we talk about a two six fifteen motion and the ultimate facts alleged we have the ultimate fact which is entirely dispositive here he is the chief of police with a statutory duty to enforce the very law that he now wants to shield himself from doing anything i recognize the whistleblower act is intended to be a shield but it's intended to be a shield if you take the risk to do something about the offense not if you simply lay on the ground and put it over your head and it has become now a sword for after he's been he would not be able to make a fine mother that was blower depends on the timing under the facts of our case but for purposes of having a qualifying disclosure there has to be for that element and people when you're the chief of police who better would know where to go than the chief of police because of the alternatives really somewhat nefarious is that the chief of police when obligated to take these acts more so than anyone else can insulate him self and protect his job which is why we submit these facts show and the ultimate fact allegation that he was these and the duties that that trigger if we do not place a primary or prevalence to his duties under statute as chief of police and allow him to still claim whistleblower protection the whistleblower protection really becomes meaningless is that the chief of police who doesn't report it there's no one ever going to enforce the law so if you tell the chief of police and the chief of police going to have protection you have just guaranteed that this is a dog chasing its tail and the law will never be enforced and that's why he has to go outside of the vi lator to person wanting to blow the whistle and it's only complicated here when we have the chief of police who has the duty to enforce this very law is the romance and referred to certain things the court's order which w  and the city department had meeting and the declaration to speak to the city council happening in the few days prior to the term nation decision the express language we also have down below which we believe is and another basis to affirm the judgment below this was a two six one thousand point one motion and there was a large body of  evidence removed cereals germane to the elements of that so i would anticipate that what has happened is probably some of those facts of polluted into the actual order is how i would  complained to the mayor and not to the police chief is that correct those are the facts in the very first paragraph there are two distinguishing facts from brain first the what i call the leap frog whistle blower you just have to go to the whistle blower but secondly it was regarding his discovery of conduct that already had been committed here mr sweeney had knowledge advance knowledge of this  wedge improper acts and because he had the advance knowledge we truly have a section twenty case he wants to call the section fifteen b case but he can't he had prior knowledge and he says that he and voluntarily allowed you know whatever that means allows it for means it happens and you know what happened and he had knowledge and it was his staff under his command that drove the car cur now the significance to the prior knowledge before the offensive even occur is one it puts sweeney only in a section twenty context but also to ask yourself we have to harmonize section fifteen b in section twenty otherwise we're creating an incentive for in this instance the police chief to see a gathering of fats attorneys back to  wait for to happen and then complain about it because he's got a broader remedy under the whistleblower act that he would have had a very statutory duty we first learned about and that is of the court relying upon section twenty and the sardegna interpretation of it saying that you cannot participate and you can't be a mere complainer someone who tolerate it that you have to be do more than  that to secure the protections of the whistleblower and mr sweeney has none of those indeed of doing anything to try to protect himself or to bring about a change in what he believed was  either threatened or actual wrongful conduct assuming what he alleges to have even occurred i'd make one other note while i'm on this his allegation as he made the distinction that  not you are violating section six point four of the municipal code it is not a disclosure that that violates this criminal act that federal policy whatnot there is absolutely no contents to ea disclosure to bring him in within a whistleblower act so this even becomes more amorphous as we review and seek judicial review of every terminations that may occur because anyone can say well i've complained about telling him what he's doing is wrong you have to then tell him what is wrong with it and i would submit that it is entirely consistent with a plain reading of the whistleblower act tell us the rule the regulation tell us why and what it is wrong to put some burden upon the person seeking the protection of the whistleblower act otherwise i fear this act as apply as mr sweeney would see is virtually limitless and it is going to invite judicial review and determination decisions on a very very broad basis and their interpretation of the whistleblower act if i'm a lawyer and a police chief calls me and they get the interpretation of that act they want today and the chief calls and says hey the mayor's doing something illegal i think they're going to do something illegal what should i do i as the lawyer would look at this and say do not wait for to happen then complain about because then you have the broadest remedy the broadest rama protection but at the same time are the police chief and the whole idea of this should be to prevent this wrongdoing we are disincentive izing proactive efforts but serve the very purpose of the statute and i submit that that is where i would be as a lawyer counseling clients if we get an opinion of the nature that mr sweeney sees on the the common law whistleblower first  think there is a discrepancy or differences in some of the opinions whether the whistleblower act is a codification or an expansion of the common law whistleblower i think for purposes of resolving this case it really would not matter i would view that the act is probably the more expansive than what the common law remedy would be but here if while the act is the improper act all to mostly is the misuse of public funds for persons benefit that's official misconduct in the fall our opinion already is stated that the toward retaliate or discharge is not available for that to vindicate that particular conduct and for those purposes  constitutional violation the first amendment right and barbie cal so is the one time that the illinois supreme court you know was in a private employment context has reviewed whether they would extend speech protection within the four corners of retaliatory discharge play and they declined to do so and in the sutherland case which also is sided i think in both of our briefs a indicated that the illinois supreme court that appellate court the law supreme court has declined to recognize that expansion every supreme court case in illinois that i recall the last ten twenty years turner of the one sided in my brief are highly of cautious about expanding the tort of retirement or discharge and in fact are not expanding so we have no illinois authority that recognizes the speech playing within the realm of retaliatory discharge it's meant that this is not the case to do so so then let's look at the actual facts of what we're dealing with in this in this speech the occasion only because he's a city department head he's in an internal meeting of city department heads the only time he's made a statement and that's where you have a rob free exchange of some of the aspects side of the courts brief that occasion is not speaking as a private citizen that occasion is him he's at that table only because he has his public job  these are the principles that we believe the garside e k g s up so his occasion is purely because of his public position discussing public issues within the body that is going to formulate the the city manager can assign him the duty of speaking as police chief in advance of the policies of the city and the city manager sets the policies and if he's an employee speaking as a police chief if you want to go on facebook if he wanted to go to the city council meeting and he's own status as a private citizen without the badge on without the indeed of the public office and say i think this is a bad idea he had every right to do that but he also is an employee of the city and he is one of the policy makers within city government as the department head one of the benefactors and find out why this particular tax may have been earmarked as a member of the public i don't support yes yes he can and there's a distinction there there is a distinction because in the first instance he is acting as an employee of his boss he's an ad will employee who's been given an order to advance the policies of his boss the city manager and of city of decatur the garside inc a speaks to that is that you know when the occasion for your speech  furtherance of the policies of your employer then that is not you can be subject for discipline if you are insubordinate and do not serve the policies of your employer all public employers all public employers have the concern about public finance public finance can only come from the public and it there is always going to be some discussion some interface between what would be a public statement but it is made in your capacity as an employee of the city and as the municipal code empowers the city manager to give the police chief those job assignments now here we're not really dealing with speech here we're dealing with negative declined to do a task that his employer had assigned to him within the scope of his job scription under the municipal code and on the policy of the city directly impacting the operations of the  so the occasion for that speech was directly an expert i believe related it wasn't like he was off speaking on something not occurring in the city had needs for example say someone was terminated by the city manager and you went to the city council to complain about that and that wasn't part of what you were involved in in their comply he's part of the group a city department heads that were discussing this art has in the city manager arrived at a policy decision that he may have disagreed with individually but still that employer is intitled to have those department heads and those employees to speak in furtherance of the policy that was staff not to allow the dissenter to always stand and frustrate the employers policies and really that's what he say i should be forever protected as at the cen its employees to speak and further its end of the policies established by the public where and here the occasion for the non speech that he decided not to may was within that ha been his other allegations and his complaint right before that are i'm in the meeting where we're talking about it we decide or policy they asked me to speak in furtherance of that policy and i refused and he just it's his way or no way and that's highly frustrating to the at will doctrine and public employees are entitled to those protections as well thank you thank you for your argument you thre two or three of the points first council started with the making a point that it was seven months later before mr sweeney registered any whistle blowing i would direct your honour's to paragraph seven and eight of the complaint where it says on about may for the twenty fifteen the manager told us we need to provide as a police car to uniformed officer to drive him skip down in response sweeney reported to police and that this personal use of public resources would be improper that's all that's required of the common law by the way at this point police an order police chiefs we need to have a police car waiting at the civic center on may the seventh the implication being if i get a police car and driver i can speed my way to st louis the next paragraph paragraph eight is an allegation about the discussion between sweeney and his deputy chief gets about the same topic council mentioned the fella our decision your honor wanted to make a distinction and there is a difference between the facts in the brain case all of theory is the same i would submit that it's a matter of reporting all you need to do under the plain meaning of the act is report to your employer if you happen to be a government or a law enforcement here sweeney was both he was a member of city government in a sense but he was also a member of this decatur city police department he reported as he was required to to his supervisor the fellow our case said there was relied on heavily by the city here is n applicable in the sense for two reasons number one the supreme court in that case said that mr fell howard did not specify with any detail whatsoever the specific law that he was claiming being violated in this case if you look at paragraph ten of the complaint sweeney specifies several laws that were violated by this  this both in our opening brief and in our reply brief barbie kelso is a statement by the supreme court that implies repeated flee that free speech applies knot employers and that's what you had in that case it was private in one it implies that it will apply lastly i would like to and this is in our reply brief of the case of daniel b hoffman estates is actually an a both of the counts i understand the troubles from the questions that you've asked about a literal interpretation of the plain meaning of the oh i will savor act but i submit to you that th that there is no justification in the plain meaning of the statute to require him to both refuse and to to plead disclosure and he's done that we have to remember this is a section six fifteen motion where all he has to do and it's presumed that this allegations are true and if they're taken as true and if they're viewed in a light most favorable to him he ought to at least get a day in court and if he can't prove it then he can't  we ask the court to reverse this i mean there are so many other issues that i could go back to like the fact that the circuit court failed to to even acknowledge that he had plaid free speech that the al or even discuss in the order that he had pled whistleblower as a common law basis we've discussed that here today but it's nowhere to be found in the courts or we've discussed the fact that the court