focus on all these things that people said you know three or four years later the fact is that if you look at that this event are my client was removed from the office on september the second the day before the city council and had gone to the actual email that they wrote in late august of ninety nine i am saying we have concerns if this isn't resolved we're not going to be able to complete our program this is an outside vendor this is not my client it's that e mail which went to the finest director was trigger lot of these events but they've never said it they never got an affidavit from each team which is that's a vendor saying called we really weren't serious about this this really was an issue this was a big issue for them and that's that's the neutral part and you know obviously the city people are going to have their position my guy's going to have his position but it's this neutral vendor which is the one who actually said about these reports that we cannot complete our program unless you let us do these trains what about the that your client made certain state the evidence and as admissions in terms of that if you can take that as the mission that it was and have a public nature that he just sort of overstated that to go in and talk to him what do you do with that well again i think i think it would probably brothers are looking backward and say well why did he that was no big deal at the time it was a big deal and he was in charge of this and people were predicting a lot of things his memo days well i'm talking about his deposition you know we have to take that we have to take the facts most favorable to the plaintiff at the summary judgment but there is that deposition testimony and that you know that i mean you know someone else wouldn't have any motive to do it right but he had no motive that's the point the point is he had never done anything wrong and this is the guy this is the guy that came forward said look at there's a problem but i had a motive only it's not that he did something a ten year employee with an exemplary record and outside vendor who says we can't complete the program and he comes forward and then tries to tell the boss of the boss just ignores him and then he finally goes to the city council says it doesn't hold a press release  client but i think that the court does have to make some legal inquiry based on those facts that body of facts absolutely and that isn't necessarily i mean you take those facts most favorable to your client to you or your your client but then the court has to make as a matter of law some determination to determination of whether this was in the public interest and i think the pickering balancing test i it is a legal question that the judge below found against my client i believe that was clearly of a wrong legal conclusion given the significance of what's at issue and again i'm sorry i missed the whole with that conclusion that the sample of the matter of public concern said that this was not about a public concern as a matter of law and i just don't think based on these facts you can find that you know that everybody agree that yk was a big issue and one agreed that this outside vendor said there's problems with getting this completed and my client brought that forward that's not something which is it is a personnel issue and it wasn't a routine issue it wasn't something that he would normally do this was any any also went outside and he talked to his boss first but then he went bloom brings up factual disputes but i think that's that's putting the cart way before the horse but the law is clear that the issue of whether you have a speech regarding a matter of public concern that is a legal determination and unfortunately this doesn't happen all the time but the trial court is going to have to look at some facts to make that legal determination and that's just what our court did here and he still has to give the plank that all important you know question about that your honor so i'm not going to thing that the issue of included a discussion of yk as a whole and connick tells us to look at content and context and the record as a whole and that's right and kind of looking as a whole his speech was not matter public concern the kernel of public concern in yk it's the same kernel in conic and i would urge the courtroom you kind of pick us in that case the questionnaire that the plaintiff put out asked a very serious question do you feel you've been pressured to work for the political campaign of the da something like that obviously a matter of public concern but it was a colonel shrewish down in there where the undisputed facts don't matter how we take on this case in this case the new what's your position and to what the what the primary thrust are the primary burden systems in place number two he approached two city councilman and this is undisputed both of them testified that what he really was talking about was he hated his boss he hated by kenny he wanted his own department it was a personality dispute in fact one of them even went so far as to say ninety five percent of what the guy was telling me was he wanted his own department he didn't like kenny and the motivation is helpful the motivation of the speaker and the  had absolutely no interest in doing that that i think is another thing that puts his speech in context it wasn't to solve the yk problem it was to get himself out from under what he thought by the way he thought his boss was a menace he thought his boss push forward your own personal agenda i guess playing the devil's advocate on tests i think what the appellant would say is it wouldn't be like i was talking yk he what he is and that he has a computer person and it was pretty close to yk to  the nine eleven phone system all the all the city computers hinged on this one man very unusual situation and i think it takes it out of the realm of any other case that talks about suspensions that removal from the workplace and i would like to my last few seconds remind the court about mt healthy because i think it is a very important case that needs to be considered here regardless of what this court may decide as a matter of law and the public concern issue undermount healthy when you look at the independent audit and everything else that went whether or not the admissions that mr allen actually made about yk a matter of public concern he specifically said he had a high confidence level the problems would be minimal that's in the excerpts of record ninety six ninety seven he knew that the city was ready he had quote stand by systems hardware and software in place if there were issues again and accept a record of ninety seven he had done testing of the key compounds in  addition when we're talking about the control issue the internal structure question was asked what how how did he have control how was he the one that could do everything well this came up a number of different ways they had the hit hit by a truck management management issue that one person is in control of the system to thirty from a management standpoint i can't have a person in charge of the system make his predictions come true the exact point that was made by the court not actually him qualified immunity came right except you mean you'll lose no it does not point out we still have qualified immunity because we are still protected by that because simply put until we have the law regarding qualified immunity in this kind of a factual even if let's yeah even if maybe the first element would be satisfied then you would rely on the second prong of stasiak correct a reasonable mistake about what applies in the particular more complicated than the first amendment public employee employee versus what seems to me your best argument would be and i could be wrong but the best argument could be that even assuming that they credit that the city doesn't prevail on summary judgment that it wouldn't be obvious to a reasonable person that when they had an employee that was in charge of all of these systems and they were concerned about that employee impact not like in this county that they might sabotage this that it wouldn't be obvious to a reasonable person that they couldn't take some sort of personnel action exactly that's precisely what they did do that's why they said they did with the did he can't and the one quote that i gave earlier really suggests that's exactly the reason why they did it now in a deed a court could determine that they didn't have the right to do it and that they could lose on it but right you're saying it's on the second it wouldn't be obvious wouldn't be obvious and further don't forget don't we shouldn't miss the practical aspect of what we're doing if we're going to say is that we deny qualified immunity to these two what we're really saying is we're going to hold these two individuals who are not lawyers who are not judges we're going to hold i know you're anxious to get away but thank god obviously that we all have hindsight on this deal but if you just look at what when i asked the city manager what the councilman told him he said the councilman told him the dean was telling them there was happen that he could make it happen now that goes to his mentality if the in fact he wanted to get rid of diem because he got to the city council then that would be illegal that would be outside the scope of qualified immunity if that was his real basis that it would be protected by qualified