the speech itself he's ordinarily was in the news itself ordinarily within the scope of an employee's duties not whether it merely concerns those duties that's the point that they're pushing us this may have concerned is duties but making a report to the saying you can't say that anything that concerns employees duties anything is speeches in as an employee and that's exactly the position that palace of put forward here so you'd agree that that's indeed clearly established law that lane to make up some new rule that applied stuff that's been around for a long time to the extent that you interpret it the way that we interpret it which is that  irrelevant or or why i'm mistaken you claimed that the investigation occurred to determine the misconduct correct i would i would say that you can accept you can accept the source of the leak the only that was one that was one reason one reason ok now what about you claiming your breach of page twenty nine no investigating entities found impropriety on the part of the school district right and docrates greece they claim the only entity that found anything was the school district's own outside investigator and the fact that the f b i didn't bring the charges doesn't mean that the f b i made a finding is that wrong i think it supervisor responsible for for providing strategic direction his part of the cabinet he made one hundred forty four thousand they say the doctor he was not a policy maker is one of many who work to implement ackerman's policies he did not daugherty was a positive and if you look at facts they don't dispute that he but he's a thirteen highest paid employees with history they don't dispute the fact that he was in charge of half a billion dollars in budgetary outlays for the school district but they do  levels removing the attorney general who criticized and the records show there that there was really no working relationship what does this darker days speech deserve more protection since it was made for the press is bush the chemist's speech that was made  that any time there's an allegation of corruption and internal employee by definition is creating work disruption then it's worth and this is one pickering is about right it's about balancing things and ha disruptive i mean a draft really correct any time somebody comes in says this is a very corrupt system that's good to be disruptive that that assertion myself can't be legally dispositive or you'd never have true we also have a situation as our i'm just asking even if that's true how do you as a matter of law win by saying you know what on the qualified immunity is accusing either move over a little bit or move the microphone to torture her to go this court's decision in kemet explains that the lawsuit accused the entire staff of misconduct had virtually no one on one contact with our mean i commend you for the facts of the race issue but he did not hold a high level policy making positions he implemented a poli would we have jurisdiction to consider issues like for example whether the supreme court's pronouncement in lane change the landscape of the law whether the statements and gore said you were such that it could be said that it was clearly established law that was being violated by the defendants when they took the action they took we not have jurisdiction to make those decisions you will your honors and your honors will have jurisdiction to make those determinations based on the facts that the district court and i have because i was of the impression that you were fighting pretty hard against jurisdiction citizen under garcia he and now under the given the facts that the district court identified not the facts that mr brzezinski is presenting to the court the court has jurisdiction as well to review the talking about disruption if we agree with you that there's a dispute a factory guarding the disruption then should we just refrain from a lies in that pickering balancing any further than that i  certainly by emphasizing the duty of the citizen to give testimony that is truthful did not treat that as dispositive because if it had it would have distinguished our city on a different basis moreover the policy interests that we're talking about in with her from good government it should honor honors for a number of reasons first qualified immunity on the clearly established hong depends upon the context as the pla just change the law all of the elements have been in place for many extremely fact intensive legal standards ok as such how can we find that they are clearly established as applied to the school district in this case if the legal standard is self the pens on the facts are the actions of what is interesting intersection of the jurisdictional issue and the clearly establish court must do is separate out the legal question from the factual question and that is in fact what the court said and pickering were not an interlocutory view but the fact that the court need to distinguish the duties when he told his superiors that this was a unapproved contractor right and then isn't that what he told the superiors to did he not express concern to the superiors that certainly if you believe that said that people in the office and then they said well we don't care in essence their actions said we don't care so then what was he supposed to do you want us to establish a rule that  he was then barred from going outside the chain of command and blowing the whistle on what he believed was an illegal act first law say he did not go up the chain of command he did not go that route him hard regarding this but more than that it's important to recognize the public policy underlying our setting which is that when you have a high level public employee who's charged with carrying out in this case after ackerman's direct is that's where you set aside some of your first and then responsibilities in waters that just isn't how to talk about sure you do set aside some of your first name but but wayne seems to be saying that there's a difference between speaking pursuant to your duty and speaking about something that may be related to your speak for judge hartmann but i understood the the the point he was trying to get you to respond to is talking internally and saying hey look i guess it's not an approved contractor this is a problem you could say that's part of his duties of overseeing capital projects but stymied in an effort to get that appended to going to the f b i is not part of his duties there's nothing in his job description that says and you will report to the f b i on a regular basis or you will meet with reporters for the philadelphia inquirer they relate to his duties but they're not part and parcel of his duties and that that's what lane is talking about now is is that it was just that within a subpoena context of a person testifying under subpoena in a criminal case that would be protected but i did understand you to be thinking there was something else going on that wayne was a position in his job by his employer were not part of his job he spoke to the press he was forbidden to do so and he also filed state animal cruelty charges which he's not allowed to so this court found that in in both circumstances that felt in his job his because his