to them for the st one is the district court's decision that the plaintiffs were not entitle him to the protections of the st amendment because according to the district court they were speaking in their official capacity as employees when they contacted the state's education agency and discussed their concerns that the school districts of ministration was violating a federal regulation in implementing section five hundred and four of the rehabilitation act and this decision that they were acting in their official capacity was despite the fact that when they contacted the texas education agency they were not directed to do so they were not expected to do so and they did it without the knowledge of any of their supervisors or superiors let me intuitively that just it's hard to get there i mean intuitively somebody is in their job they're doing their job they're in the school they become aware of this because of their job i mean it's not like they're at home they're sitting on a sofa whatever word it inadvertently samini to and it really i know you're going to go into the facts but i mean intuitively to say that of information as a result of your employment the fact that you don't talk about that information does not mean that you are doing so pursuant to your employment and the question is not how you become aware of information in fact the courts have stated that in cases involving education the best people to become aware of improper activities are the educators and they should be encouraged to say that it's not dispositive that you learn the information through your employment but isn't that just one factor among several that we can consider under the case law to determine whether they are acting privately or as an employee well and the determining factor is whether the action of the discussion or the complaints from educators it is the chief educational entity in the state of texas that oversees education of every school district i mean it's part of the schematic that set up by tech the texas legislature or for the administration of schools is that correct well yes and if an employee has wrong doing to report that would be the natural place to take it as opposed to like the texas rangers or the f before a local t v station or a news reporter or any writer because those entities do not have the expertise that the t s a has to say you right now do something about it or you're wrong we won't do anything about it but  big concern in this case as a matter of st meant speech is that the plaintiffs had a right to bring it to the attention of the team and the reason they had the right to bring to the attention is because the case losses and in fact the andersen case out of this circuit court makes it clear that the key factor is whether the communication is one thing employer had the right to come troll whether the employer is doing something that the employer has a right or whether it's appropriate to say you can say this you cannot say that and if the employer has no right to control the communication then it's not made in their official capacity as an employee i whether they this was an action taken outside of the agency it was not something that was pursuant to part of their duties in fact according to this court's decision the key factor is whether the speech the control of the employer it absolutely was not in fact there's a long tech just the prohibits the employer from interfering with the right of an employee report unlawful conduct it's called the texas whistleblower and if you take a look at the records excerpt on page seventy one disc court and made a decision in this very case on an interlocutory appeal where they say this court stated that the school district claims that it is clear from plaintiff's own testimony that they were not reporting an act of a violation of law that's what the school district claimed they were seeking validation of their prior actions for the purpose of protecting their jobs in light of the serious allegations they were facing powers normally respond that their testimony reflects that they reported section five hundred and four violations the district court rejected and i asked these argument noting that a jury not because is best equipped to make the credibility determination resolution of that argument requires and so this court did not interfere with the district court's finding on that matter that it was a question of fact as to whether they were forming a violation of law or whether they were reporting something for their own self interest now how someone can be a reasonable or at least a district court held there was enough there to carry this case over for a trial of the whistleblower violation and yet at the same time not be enough to support an action for free speech is something that official duties you know i thought of an example the might help their father situation for example if mr powers or ms when we were the district public relations cordon later and they were charged with sending out press releases that part of their job and in their press release they say something like the district it real well in testing this year and then added but by the way the administration violated the case the district might be able to claim that issuing that press release with information they had the right to control and regulate through its own platform was something that they can sanction now the fact that we don't agree in fact that's one of the things we have an appeal here we think it is a matter of the law it was a good faith record but whether or not that control was it does not apply at all to the  amendment or human the st amendment does not require a report a violation of law requires just a discussion of matters that you have a right to discuss and as a private citizen no matter where you receive your information from that you  discussion and have as of what was the purpose of going to the state agency purpose going to the state agency was that there was a child who was being denied in the opinion of my client's the reasonable accommodations for his disability and the school district was not allowing those reasonable accommodations and so he went to texas education agency to report that in our opinion the school district is not following the law and the heat at that point would have the right to investigate the situation and to take actions and in fact impose sanctions might not be likely but they could at least say this is the way you need to do it was school district agency to confirm that they were correct and you know they went to the state agency and yes it would be nice if the state agency had confirmed that they were doing it right the main point was to make sure that it is getting right after contacting terminations and going for you know my clients have the right to a fair hearing which they can show that there was no obligation for pretext they were brought up they were created as part of a quote witch hunt to try to find a reason to reach a predetermined  exercising their job responsibilities vis of the special ed students etc without the appropriate gallant and so poor and then there was information about them shredding documents and all this other kind of stuff that was there so you saying all of that was pretextual in response or retaliation for this report that's correct and my clients have a right to resent those facts t all right this would one hundred and six thousand students and dr bryant he would serve the last year as the state superintendent of the year and was also one of four finalists for the national superintendent of the year who argued joe i want to tell you that  your honor because of the fact that these folks are i'm proud to be here on their behalf and also because of the fact that they this is not on unsophisticated school district this not of the school district where the people are not trained court has taken note of the factual history one of the most significant parts of the factual history was that initially the st indication that there was a problem at all was in june of two thousand and thirteen and a five a fork ordinator for the district was reviewing paperwork related to the start was and she realized that a student was going to be given orally ministrations darkest even though they had never been provided any types of services and four they had never been admitted to five of four and importantly they had never received any type of response to intervention now you might say well what's the problem with giving somebody an accommodation that maybe they don't need and i think if you look at that it's pretty self evident the goal is to teach them the skill i think of the illustrative example of if a kid comes into kindergarten and can't he can't tie their shoes it certainly would be possible for the teacher to say well jimmy doesn't need to tie his shoes because any time going todd i go in tie them for him and then the next year in st grade when he can't tie his shoes the problem arises again and somebody asked about it and they say well his st grade teacher tighten for him and they say well we're providing him with an accommodation fact we send somebody out to recess or to the lunchroom with him the goal is we should be teaching jimmy to times shoes we never tried any responses to intervention with respect to the student the before just indicating that we were going to move him into five of four and provide this horrid ministration of the state assessment tests and that's problematic and she pointed out that that was problematic it seemed as if there was some intent to circumvent or game the system the the scores at adamsville elementary where these two people were administrator were problematic and they knew that and the fifty who are program was problematic and they had files on that campus they are told at that point they are called in and placed on administrative leave they're told not to interfere with the investigation not to contact and communicate with anybody related to the investigation at that point they did several things in the record is clear the independent hearing examiner i'll get to that process in a moment but the independent hearings and they're found that they began to engage in some very egregious behavior they began to manipulate documents they shredded documents they destroyed electronic files they created new files to to suggest that they had been in place before and they backdated those files they obliterated information later you'll find that in the record also that they communicated with people to talk about the investigation and there were some other issues but this is all going on and the spread ministration is meeting with mr powers in this warningly in trying to get input with from them and trying to explain to them that you have just done this completely wrong you have not followed any procedures that at all we can't understand higginbotham recognise and there are number of votes and citations from their testimony both deposition testimony and the deposition testimony that was brought prior to that our motion for summary judgment which she said says i'm reaching out to to try to get some help i'm trying to get them to validate that i've done this the right way she even asked if there's somebody who can intervene with the district on her being asked to explain that she's done this the right way same thing for mr powers and that's what you see in the record she is very much within the context of trying to maintain her employment and acting as an employee of the district trying to get some assistance as this is very much like reaching out somebody within the organisation during the course of bringing an internal grievance she's looking for validation he's looking for validation and and again there are numerous examples cited in our brief so i know that the court has read those and that's the nature of those of those  communications with t s a they keep talk about talking about reporting and modulation law the testimony largely is about this getting assists but i want to talk about the the violation of law separately  moment so while this is going on they're given their opportunity to speak to the district to explain their procedures but they're telling we you have not done this correctly this what you're telling us is not right that's not the way  and ultimately the superintendent looks at the situation and he says look you're not giving me an adequate explanation on appropriate explanation and you don't seem willing to acknowledge that the procedures have not been appropriately followed if you could acknowledge that the procedures are not appropriately followed them perhaps you could you know we could remediation this issue whatever but but there's just a steadfast refusal to take that responsibility anyway the combination as the investigation goes on the stuff like shredding documents back dating documents that that's coming to the superintendent's that it attention and then he realizes this is not just mistakes on five of four procedures this is actually an affirmative attempt to cover up the actions that took place and then there are other things that are uncovered during the investigation like the fact that mr powers was told not to continue a cheerleading program on his campus and yet he did none the less so as all of these facts all these fairly  just circumstances are brought to the attention the superintendent superintendent says this is not somebody that we can have in charge of educating our children these are not the standards i mean one of the things that we teach kids is that you've got to follow the rules with respect to the test that these the procedures on these tests are you know there are very regulated very strict with respect to the rules if the teachers are not going to follow the rules and what how can we expect the students to learn from them that that is something in order so in assessing the entire situation dr who it's makes a recommendation to the board of trustees the panel of the judges are aware that in texas we don't simply fire a chapter twenty one educator chapter twenty one employee what we do is we make a recommendation so mr dr woods made a recommendation to the board of trustees that the board proposed the termination vote to propose the terminations and when that happens the educator has the right to request a hearing before an independent hearing examiner within the state of texas not somebody within the northside in a school district but they have a right to go to t a and say we want you to assign an independent person to come down and condemn conduct a full evidentiary hearing with respect to whether or not good pauses for the terminations of our employment after full discovery after being represented by counsel after giving their depositions and having the opportunity to take depositions do in iraq towards the full blown opportunity that we would get in a in a standard state or trial or federal  trial they appeared before an independent hearing examiner and for four days testimony was provided with respect to the allegations against them at the conclusion of that the independent hearing examiner made findings of fact he made conclusions a law and he made a recommendation to the board of trustees that the board terminate both of their employment relationships based upon the fact that there was good cause the findings of fact are consistent with  i've articulated this morning that cheating gaming the system in fact if you read the independent hearing examining examiners opinion you probably be hard pressed to find and in opinion hearing examiners opinion that is more scathing with respect to how egregious the conduct of the particular educators was that recommendation those findings from the independent hearing examiner were taken back to the board and then the board of trustees the seven trustees from their side and the school district was presenting those findings of fact those conclusions of law and the recommendation of the in of in hearing examiner they heard argument from mr representatives for mr powers and this w only heard arguments from representatives for the administration and then they voted to excuse me to terminate the employment of both of those individuals one of the huge hurdles with respect to the commissioner of education and that would have allowed in the opportunity to articulate that there was some sort of irregularity with respect to the procedures that somehow the independent hearing salmon or didn't consider evidence that he should have considered evidence that he should not have already done the kind of error that they might have chosen to complain about there really wasn't and i think that's evident in their voluntarily voluntary withdraw of that particular case then instituted this case but from that point on at the point that they voluntarily non si to their state their state or i mean their appeal to the commissioner they were bound with the findings of fact made by the  brief articulate the support for that they were bound with the findings of fact they were bound with the conclusions of law and they were but bound with the recommendation that the independent hearings stop that officer made now one of the things that one of the question with that was asked was what is the difference between the free speech issue that was not tried in front of judge sparks and the whistleblower issues that was tried well frankly there's not i mean there's really not a can think about it it's the same telephone calls now they're focusing very much they're focusing very much on the fact they're complete saying that they're making complaints about law about violations of law about mis application of five of four towards the student j b but but the call something we you can see from the context of the briefing that both parties what was said in the calls and in fact judge sparks notes in his ruling on a motion for summary judgment that they really don't address that issue very much that it very much appears that it is seeking relief on their own behalf that they complain that we cherry pick the portions of their deposition and then they say judge sparks was correct when he ruled on the st amendment issue he was correct in the sense that they were speaking in their professional capacity and that's not protected under garci even if they were the court this court could reach the same result in the sense that they were not speaking on a matter of public interest they are talking about their personal employment we saddam of cases with respect to the proposition that when you're talking about internal grievances and how this relates to my job  mindful and am i going to get fired that's a matter of personal concern not public concern we also cite cases for the proposition that they never went out and broadcast to anybody in the public that your side in a pin a school district misuses five  four misapplies fifty or is is spending money with respect to follow for in a way that's not appropriate under the statute they don't make any of those kinds of statements they make these statements these particular statements only to  would article where we would suggest that those are very much self focused focused with respect to their own interests and not with respect to the interest of the public at large and then the other thing that is going to be a hurdle here is that we have a jury find him with refect to come online as to whether or not the school district took any action with them with respect to complaints about violence  they got the private whistleblower complaint in full and they articulated to the jury that they had made these cost it to t s a and the things that they had told t a in cleaning that they had reported that five before was being of law to an appropriate law enforcement agency and the evidence was overwhelming to the jury and the jury's conclusion was unanimous that they did not and so it is very clear that the jury did not believe that they had reported some sort of violation of law and that violation of law had resulted in some sort of retaliation they just did not find that there was a report of a violation of law in the last point in a palace brief they address the issue of that depth ticket thing i do just want to note for the court that obviously there was no motion for judgment at the end of the presentation of the evidence  so therefore they didn't present any error with respect to that finding of the jury therefore this court reviews it based on plain error is there has been basically there has to be no evidence to support the finding it's very clear that there was significant evidence in the record that the court has seen this that it appears that they were reaching out to try to defend their own positions not bought not reporting violations of law they talked about getting an advocate or some represent coming appear on their behalf within your side to help them save their job and so we think that the evidence then is is supportive it's clear that there is evidence to support the finding of the jury based upon that and the issues that have been addressed by purported violation and again in this instance i think is he is particularly distance from that because he makes a circular based in the board and i'm not saying this by way of insulation i'm saying that the board then itself cannot make that isn't as it exists at this time the st rd of throwaway issue that i can't discuss them on fifteen minutes or the five minute rebuttal as the court to read the issues carefully which are clear that the plaintiffs do not believe they have ever had a fair opportunity to try their case the terrible things that mr wood has just told you about and my clients and not have an opportunity to put those in context to show that they were retaliatory show they were brought in bad faith in fact the hearing examiner made this clear during the hearing of self and this is on page sixty three dollars of our record excerpts the hearing examiner herself says the t a hearing examiner review of a decision to terminate is an extremely the authority of the hearing examiner is extremely limited for example we know the substance of the law is that the hearing examiner does not have what in other areas of law is codependent jurisdiction it cannot resolve illegitimacy of some other claim or a whistleblower claim or something else  a free speech claim the issue is very small it's very focused whether or not there is good cause to support the decision taken by either a principal or an administrator or the board at whatever level these decisions happen so the hearing examiner was limited to hearing simply the allegations and considering the allegations and the evidence against my clients hearing absent was not interested in hearing my client's explanation as to how when these particular deficiencies were brought to their attention they were not deficiencies that normally would have resulted in someone losing their job hearing examiners was not an adversarial proceeding using your cards positions were never part of the hearing examiners complaints were not valid ok let me ask it this way did you clients not to present their side in evidence in their proceeding so it's that that was all there was or are you saying the procedure itself this your clients to have done well in the proceeding itself disallow the hearing examiner from considering evidence of the district's bad faith and that's what my clients are here today seeking is an opportunity to be able to explain their position in context to show that hey the district was never going to fire us for these things in fact they had to make up things and they went along for example mr woods talk about an incident with a straws this memorandum which my client mr powers supposedly violated stated that i suggest the following as per our discussion drop the cheerleader club concept to past be open to all children no tryouts and for next year i would do drop or redo the whole club and they claim to violate the director by not dropping the club well the memo itself suggest there's going to be  it doesn't suggest that he has to drop the club right now but he was spared because he didn't drop the club right now they are grasping at straws a directive that is going to result in someone's terminations doesn't say you made in this or that and then violate them because they didn't do the one that you preferred and as a murder as a normal matter if someone is going to be fired for a violation of a directive that is very serious they'll be told it's that serious instead of waiting three years or however long it was the final say you haven't complied they would be dealt with immediately so you do not feel that my client's a pitiful and fair hearing on their claims of the district wrongdoing and that's what we're