honor johnnie guthrie was fired and his life was destroyed for writing a letter to the editor expressing his own personal opinions that letter expressed his own personal views not a matter related to public policy that letter was written on his own time with his own resources that letter did not reflect on his employment status with the city that letter was not a letter contra criticizing official policy and that letter had nothing to do with johnny guthrie's politics isn't that real question i want to answer that directly but before you even get there i do not agree that the big picture is whether he was a policymaker i think the main question this court has to answer is whether speech got three made is related to his role as a policymaker if you found he was a policymaker i don't think you have to reach the issue of whether he was a policymaker at all because if person  the policy makers of one religion and somebody else is of a different religion it has nothing to do with job duties responsibilities to fire somebody for a view on abortion which has nothing to do with city policy  about the very hard job he was doing and the audit that had been performed on the police agency he represents well how could it be unrelated unrelated to any city policy and november you know the first amendment in the supreme court has repeatedly said you want to protect robust and uninhibited speech political speech this was obviously political speech  political speech about the views of two council members not about nothing of use of the city and little actions the current antics i've never been more outraged that the lack of professionalism displayed by these two obviously ill informed councilman there is strong language about two people and if you continue reading you will say that the views here are you will see that the views here are the personal views of the author who by the way is not identified as being a deputy city attorney and it also says that the views of the person he is responding to the other councilman are his personal views your honor if you look at the entire record you will find that the majority of the city politically it matters that the conduct did not relate to a position taken the speech did not relate to a take his vision taken by johnnie guthrie or i mean by the city council the city council had not said we majority and just emphasizes and highlights that it is the personal views of two council member that johnnie guthrie was disagreeing with no he also was disagreeing with the audit he said i've way he thought was his client and beings only could police chief actually it's one of those reports where you can take parts in say this part's critical the majority of it was quite favorable there are parts that you could pull out the one could say was critical but no it would not be fair to characterize it as a highly critical or even the critical report of the police department here on the answer now to the second part of your  question judge nelson that city attorneys are not always policymakers yes you have the best case that says generally they are but you have a line of supreme court cases  argued in front of the united states supreme court that case came out of the ninth circuit so biased against a guy standing was was the deputy county attorney and the u s supreme court has heard arguments last week about whether the issue was a matter of public concern from from my reading about this case and what the supreme court accepted review on i would suggest that that case one way if it says it's not a matter of public concern will have no effect on what this court does but if the court says it is a matter of public concern in the case the his sponsors claim can continue i would suggest that yes i think the supreme court's decision can impact directly what this court does and how this court because the issue of policymaking wasn't specifically discussed we should disregard it i would suggest that you need to look at all the facts of this case in this case and tape dealt with and big says well we're dealing we're not dealing with a direct attack on the people you have to work with on a day to day basis we're dealing with public speech that needs  well i understand that that is one construction but if you look at the actual facts and i think now we're moving to the walker factors if you look at the ten factors that you apply first we disagree he was hired  a s office but i don't know if there are similarities here or not i don't know if for example your job was one where you were assigned to and live that and work out of the police department if you were immediate supervisor just doesn't mean what if it went down it doesn't make a difference scottsdale police department that list the job announcement that he applying for now it was through the city attorney's office but that's not mentioned in this application john he later learned that he would be assigned through the city attorney's office in the process but he sat separately and that's one of the reasons you have to look at this quote you have to look at the facts and you have to apply the ten factors five of which the district judge did not even consider or mention you have to look at city attorney your primary client your principal client your client calls and works with the city attorney the police department that's who he advised that's the only place he protected when you give these factual and i did want to mention about the role of disputed facts one of my this disappointments when we appeared in front of the district judge is that he seems to think that this is a straight question of law and this circuit the ninth circuit has somewhat remembered because there were questions of fact on whether that person was a policyholder so what you're faced with is what standard applies but the point is even if it were a mix question of fact or law when the district judge does not even c refer to five of what we consider to be strongly supported facts but that most worst case are disputed facts it's just a point the point is you should not label somebody just because they're an standing those few issues if there had been no letter to the editor so that the con the comment about prior issues was dealt with at the we need to have a hearing in front of the district judge on a preliminary injunction and both him if he wasn't working for the city attorney well he could be fired by the city attorney he was in the city attorney's office he understood that he was part of the city attorney's office  you if you look at the rules a harbor or a promise which are three cases this court has said specifically you look at the actual job not the inherent job functions so the fact that he worked in the city attorney's office does not change that his job was to work for the police department i'd like to reserve the two and a half minutes please the court my name is david schwartz i'm here on behalf of the city of scottsdale this is not the first time this type of issues here before this court this is another case where this court will determine whether the first amendment requires a government to continue to employ a high level confidential management employee in this particular instance in the system the attorney who criticizes the elected officials the city council and its members about how to properly administer an agency under the direction of that elected council in this case the police department this is not a black cloth that you're all writing upon fazio big whopper and the more recently hardware has released a confidential employees have all made very clear in this circuit we don't distinguish between so called associational policy maker defense and speech policy maker defense all first and then the planes are treated the same if you're a policymaker you don't have first amendment rights this is in fact generally consistent with what other circuits stupid it's frankly irrelevant what the other six circuits do  may very well be dispositive once you get all the facts and can determine that based upon the facts i don't see them in any way to be distinguishable fazio was they went that far they went and said there are enough facts here to determine that and  acknowledged for that the the real primary issue is decided in the lower court and up here is whether or not he's a policymaker all of the cases on the federal court level that addressed the issue and almost all of the lower courts have always found tourney's are those kind of policy makers they involve discretion good judgment they meet with good confidential information they often as mr guthrie did drafted ordinance go to the city council meeting prepared to address them as their lawyer they just chose not to hear from the map that particular occasion council what's your response to opposing counsel position that the policy making issue is never joined that the fact that the overall thing is there is a series of newspaper articles in which councilman acton littlefield are in a debate with the police chief and perhaps the mayor as well as to what is the proper way to administer the police department should they have changed to be quickly should we have this audit how do we implemented how fashion to be done how should we best administer the police department this court in biggs dealt with a similar issue there was a recall involving the mayor not the rest of the city council it didn't matter that there's only one member or two members of a multimeter body that was in being involved in the bait ok more specifically versus loudness county which i cite a few from the fifth circuit they've made much more explicit than i ever could that was in my supplemental psych patient what they said is when you have a new our duty to a more plain member body you can't pick and choose today i like this one tomorrow i don't like this one because today's coalition can be just a person with that person you have to stay as mr get that was required to have stayed and was told to stay neutral stay out of these political debates and that's really what's going on what they'd like you to believe is politics is only happening during the campaign you know as if nothing involved in a proper administration of an agency can ever happen if unless it's in the event during an election we all know that's not true we all can see that in the pitch every day who's up who's down because it affects everybody's each council members of the all of you to get very gender forward and moving and such further this was not just example in which the city council was destroyed and this was not just an effort half on one or two persons this was in fact an entire city council and even if it was one or two it's our position that's still makes it a political and more flint case from the first circuit also the same thing a subordinate highlevel policy making type employee cannot be involved in the debate about what is the best way to administer and a particular agency that he works in his employer because those are policy views i also want to address a little bit about the whole question of if you look at inherent duties do you look at actual facts and we think they've taken out of context of the ruse that opinion because what the ruse of talked about truck the government and he tried to say well he's a deputy county county sheriff that means automatically he's the he must be a policymaker because there are other cases that say that well that actual analysis of the particular facts that's is a question of law for this court there is no dispute about the duties we have the excerpt of record page five twenty the actual job announcement we all know exactly what it says it lists the duties here this is not a case in which there are disputes about what the duties are they may try and tell you today the dispute as to whether those inherent duties matter but i'll tell you this in the lower court they didn't make that argument i would reach from their response and most are for summary judgment hurts record back number fifty four page four line twenty two afeard listing the ten walker factors this is what they wrote additionally all parties appear to agree that in a value weighting above factors courts do not focus on the work actually performed by the particular employee but on the inherent duties of the position and what are they cite they cite big they're trying to make an end run they told the lower court look only at the inherent duties and to try to get this court now to rewrite because they didn't apparently were very successful in doing that they were right in the lower court they were wrong up here the proper focus as every other circuit say he worked for what they were reading to you from was a newspaper advertisement which i'm not certain was even cited to the lower court below the job announcement this page five twenty of the excerpts of record first sentence the police legal advisor is a member of county superior court said i'm filing this on behalf of the city now yes he primarily working for the for the police department but he was the city's lawyer the city council as a selected representative had the right to look to him to be kind of things that this court in big said made that associate attorney in a private law firm policy maker met with elected officials as necessary drafted ordinance as drafted contracts rendered legal opinions all of in the court below the testimony for himself said i have a fair amount of influence that to me seems to be the most important factor he has influence over policies and perform implemented by the police department that is a classic test for someone who is a policymaker i might point out one out one other thing out in addition to mr inherited is also being involving him to the city council the record also reflects that mr guthrie was in fact commended for his responding to inquiries by the mayor's office which is not the sort of mentioned in the briefs which you'll record of five fifty one they say there's this whole host of cases which state attorneys aren't policymakers and they cited five that they say addressed the issue three of them have been overruled by the second circuit you know in gordon versus having of rockland fourth one never even talk about it i suggest the fifth one which also came came from the district court in the second circuit has been implic overruled well i'm sure that there may well be for example finkelstein probably wouldn't be a policy maker he was civil service protection and the nature of civil service protection as which is true in both incidents castle and other places is you're not supposed to have politics involved  for people who are civil service protection it's why this case has a very narrow focus it's not the big bad wolf that the amicus industry got three tried to pretend well this is so important for everybody else because all of the employees will be chilled this is a very narrow scripted application i don't think we need to get to the pickering balance test but i wanted to spend a minute or two on it we think that if somehow you get to the stevens they said yes you apply pickering but you know what they apply it in the dispositive fashion bonds again also applies in dispositive at fashion as to political views and policy views but even those people who might not at least give a great weight and that's in line with the conic case where they talk about close working relationships you have to give deference to the government with that we have disruption both actual and reasonable apprehension in this particular case from two different aspects we're not talking as though all of their evidence feels with disruption within the police department we're talking about disruption between the city council and its lawyers the city attorney's office how do we know that not just mr bernard that in his letter not did mr pron are just testified to what we have an actual email from one of the council members saying hey i think what you did was terrible this is a conflict of interest how can my own lawyer guthrie who clearly must have been doing it with your approval mr bernard be out there criticizing me there is the evidence frankly was undisputed that there was in fact disruption of that level of trust between the city council and his lawyer and we can understand that ethical rules tell us lawyers don't criticize particularly in public their own clients secondarily there was also the disruption between mr poe narcissus of the attorney and his trust for m department was destroyed and every case has said that that disruption of trust in particularly in someone who is headed to her office who's out there acting on his own on behalf of the city attorney is sufficient justification for in appearing balance because remember pickering also pickering is is a get a pure issue of law as to which balance who wins government interest versus the first amendment students front of you and said if you're a policymaker you have no first amendment rights this circuit said in finkelstein quote we reject the proposition that prosecutors have unfettered discretion to discipline the system prosecutors for exercising the case to read but i also would hope that this court of voids what it can to create intercon in our circuits which we have cited cases from every other circuit or from most every other circuit and i want to give you to say that this speech must relate to partisan politics or to official policy of the city and this was neither to to cases it would be parker and bonds that's the tenth circuit in the seventh circuit and if you review but i want to remind this court that as you go about that the novo review that you must apply you should also remember that the teachings of the supreme ally has to clean court cases that when you're dealing with matters which have a chilling effect on first amendment when you're dealing with protected rights like the first amendment and in particular where you're dealing with conversations about important policies including police departments that there is a particular piece strict scrutiny in as opposed to reviewing things he didn't make policy there was a policy committee he wasn't even on the policy committee in the police department so to say that he made policy when there was a committee that made policy of the senior management he didn't wasn't on it and  guthrie his words were i have specific amount of influence on certain matters you know other words a policy would be presented to johnnie guthrie and he'd say wait i think that's illegal that file it's the fourth amendment and they would go back and and create looks at policies and the implications of what it's doing be armed this specific case because this is a student significant issue that needs to be looked at and the best way to reconcile the ninth circuit cases with all the