so certainly there's no question the court has that authority i guess from our standpoint the case has been around for a long time must look at these been given a fully fair opportunity develop the record in the record is pretty extensive in the court i think looking at it most of it clearly is i mean i think we've got nine or ten category as you are again speaking only for myself i mean custody in funding vo tech funding salary complaints athletic gate receipts the ongoing dispute about the choice again and choice you know housing patterns that stuff seems to be right smack in the heartland of his of his duties in fact there were some admissions where mr lipinski candidly admitted as much but how do you argue that the school board travel scandal in the kitchen misuse i mean this this gentleman wasn't in charge of the elementary school he he got informed by a parent about some unethical perhaps even a illegal conduct at an elementary school that has nothing to do with his job i think it does or i respectfully when you look at the development of the course a opinion i think what's happened is the core city has shifted the analysis to the role of the speaker rather than the content and in this case dealing with the the i call the chicken and burnett the the food at the elementary school which was closed by the way in that case a parent of memphis and high school came to mr pinsky in level management official of the school district think that anybody with that lead that level who has some impropriety being reported them has an obligation to report that through the chain came here or you just said or he could have said i have enough trouble dealing with this high  what he did why there's another school he said it's closed why you're basically saying good when you become a principal responsible for anything that comes to your attention and you relate it's all within the scope of your employment because of your level of anything you score or not you're responsible for if you find out that some you're taking that to its logical conclusion if you find out something in this in another school district which is somehow going to impact on one of the people expertise of the firing range and the lead you know in the bullets you know raising the blood level what they said was it was being exposed to that information in the workplace that gave them special knowledge that a citizen would outside of the the if he was being approached because he was principle high level minister in the district and that was a reason a person approached him expecting him to do something about it and he did do something about it i think that is the workplace connection i mean i now see that the b you're treating him like the superintendent i mean you're right he's the superintendent or a school board member that has control or auspices over the entire district that would make more sense than the principal was is in charge of that particular school cases to me what what gore said he is saying if the knowledge of the incident that's being reported arose of the fact that the person was an employee as a present post of being a citizen that is the connection i mean  course it was very thing just because lloyd in a management position within an organization is public entity or not you want us to broaden the holdings of any case and say any employee cannot complain about anything outside his little feet but within the larger umbrella or under the larger umbrella of that particular agency you know i for that broad ruling this is a high level management official who says i don't know where you are not asking for that if you're talking about the board member conference remember hell i have an address and let me address that the facts of that are very very specific and very very limited mr lipinski went to a conference in i think was in san diego a private not a board member not an order not anybody else asked him about whether or not a board member had been there telep someone a response to their request that this individual had not been at the conference we certainly was not going to the board he was not whistleblowing he wasn't contacted by the state already but it's not it's not beyond the pale to imagine that providing that information could have set in motion a chain of events that got somebody even above mr lipinski very upset with him and caused the retaliation of which he complains we're getting are obviously white how can you say that's not speech he said he said something that got someone else not only in trouble because of them prosecuted criminally and then he suffers an adverse job action and he's trying to link the two together and how do you say it's not protected speech well it seems to me he was doing it in his role as principal again he was responding to a person's request about this information and that that certainly was a conference he was  again he was an employee of the district at the conference and he gave that information certainly i grew up to this context that the other factual issues about who even knew about that are not for your son i understand that so what would ever the motivation for any such management official in a school district a principal in this case to ever report wrongdoing in the school district if they did not have their job what what i meant by that is that what gore said he was saying is that we're not about constitutional constitutional izing employee grievances that there are a number of other kinds of remedies as whistleblower statutes there's merit systems or many other kinds of remedies out there for a principal so that wouldn't apply but there are a number of other remedies out there and to me at least the point of course that he was that we can't constitutionalized everything and that this employee issues have a few hundred years ago i think the founders thought the this case and that so to me at least when i look at our city look at the follow up cases what the court is saying is look there's other remedies out there when the when the person is speaking with knowledge they gain in the workplace particular high level manager official like this that's not going to be a constitutional court there may be other kinds of remedies out there but we don't want the courts you know dealing with all these so called first amendment kinds of claims i think that's the the purpose of course say i'm out of time i don't know if i  when you talk about a shotgun approach pleading well the one i use closures on a witness list as a protected statement that's right you want and it's hard to encapsulate something like seven or eight years of continued and imagine that constitutes i don't get bogged down in that particular issue but the theory was that that's a clear communication to his superiors that he had spoken with those he's saying is not the inclu these various had information that he had spoken that someone because of his inclusion of the word reasonable inference to try it maybe i could help you a little bit on this what's interesting to me is you didn't plead it in the shocking fashion seen other cases pleaded where you didn't make a ten count complaint listing each of these you have one count for retaliation and then within that count you have a variety of factual  are we obliged i wish the district court had done this but now that we have the case isn't it prudent for us to explain to the district court which of these nine or ten categories under garcia said he is protected speech in which which not and i pose the inverse question to you that i pose opposing counsel i can't find any thing here to be protected other than the school board trial scandal and the kitchen misuse that doesn't mean you might not get into evidence the history but we are going to if we send this back down i don't know if we are not but if we do should we not tell the district court exactly which categories are protected weak district court factual record which clearly is what the court is handed today and the court wrote if there are minor gaps and in the district courts factual recitation we can determine what facts the district co and it looks for in the district courts explanation of what he did in langley out the test he laid out the black letter tests but in the middle of them in such a way that least i found myself a bit lost in terms of picking  ostensibly that's the appellate argument that has been laid out by the defendants but in reality what they've done is attempted to recast the record from the summary judgment record see is a direction from this court on remand to flush out those facts only as to the two incidents that don't relate in any way to not pleasant high school i'd rather have an entire statement of facts  some of which are appear at face value perhaps to this court as entirely related to a principals job duties some of them he said he admitted in the deposition well for go to city some of them he said of the deposition yes i did that depends on what we review the record and that's the problem that the court is presented with but if we look at the record in the light most favorable to the plaintiff and you look at j seven twenty four here's the rest of the plaintiff's deposition transcript and what's key here is that in most if not all of these allegations lipinski talking about misconduct or misappropriation that's made at a higher level by decision makers above his authority outside of his authority and other schools is is just a challenging decision because if if your client's boss did something egregious and outrageous and reprehensible and like a good citizen and a good administrator your client discloses that but it dealt precisely with his work let's say it dealt with his budget let's say his school  gets gets a million dollars a year and he finds out that his boss is stealing one hundred thousand dollars a year course he says that that's not protected speech because it's to do with his employment now based on what you heard you made to do so that our study also at least in this judge's view says that if he calls out the superintendent for stealing one hundred thousand dollars from a different school in the district perhaps  competing high school that is protected speech so we're sort of in a in a strange land here in the short time that we have to interpret our study the last few years you're right your honor and we agree in large part of what you said i think the key distinction here is to go back to the record when it's not laid out for the court and look at those communications for example it seems in the court of saying with regard to vocational technology funds your complaint with pinsky is that you were supposed to get x and you got x minus ten and that hurts and in part that is his complaint but if you read the actual letter he says and i'm sure this is happening at other district schools and needs to be corrected if you read the august auditor's report that results from that it's a district the gate receipts he was specifically asked whether or not that was part of reading and that was very responsibility as principal to follow up on that greg talking about the way that he seemed to not properly pay that when he says i would assume yes yes it's my responsibility and he also says later on in his testimony again this is not show you seven twenty four i think through some twenty six area and i'm paraphrasing now that it's not my job as principal of school  tell my bosses that people from schools being see are stealing and that's the same speech because it's not that now plus it's not the passing it's gate receipts it's that these other two schools he finds out are not and that sounds like that and that's con content of that speech is it's up to a jury to decide did lipinski actually say other people at other schools are stealing and once that's determined then the court steps in and says well as a matter of law that citizens don't know it was just not pleasant as a matter of law that is employee speech we're not really there yet and when i say leaving is that what i read on the deposition that's not appropriate for resolution because there are other things in there were for the new contracts and it's not clear even though he said it was his responsibility arguably in is a matter of fact in party on in not and part not ok and that's the problem with the jurisdictional threshold question you can paint the appeal as one that says the sufficiency of the record is inadequate it is insufficient to support a constitutional violation of a clearly established right but then when it's argued it's just a look at these through the defendant's  lookingglass just look at the facts as we are spinning them and it's clearly employee speech in fact the entire statement of facts as i was pointing out before in the defendant's opening brief is that third element under swine for that sort of thing where the burden shifts back to the defendant  tell you why his firing had nothing to do with all of the speech or why would they lead in with that because they're trying to recast the record in the favor the defendants i and i appreciate the position courts you recast the record on this housing patterns for school district  surety rights directly related to your client's position well that's another prickly or issue under garside it is no doubt that that's the case but in context those communications that speech came to him from citizens within the nelson school district and he didn't speak up in some form a line of communication he went to a school board meeting and it it's not where he got the information it's what he did with it that's why well that's why he was reprimanded according to you yes white that he just was a parrot and repeated anything anybody ever told him this is right in his belly way and if it affects his school he needs to do something about it so how could it not be part of his employment duties and responsibilities i guess the issue there is with and say we want this presented to the school board we think you're a good voice forte and then that would not be within his official job duties or arising out of the rules principal i think that's colorable and the idea that he's a retaliated because he gives the bad facts about the district in a public school board meeting  i'm not sure any of this slicing the onion matters if you get to the jury on count one retaliation you know i'm struggling with what in the world the jury instructions to go with well you know i mean is this is the jury  or spoke about this issue as it relates to mt pleasant exclusively or did he also speak about the issue that related to other schools or district wide misappropriations or issues et something in that category to me whereas the district and then if you can the jury can then for close the legal question by saying yes only related to mount pleasant and something like that and i that record is what the plaintiff largely put forth in its briefing the other record would you expect to hear from trials what you see in the defendant's brief things like the complaints about five or nine points were entirely inaccurate that doesn't belong in front of this court that's not viewing the record in the light most  plaintiff appreciating that there's not much of a record in the water to work with but a straight remained to say we find based on the way these facts are spawn here before this court that these issues are clearly going to city and these two are not is a little bit lost at least four witnesses at the one of them was the special value waiter who actually conducted the one thousand nine hundred ninety which it's very difficult for me to sit for this court and say that is the better course of action but that is the intellectually i think honest  and obviously that's an issue that we've talked about a good bit one just like the real quick is when when you review the district judge's opinion unfortunately he appears to confuse the course that he and comic because he appears  issue where i think qualified immunity should be awarded to the individual if it's again when you look at that the standard certainly is not clearly established that that kind of speech would be protected activities of a school board sitting there in december of  said so what i'm saying is if you're at the school board back in december of one thousand nine hundred ninety nine to define decide what is it is not protected speech that's an awful fine analysis to ask a school board member to make and on top of that we have the whole pickering balancing issue that has to go into it so from a qualified immunity standpoint independent of the question of whether there has been a custom while ation i think the additional should be getting qualified immunity at a minimum you can almost make norm i mean that's what we're talking about from the supreme court and there are cases cited in our brief that say what your honor is saying i'm not things a hard and fast rule that every time we've got differing balancing there must be qualified immunity but we say two cases one district court of delaware case the hague versus brain one school district where a judge decided that the other case i believe a circuit court case of believe it's an eleventh circuit case was in in our brief where it where the court points to the fact that when you have pickering balancing involved for board members or public officials the presumption is going to be that they're qualified me because you're asking for a very very fine and sense of judgments and one last point on that that i think is important as we look at qualified immunity the subjective motivation subjective purpose of the individuals making the decision is not relevant it's an objective reason when the standard this court in blalock versus city won't in specifically found that there are any other stapleton's opinion that case it was in the rest case and what he said specifically was based on harlow and other cases is that if the arresting officer could have believed he had probable cause based on the facts regardless of a subjective motivation for qualified immunity