in in the context of what happens the actual disability she was at that she was advocating for and that is that the match school closed and it did it after an audit by auditors basically agreed with what she had been previously erickson came back from a v t brief vacation first she sees this letter and the next thing that happens at about this time is the husband of the principal witness against my client's complains about something about  new for and they immediately call her up on sunday and say don't go to work on monday and you're barred from the school and don't come back don't talk to anybody can't talk to parents students or staff and then two months later they finally come up with a reason to dismiss or they don't come up with that and told me so you have to look back at the speech her first speech after the audit issues telling the business manager love know you can't just bury this issue about whether or not there's a nonprofit corporation or or whether or not there's a separate bank account or the money's being passed through according to the statute you have to go and do that and is the central nexus in this case between her speech and her after c and the wrongfulness of what the district was going the superintendent didn't want to lose control over the school or this new for or the funds that way there's a link in the argument that i'm missing and i want you to educate me certainly that it should be here and that's that causation with students and staff she was supposed to be taking teaching a course on film making but she never showed the students how to use a camera she didn't submit her grades you didn't go out and send in the paperwork for stable case because i think if you look at that rather persuasive evidence that you've just cited you have to take a look at this also on a mix of out of basis because they didn't come up in the re jab opinion and the issues in the f that case that she was reviewing and of course here is not identical to the cases in this free speech case and whistleblower case and that's and so no you don't get it i mean i'm sure you understood my question may be familiar with settled with versus important public schools in that case there was a case where well the agreements went through arbitration and so could the arbitrator's opinion and decisions be given to the jury and oregon supreme u s supreme her immediately after her speech when she's saying no we can't do it that way and then she contacts the organ apartment education and tells lovejoy no you can't just bury this thing you have to fix it if you want to go forward because that could lead to having to repay monies to other school districts and then this other incident opportunity comes up in february to bar from the school and it's not until they that they come up with these other reasons to discharge her the principal one down the halls and looking flash groups and say gee it doesn't look like we have one hundred students attending here there's two basic ways of keeping attendance and persistence in an alternative setting and many of the students with disabilities were so students didn't have the health condition that would allow them to attend school every day that's why they were in on an alternative school the question was are they counted in a program and if their program is being supervised even if they're attending somewhere else if the program  medicaid patients and they weren't in his office he goes to jail saying that a school principal concedes students who are in the program even though they don't show up at school you know what i'm saying is that the organ of ministry of rule has both seen time alternative the and the program alternative of how you count students and kristin's who are qualifying in an alternative program such as a student with a disability the question is is that skewed the following his and where did what does that ip require supposing it requires that one particular chip your teacher over give him independent study work in oversee his work and that student come in once a week or once every two weeks and check that with the progress and maybe the teacher should go out and do a home visit to actually see if the student is doing work there and these are what many of these students had as we had students female students who were pregnant we had  very ill and couldn't get to the school every day and so we had students who were also counted not just by seat time so that would be comparable to the position and did it really have hands on in his examination room versus students who were approved in their eyepiece to participate in a program and be overseen in this way for example the evidence that the ones who were counted as there and weren't there were being overseen in some independent study program yes evidence we relied on primarily was written with her mountainous new for his knowledge of the students of what programs they were and i don't think there's really any well i think this court can find that the snooper was speaking out on matters of public concern i think that the record was clearly wrong there she was complaining about compliance she was feigning to miss lovejoy the business manager that well you know you need we need to incorporate we need to get the funds in separate bank accounts when they disagreed with her well let's meet in january talk about that then she talked to the organ apartment education and the email there was supporting her on attendance and she testified and her own deposition that she also spoke to school board members about this issue the money that was supposed to everyone who's representing us as a charter school but if you have this record but if this is a charter school we don't know it was not but they were representing it was and if they had to and they had twenty students out of one hundred that were from other school districts and under oregon law if it is a charter school they don't have to ask those other school districts for permission to take their child and the money follows them to the school district well eighty ninety five percent of that money supposed to be funneled through to the school where we had a hundred students about five thousand apiece to the issue is there any evidence that your got to may to think of the year she was dismissed when we got to may two thousand and one she met with her government governance committee and in fact supplemental excerpts of in september twenty first was he she was the regional directors that write the evidence also is is that she and here's where we have a disputed fact she testified that i asked dr erickson are we in compliance and you know did we check with our lawyers and she says a doctor actually told her everything is ok doc erickson's testimony that's in a record basically says well if i have that conversation i don't remember she doesn't dis school i asked her do you plan to fix it and she said under advice of counsel no i don't we don't plan to fix it so basically was right but in those two years they received hundreds of thousands of dollars and we basically have a four hundred thousand dollars issue here two hundred thousand dollars a year was being received enough channel campbell seems to me that were a little off track there of the sickly the issue is not whether the school board was right or wrong  thinking she was a bad employee not doing their job well if they were wrong they still prevail even if she was a wonderful employee was doing a great job at the school because your claim is a constitutional one it's not a claim on the merits of how good a job he was doing it's your burden of proof to show that constitutionally protected speech on a matter of public concern with the substantial or motivating factor for the adverse employment action so my thought is even if she was right and they were wrong on her counting students as in attendance when they were in and attendance because they just had these crude minds and they didn't understand independent study analysis and she was right and they were wrong on whether she did the necessary paperwork for the grant that you supposed to do favors for and she was right no wrong and all these other things that we went through nevertheless if they fired her because of those things that they were wrong on they went they you win only if you show that constitutionally protected speech on a matter of public concern with the substantial or motivating factor care about is that they fire her because they thought wrongly that she was falsifying attendance records or did they fire her for protected speech on a matter of public concern while the recommendation to fire her came from dr erickson and this is the person who has pushed new for testified want to bury the issue on the audit and so a way to do that frankly is to close the school because that's the best way to get rid of it's not just speech also the restraint of the speech or the threat to do something and in this case so so it actually reaches further and she doesn't have to actually report to anyone but it's it's it's  judgment and he has identified the elements there anything you look at pages thirty three through thirty five actually thirty six of our brief we go through and explain how each of those elements is met and i believe that under both state law and factual issues that should be precluded in this case in connection with the nature of the allegations in plaintiff's complaint we have to be concluded that there were no alternative motives for what the district did that kind of had in fact but it's a porton to distinguish between two types of regulations here there are regulations that address how whether a student can get credit for different types of work different types of programs versus how you count attendance an f d a b clearly rule that the other elements that are entitled to preclude that effect are the issues with respect to the city nichols and her participation in this plan if it has attempted to make an effort issue out of the fact that it was her child and her husband who made the complaint that motive here and why the district might have done this you have to go back and look at the entire record in connection with the prior notice as to ms knew for about her relationship with students parents and staff her prior abuse of language her failure to control students the harassment was going on on the day that she was removed a she was given a slot in which that se from the complaints against her it was yet another incident of the type of problems they had in the past and when do we even need any of this i don't think we do i think we can go back to the question of whether this is trying to think here's the way analyze it earth amendment all i care about is that they protect that they fire her on account of protected speech i don't care whether she was a great administrator and wrongly napster under the federal program as a charter school applicant it's important to recognize the language of the statute under which the grant was made this is a charter school applicant and they were at that time making applications but it is different to that then continued with the argument that you're right we haven't complied these are the things we need to do she didn't report this and she's not whistleblowing something that that she has discovered a problem i don't think that her her discussions involve whistleblowing in any  nt she was working with people within the community both with the school district and with her government spite to try to establish or do the things that need to be done this is just question within a government agency about what we need to do and how we need to go about it and it's not it doesn't reach the level of the kind of thing where somebody is attempting to clean up to report a problem that no one else knows about if you go back to the first amendment claim and we deal with the question of matters of public concern it's very easy to get bogged down in the idea that some of the things that she categorized as her comments as including things like misuse of public funds and that sort of thing can in many circumstances be matters of public concern but we have to look at the circumstances in which all of this arose she was not going out and talking to people about the news use of public funds she's working within the organization she testified that the discussions she had with the department of education's start discussions she had with the school board were in her capacity as a member of the government's governance made it was the way that it was done and that was in line with the prior warnings criticisms constructive attempts to deal with her problems of relating to other people within the school district with students parents staff and is just another example of the problems that creates and then the problem it created for the school district in trying to deal with resolving the dispute with the any c s when they're into this very harsh letter hadn't been written  entitled to the view she was about the special education is another area where it's easy to fall into the idea that she's talking about matters of public concern but when you get into the circumstances of what was going on these were disagreements among his new for and the special education teacher about whether students indeed qualify for special education benefits when she got down to discussing specifically the types of problems she was having in connection with special education she she said sometimes they had trouble initially getting supplies that she thought they needed but eventually they got the supplies they needed again these were disputes within the district about how the student should be classified and when she would order supplies sometimes the school district person who and and having her first amendment rights quelled by the order from the district when she was asked to not return to the school she was told that she could not at come to the school and she could not contact students or staff during the school day she was never told not to talk to tech parents she was never told not to contact the governance committee she was never told not to contact the school board and she was not told not to contact teachers and students outside the regular school there what was the reason for that to protect the integrity of the investigation and it was simply a matter of having mr costigan be able to come in and talk with the students and do his interviews without any influence in any other way  issues about the supposed retaliation and incentive micromanagement the dr erikson was aware throughout this situation that you had problems with her communications with other students they have had complaints of course she's going to monitor the situation and you turn on what happens there's nothing in here that has a situation where somebody is expressing now as a public concern that go outside the simple internal administrative management of the of the district even if you could find a matter of public concern there's just no way to demonstrate your that's her speech if there is a a there that's connected to anything is that it's the motivating factor in the decision to terminate her point she was resigned to work at home on the basis of a complaint that was investigated she was eventually terminated based on many findings about totally inadequate conduct on her part and if you start if you want to go one step further and get into the pickling balance this is certainly a situation where the government has a right to deal with how the particular service is this providing are going to be provided and managed and certainly it wasn't being done under the circumstances that existed when she was the director of math and they had someone else step in and try to fix the problems and i couldn't even be fixed that grant think couldn't be fixed the problems with students who had been transferred to the community college because there had been conflicts all of those things state read the words i don't have the site with me and the words no i don't but you might also look at the glad case that's that los angeles case about students about this disability and that they protested an advocate gladys an acronym for a greater los angeles area on disability let me go back to the one letter that was the speech protected that was part of the reason for her dismissal was her letter to the accrediting commission that was the first thing that happened in may in february and dr aronson admitted in her deposition that that was part of the basis of her dismissal so that is protected speech you have to look at th because the appeal period for disagreeing with the warning status would expire with the evidence they fired her because she wrote a letter expressing disapproval on the part of that was one of