employee speech or citizen speech and if an employee is speaking pursuant to their job duties on their grocery then it's citizens speech i'm sorry employee speech the employee is not speaking pursuant to their job duties and it's citizens  and we move on to the next question which is whether that speech involved the matter of public concern here mr montero was undisputedly speaking out as a union officer and candidate for union office the district court seems to me focused on the on your client speech criticizing the commissioner's management at these when it when you when you are at the at the p b m meetings what is the other speech or activity in your view that would be protected by the first amendment well this speech that he made over the period of two years while he's vice president than running for president in two thousand and twelve included criticisms of management and manpower cuts but also the relationship the union leadership namely the president mr olson with management and the the his view that that relationship was overly cozy were that essentially the union was not oppositional enough to management i believe under clue v johnson that that activity particularly since it does include criticisms of management is protected and that in other words the scutcheon about the cuts t services and absent management was yes proceeding yes your honor which your view would be that it's not that those kinds of comments are not related to his specific duties as an officer but to do with the way that the department was which was operating and being led up absolutely and he was doing it in his capacity as a union officer and candidate for union office of him as as a tester part of the test under garcia because i don't think our city requires that it does mention the notion of civilian analog in this court pick that up and weintraub it and has applied it but not as a disp ve factor but rather to look at whether or not the underlying speech is truly part of the employee's job duties or separate it where this speech is not personal to me let me have a slightly different way and that is if this is a union union members are not meeting as an employee meeting their meeting in a union meeting i believe it is and to the point of civilian analog as i raised in my papers or papers i believe this court has recognized that union activity is is directly analogous to political activity includes the same kind type of activity is is as political activity so the court feels constrained to apply the civilian analog test which the district court obviously put great weight on blow we are required by our president to do so in this case i do not well first of our said he does not say that that's the test that case you may matters right up on judge pointed in specific we have a case matthew how would you say in light of matthews we should we should deal with this is an analog we're  component if if in math is the officer complained about the arrest quotas and raise that concern to supervisors that that officers are subject to arrest quotas and the court i believe this court found civilian analog being that that was on summary judgment that the supervisors were open to service and complaints and that says since had the same essentially same or similar access as the underlying subordinate officer here citizen certainly have the ability to speak out in town hall meetings to directly speak to the department concerning manpower cuts concerning departmental wide policies but would you would you if you were writing me in the court and you get to the question of the civilian citizen analog before you even get to the specifics of the comparison let's think sion as you see it between the facts of matthews in the facts of this case you would have to see to describe how we think about that civilian citizen analog and you if you could just elaborate on you say you think of it as a factor not a dispositive factor i think is a more about the method a method of of determining where there's a close question certainly in matthew zisha close question about whether the officer as an officer is speaking pursuant to his duties it's not that dissimilar from weintraub case in math but here hall would be a civilian i did i don't think the court needs to in this type of case address where somebody is speaking for instance on a committee that the represent now i'm trying to think of another anyway let's stick to the facts where union officer is speaking out as a union officer i don't believe the court needs to understand the up into this case yes which found that union association could not be the basis for public employment absent some compelling reason and premise that decision specifically on the relation to the close relationship between you know activity and political activity so any form of political activity and yes a town hall would be such a form but if they have them in yonkers i imagine they do times but i mean that is well that that's what i would say about civilian and and the court i would say the district court over emphasized the question of civilian analog when it did not need to and in fact acknowledge that it was not dispositive but i would argue did make that question to spot and matches a bit of an odd duck right i mean sort of like because the officers on the receiving end were there to hear complaints from the public and he went to those court's decision and matthews that that but the civilian analog there too if you look at the decision is essentially an add on to say well this confirms that matthews is speaking as a citizen as opposed to  because i think it matters the question is much closer as to whether he's speaking as an employee when given the facts well let's say that you know your your your client  distributes pamphlets are none of those activities would seem to have a citizen civilian citizen analog yet they are traditionally what we think of as protected first amendment you know activity part of that the articles or the negotiations would not the whole thing you know i would say articles would be would be but i agree i think the court has recognized that with respect to public union officers that there is protection not all that is weak knowledge not all speech by a public union officer address is a matter of public concern but that's not we don't believe that's an issue in this case i see that i'm out of time have reserved time for rebuttal less rather questions at this time i'll yield to my trouble for apologize the first is the existence and significance of a civilian analogue and second is the question of qualified immunity here for the individual defendants with respect to civilian analog plaintiff argues that it's not particularly important and or there is one here because a citizen could raise the same concern via political activity i think plaintiff's argument completely misunderstands with the civilian analogue factor asks for it's not just a question of whether a citizen could speak on the same issue this court has said in matthews and jack for that speech has a relevant civilian analogue if it is made through channels available to citizens generally and the court has then looked at the forum the audience and the citizen access to that channel so for example if the commissioner ever appear before the public and in town halls and answer questions and where their opportunities for citizens to publicly address concerns about his leadership in town hall settings the planet has an alleged anything regarding whether or not there are town halls here and it is the the city of yonkers and i think there are town hall meetings but that's not the the planet has an alleged he was denied public access what has been alleged and what was conceded at the hearing on the noise you dismiss here is that public citizens cannot get anywhere near the union meeting they're not allowed in to listen to what's said and they're certainly not allowed in to speak because you are only a member of the yonkers police union if you are youngers police officer maybe you're not required i believe i believe you are required to be in the union  the city because well i think it satisfies both of the matthews factors it's both not it's not speech outside of his employer responsibilities in a citizen who wanted to raise concern if a citizen had similar concerns about the staffing at the police department the citizen is not going to go to a union meeting to raise those concerns union meeting itself notes of his work you know i think that under weintraub the fact that is something set up solely for employees and solely related to the employment in a relationship with the employer then that is not does not have is not its own civilian analog a civilian analogue would be his speech would be protected if he did go to a town hall meeting if he did write a letter to the editor if we if there was a as he said in the course of the meeting was  employer and the employee and his duties and as this court said in the end that oftentimes you're just this is just going to be internal complaints about work those types of things arise from your employment  we haven't confronted in our jurisprudence this particular issue right with respect to union standing up in a union meeting and talking about the problems with manager which is what we've got here right now i don't think it's been addressed directly i think it does fall directly under weintraub and also under matthews and i don't think you're set up for solely for employees you have to be an employee in order to be able to be there to make the state yes and i think that's key i mean i think you know i don't think the plaintiff has pointed us to any cases where this court has found that someone was speaking as a citizen when there was not a civilian analogue to the speech and it matthews the court said that the speech was protected because he raised the concern in the same manner that a employer citizen would raise that concern here a citizen is not going to go to a union meeting in order to raise their concern about their local police department they're going to go to their local officials they're going to go to their town representatives the mayor the commissioner that's how they're going to raise it  argument maybe some of the question throwing and i think we're we're having trouble he certainly advocating that that if it's if it's a union meeting then it and that it's a practical inquiry i think that when someone wants to negotiate and talk about the terms and conditions of their employment that's that's pursuant to their employment duties if you will about statements  in allegedly endangered public safety right i think that that's still in terms of his criticism of management that that's still internal office politics i think it's very similar to statements made at issue in conic where the eighty eight tried to survey her coworkers about whether they had confidence in management and whether they needed an internal grievance procedure and the supreme court while speaking on the question of public concern said this is just a personal employment grievance the even though she's asking about broadly do all the employees in the office feel this way this is internal office politics and it's not protected i think would be an outlier if we were to hold as you do as you're suggesting that we do if you all these other circuits right have said  somebody speaks as a union members speaking as a private citizen i think in most of those cases there is also a civilian analogue as we point out in our in our brief i don't think this would be i think this would hold that there must be a civilian analogue i think is more in line with the supreme court's cases in ghar city and lane and i think we have to remember that in addition to defining me through up with our cities  there's a conjunctive test where you have to use that citizen and along that it's weighted equally or is going to be read simply as a factor i think i think it is a fact i don't think this court has to decide that it is  a always a dispositive factor i do think it's a dispositive factor here and the whole the whole point is that you're speaking your capacity as a private citizen if you're not the court has said we don't the first amendment doesn't constitutionalized the employee grievance which is basically what the plaintiff is trying to do here and i think that that principle informed our seti i think it informs how you look at whether they're speaking as a citizen or an employee and therefore we look or said he said we look at employment duties because we need to find that there's a civilian analog in order to protect the speech i see that i'm out of time there and there are alternative bases for of herman's here which i believe are totally appropriate and could be made on and therefore was inappropriate for a motion to dismiss that's not the case our argument is that there was no clearly established law if you look at footnote thirteen of the winch decision in two thousand and sixteen which dealt with some very similar union related speech the court explicitly states that it's not clear as of the time period relevant here whether that would fall under employee speech or citizen speech under garci and i think that decides the issue that it's not exactly doesn't the city of yonkers charter indicate that the police commissioner has supervision and control of all affairs within the and within the yonkers police department including disciplinary decisions and daily ministration i don't have the charter in front of me your honor but if you say that's what it says then i except your representation how can you not have said was he involved in decisions about the transfer of officers between units the question we know the question of was he involved it's not alleged here the only reference to the commissioner is that one of the defendants allegedly made reference to him when and instructed the plaintiff to stop making these criticizing comments the commissioner was originally a defendant in the original complaint was dropped in the amended complaint and i don't believe there are any other allegations regarding commissioner in the complaint thank you good morning your honour's my name is andrew cuomo please the court i represent union president keith olson in this matter and court referred to the term outlier and i expect you would have thought that i were sitting next to mr watkins rather than sitting on the side of  discipline notably the police commissioners not offending in this case but keith olson is which is a highly unusual and i can use the term outlier it's highly unusual that a union president would be accused of infringing somebody else's right to free speech and more importantly having the ability to take adverse action against that individual which clearly does not as president of the p b s and that's why we focused on our brief on that issue which is that he does not have the ability to have any adverse action or take any adverse action against  judge and you know if you look at the initial claim and every first amendment clements we all know require speech protected by the first amendment and that it found it took adverse action and then there has to be a causal connection well in this case when we pointed out in our brief that kids also cannot possibly take adverse action plan if replied in the reply really pointed out several things if pointed out three investigations that were actually conducted by at least as pleasant in the complaint manner and moran supervisors within the department and even they have limited if not any authority to take any adverse action says the corps pointed out that would be up to the police commissioner to be in charge of transfer the motion promotion or  into a friend of mine terror on those are not adverse actions on their face they are at best at best workplace harassment minor issues of workplace harassment so even if a court i don't anticipate that court rule against the city but even if it does i would suggest that also should be dismissed from this case because plan of can't meet its burden and as this court knows it has the authority to review the complaint they know and take a look at whether or not plaintiff could possibly claim adverse action against keith ellison and in this at least looking at four corners of pleads his claims actually the tell is in paragraph fifteen where he starts to talk about what he claims to be protected speech and his initial statement is word for word from january tenth rather from january two thousand and ten to january two thousand and twelve the as yonkers p b s vice president plane of criticized olson's leadership of the august p b s there's the gift this was never about protected speech which is why that was the argument  made on the district court level i'm not going to get into whether or not this was a civilian analog and whether or not speaking at a union meeting is citizen speech versus noncitizen speech what i'm going to talk about is whether or not it was a matter of public concern because it was not this was with the department and therefore as a result of that relationship he shouldn't be a union president that the cuts were bad and if you notice he says it's bad for the department bad for the members and bad for the p b s he's not being critical of the department of the is alleged to the extent that it is claimed with no evidence to support and remember we're now with bob versus twamley and the necessity for more than bare faced allegations in a complaint the allegation is he requested others to either engine investigation or take retaliatory action and the odd thing about that is you know you were talking about doesn't the police commissioner of absolute authority well if you read this complaint you would think chief olson as p b a president has absolute authority to run the department the city  there were in a motion to dismiss stage are we at why are we at the stage where it's sufficient on the basis of the of these allegations to go forward it may not result in anything want of a quite frankly to save my client the necessity of enduring litigation when the the that the allegations in the complaint don't rise to the level of a constitutional claim it's just that simple it's a ball versus promptly you can't simply is to credibly allege with some level of evidence rather than just bare faced assertions and allegations that there is that a defendant who under any constitutional claim has to be personally involved was personally alleged that's that's interesting but it's different from say oh maybe it was but it's impossible those are just two different ways to approach i thought you request i thought the question was is it alleged that he requested ok because that's how i thought i heard the that actually do not constitute retaliation for instance it's alleged that he personally participated in an investigation into one of his own union members but that's not calley asian advancement it's alleged that he personally sent a message to montero saying i want to have a conversation but that's not retaliate it's alleged that he had a conversation with another employee of the aquas police department saying you know ray better watch out but that doesn't constitute recalibration so my point is looking at the complaint the only things that could potentially constitute workplace retaliation there's no personal involvement of keith olsen the things that he is alleged to be personally involved in don't rise to the level of retaliation they only rise to the level of workplace arrest so i'm well out of time unless the court has any further questions thank you for your time  confirm that by looking at civilian analogue and the language that it uses is what matters is whether this the same or a similar channel exist for the ordinary citizen so to say that you no wants to look at that certainly political activity of any sort the criticizes the police department was available to any citizen in yonkers i guess the because i'm looking into it  in the court specifically referred to writing a letter to a local newspaper as being similar yes it did and i believe there's another i don't remember what else example address qualified immunity if the court sees fit so garson he does not change clue v johnson or said he changes clearly change the law with respect to employee speech employee speech made pursuant to an employee's job duties before that in this court as well as many others an employee could be protected even though they were speaking pursuant to their job duties or city no question about that change the law with respect to that but here there is in my view no question or very little question should be very little question that montero was not speaking pursuant to his job duties as a union official which isn't is it is in conflict or there's probably a better term for that but i would say the fact that yonkers police department was forbidden by law in interfering with the pull of the p b s activities under new york state law as well as many other state laws it  exercise control over the speech of an of a public union officer so the the whole concern underlying our city in pickering that we want government employers to be able to operate efficiently and part of that means in certain cases being amendment johnson clearly stated that this type of union activity in entry union dispute which criticizes management was protected and that was notice was on notice carr said he did not change that the footnote in lynch he actually would counsel refers to i believe it's footnote thirteen also doesn't change that first of all it's dicta can't change established law secondly it muses about whether a public officers speech relating to a public employee union officers speech about the terms and conditions of employment might still be protected after graft seti i would say it's dicta but also depending on what the court meant specifically by terms and conditions if we're talking about what we