addresses whether or not the actions that he engaged in in terms of being a whistleblower were whether or not they were outside of his official responsibilities and as we briefed in this case we believe that that is the case he was hired as a superintendent working to try and be essentially a reformer within the school district within less than seven months he discovered that there were things that were going on within them state school district were which were not only improper internally but were outside the scope of his work and he did take the actions of st speaking to the board of  education but then speaking to outside agencies law enforcement agencies in the new york state department of education to report that he was seeing items or matters that were essentially illegal engaged the accounting agency and expect the school district to pay for it yes and so what's in that part of his role as superintendent probably conceived me at a very broad responsibilities he didn't engage them as a private citizen did he he did not engage them as a private citizen that was a a matter that was decided to be done by the board itself or he him selfe did not actually found on a motion to dismiss that reporting possible corruption to the board is not part of the official duties of the superintendent of schools well i believe that in this situation the most analogous case that i can see that and we brief that is the ramirez case and it just happens to deal with the him state school district  well there you had a director of technology that reported that there was both grade inflation and fraud going with regard to that that was reported to the commissioner of education and in this situation just he failed to look underneath and look into the real issues that he was that he addressed that he had spoken to outside law enforcement agencies which is really the protected action but they didn't he have self you said he was hired to reform effect reform and the actions that he took such as hiring the audit firm and special investigators were still pursuant to his responsibilities as and and because as we were just saying he didn't undertake that  individually as an individual but since that is not right and so how is it how is it wrong to see this as pursuant to his overall supervisory responsibilities it's supervisor as yeah yeah as superintendent thank you because in this situation taking that responsibility on internally as an internal reformer is one thing but when he steps out of that role into the private citizen role in reporting that to our governmental agencies law enforcement the district attorney's office point i understand your point there but my understanding is that the educational or provides that a superintendent quote shop is as the following powers  charged with the following duties and then there's an ellipsis be to enforce all provisions of law at all rules and regulations relating to the management of the schools why isn't his approach to the doing that deal with with responsibilities within the school district enforcing the rules within the school district has access and say that it doesn't limit it to within the school district it talks about to enforce party and surely if something is going on within the district that is a violation of the criminal law something that the superintendent should be should be reporting to the law enforcement agency it is in his capacity as a superintendent i would think your honor with regard to his his reporting it to the outside agencies he did as he would as a private citizen would do that in this situation may be consistent with what a situation when we deal you have a case where both or both are happening where he could be speaking on a matter of public and sign but he's speaking to somebody that would be he'd be authorized to speak to under authorization in this situation was one that doesn't come to him simply because of his job position because of his responsibilities it comes to him having learned information that was not directly related to he was not he was not brought end for the purpose of trying to inform law enforcement we have to look at the overall responsibility if you want to superintendents or we look at all of the job responsibilities of the superintendent whether it's  job description or whether it's in a statute to see whether or not he is acting pursuant to those requirements or judge that that is one of the things that would take place and you asked me whether or not in this case of course we're looking at the gar he matthews conflict that we have here and in this situation i truly believe that his actions were those consistent with an individual that was reporting activities outside of what he was able to control and handle him self within the district there's the responsibilities would fall to any individual and the public well if you're reporting up the chain presumably your authority is not the same as the higher up that you're reporting to who has broader authorities and i'm not sure that that test that it would be in his normal kin to to to do that would be a would be would be the test i i just wonder i mean in math years there was a separate move to report to the captain and there was also a a  ed pieces or anything of that sort right the contrary judge in this situation there were two actions that were taken there was a huge december th speaking to the board two thousand and seventeen and also the january th two thousand and eighteen letter to the public that yeah but that that also is to the to the community and one of the responsibilities of the district community education people who are interested in education is to do that  contract anywhere in the record it was it is it is that appendix three on one in the record in the entire contract entire contract judge and if you like me go to point out that that's just fine thank you and nd question is mr rocker allege any financial loss in connection with this placement on paid administrative leave yes judge there are there are two that that of course we were not able to develop the record because there was no discovery of a does he allegedly such question yesterday on your stigma plus claim i don't see an allegation in the complaint that the defendant actually published something that was defamatory of the of the p correct judge at that time that the complaint was st filed the the answer would be that you are correct we were not allowed to amend the complaint we sought to do that that's my that's my nd where i'm sorry no no no you did you just anticipated it there was the letter in which you asked to supplement and amanda complaint was that the i don't see that there's a detailed allegation of what the publication was in that letter or indeed you know other possible defects in the in the complaint was that the only requests to amend the complaint you have to the decision for example on the motion to dismiss did you say give us the opportunity to a manned or did you say in your motion your opposition to the original motion to dismiss if you dismiss this complaint give us an opportunity to amend judge i'm testing my memory because i don't know the answer to the nd question but in the st the answer to the st question is we did make the  request to amend after the forty five charges as best charges best of occasions were released and became public that was the two page letter that was a two page letter that was the only request to him and that was the request  man and that situation judge and because of the unique circumstances where there was a motion that had already been filed and knowing the local judge the local judges rules in seeking a promotion conference  this situation the letter went in asking for permission to do that and or supplement our papers which was both denied those the is there anything in the judge's preet rules with respect to a pr ssion conference indicate that if you go through the pre motion conference and then there is a motion to dismiss there will be no  motion to file an amended complaint granted no judge but this was quite the reverse in this situation the application to amend the complaint came after the motion to dismiss last page of the prior volume yes ok thank you thank you very much and my nd question is is there anything that precludes you from proceeding in state court under the whistleblower provisions there and other state court actions well judge in this situation with the circumstances that existed at the time of of this dismissal saying right now right now now and with the development of additional facts there are additional facts which are would you be honors question because of the development of additional facts that come there may very well be another proceeding but the answer to your question is judge yes that based on what we have now we believe the judge hurley even though it's not fully clear  dismissed with prejudice as to the state law claims based on the notice of claim issue that raised what i thought he determined he didn't exercise he was exercising supplemental jurisdiction it it is not clear with regard to reading the decision  judge but wouldn't you be time ard because of the necessity for a timely notice of claim if you now went to the state court judge the answer the question is if we are dealing strictly with the facts as they arise under this complaint which is before you but since the since then there have been many developments which taken place in this case and we would have the ability to answer your question directly we would have the ability to proceed for claims on behalf of dr waronker in state court at this time in new notice good morning your honor when you if we may like to respond to some of the questions that the court asked because i think my answers might elucidate some of the issues raised by the court  first with respect to the contract the contract indicated is starts the end of book one continues on to book two the question was posed whether or not there was any loss of plaintiffs the answer is of course you know that's been extensively briefed and it's exactly what we argued to judge her early the issue before judge hurley was whether or not there was and whether or not there could be a deprivation and the answer has to be you know why because what the board of education did was they adopted and and administrative leave of absence with pay policy wasn't that tuesday way of circumventing the requirement of the contract before a suspension went into place dr ronn would be entitled to hear the answer to your question your honor respectful is no and the reason why the answer is no is the provision in the contract that issue that the plaintiffs seeks to use for his argument before the district court which was denied and which we urge this court to deny on appeal provides for a mechanism to adjudicate in to address issues of discipline in administrative leave of absence with pay policy adopted by the district express provides that it's not in any way a matter of discipline in fact both under state law and under precedents from this court the administration of leave of absence with pay it is not that disciplined why is it not because at the time that the board it placed him on and the ministry of live absence of the purpose of him being placed on leave was so that the board could conduct investigations as to matters pertaining to him the concern was that he might have und influence and or pressure upon employees and intimidate them from providing truthful responses and or testimony with respect to his behavior which was the subject of investigation more somehow into  discipline when the amended most of occasions were issued the answer to your question your honor is at that point in time the district had served him with specifications and charges required by his contract and placed him on a administratively of absence which is consistent with case law that says that that is a permitted basis for action by an employer in the public sector i with certain cases in our brief that indicates that the decided case law is in support of this position th circuit case law nd circuit case law that where the employer has a question as to the person's judgment and or discretion placement of the of a person on administrative leave which then becomes the subject of specifications and charges is appropriate has he been with you for the entire period he all points in time relevant before this court doctor want to was paid in for his entire salary and benefits if i may just direct the court attorney the court's attention to join of four sr courts that placement on administrative leave with pay during an investigation does not constitute adverse employment action the question was posited the answer was affirmative no there's a string of citations set forth at the bottom of that block quote and then we there's an ellipsis and we quote from that session that the nd circuit held we agree that an employee does not suffer materially adverse and those holdings are consistent isn't the question of whether or speech by a public employee as part of the public employees official duties usually decided on the basis of wall of the evidence including job description and the like on a motion for summary judgment rather than a motion to dismiss not where the where the matter can be decided as a matter of law i'm sorry not where the matter can be decided as a matter of law and so i would like to point out two issues and where are the presidential cases  speech such as this is within the official duties of the superintendent of schools i'm very grateful that you asked that question i direct your attention please to page twenty six of our brief was not a case about superintendent of schools no but casey versus west las vegas i in the school district of the th circuit two thousand and seven is a profession but not of the same level as a superintendent of schools to a police officer not somebody who is a superintendent in control of an agency the court previously the supreme court has recently said in and franks that our presidents have recognized that speech by public employees and subject matter related to their employment has special value precisely because those employees gain knowledge of matters of public concern through their employment and it seems to me that is exactly what dr walker is alleging happened here he took on a very broad you know big job with a lot of responsibility and learned some  evidence of matters of public concern such as corruption of different levels and took actions to in accordance with the law to make things right or to investigate what was going on and he lost his job as a result maybe not pay but he lost his job as a result and i'm troubled i'm troubled by that i mean on the one hand one doesn't have the right to a high level public job where you're in disagreement with the ultimate controlling body necessarily but he seems to have taken proper steps to bring this matter to the board's attention i'm white why wasn't he acting when writing to the members of the community on a matter of public there's no evidence in the record that the employment action taken with respect to dr walker had anything to do with his now alleged free speech actions no i understand your question and i agree with you your honor however the reason i believe why judge hurley dismissed the complaint is that because the complaint fails to state a cause of action as a matter of law  you think and i'm urging that this court find that so i would just like to point out to you your honor that the i think this effort is not was saying the fact it may be a matter of public concern very often people who were pointed out that employees there are instances where employees see that something is coming their way that's an adverse employment action and take efforts to try to create  really make any any landings to that effect that he was he was he was manufacturing these particular statements to the various people because he was about to be fired or about to be disciplined no actually your honor that was our contention the judgment never needed to reach that issue you didn't reach it needed or not you didn't you didn't you didn't reach it because if you're right you're right he found out on another basis he found and and to answer now  your honour's question and i agree with you he never reached that question because he found as a matter of law that the speech that is at issue is not a st amendment protected speech issue is speech in the course of his conduct in performance of his own employment didn't speak as a public citizen and our contention not only is it that he absolutely did not but if i may i would like to if i could run you through his complaint and run you through his declaration that was presented to the court before judge fairly because he said that he did it as superintendent of schools if i might for just a moment isn't there a distinction between whether he is doing it and superintendent of schools and whether that pursuant to his official duties there is no question that the letter that he wrote to the community he signed that superintendent of schools he was sharing with gnome what he had learned as superintendent of schools that it would seem as a slightly different question from whether it was part of his official duties and the superintendent of schools to write that letter to the community so then the question is how could we say as a matter of law on what basis that that was part of his official duties as the superintendent of schools but i direct your attention to joint appendix page thirty four through thirty five we can start there because it is dr braun of her who plea schools i wrote down earlier your honor when you asked the question whether or not this was part and parcel of the agenda by which he was hired by the private board that his purpose was to try to seek out what he perceived to be corruption paragraph one hundred and seventy four dollars if i'm a plaintiff stuck to one of her and superintendent of defendant school district i'm going to ask you if i might just hard stop he does not say as a citizen i whether as a matter of law this was part of his official duties as the superintendent of schools well that if i may your honor because i understand your question at that to point out two items  i could not agree more with our distinguished jurist when he asked the question of opposing counsel under section seven hundred and eleven support to the superintendent of schools his obligation is to enforce  laws so just to run the gamut of the issues that pop up in a school district if god forbid a teacher is discovered to have had an improper physical relationship with the student superintendent can't prosecute that person he must report that he must report that both to the office of professional responsibility is up at an at and why a cd that's in new york state education department and also to the appropriate authorities the superintendent schools are the ability to incarcerate his performance as the superintendent of schools and the trying to drum up public support for his continued employment as as the active person controlling the decisions to be made as a superintendent of schools if i could just direct your attention for a moment the official duties of the superintendent of schools to explore his performance superintendent of schools to the community no but your honor and that's a great question the the issue that you're raising is one that argued and discussed at length by the th circuit in their decision regarding a superintendent of schools where the court held that the position of the superintendent schools is inherently a political position it involves working with a board of trustees in local politics and there are often times when the person who's sitting in that position runs afoul of changing politics and one of the many powers that public employer has is the ability to buy out that person in the title of their contract that's because and then the court went further to reason indeed it's hard it's a hard pressed notion to say that any superintendent has any reasonable expectation of even finishing out a contract and in that case that superintendent left that employ and became employed during the pendency of that action as a superintend the schools in georgia so i think the right  he is not a teacher who outside of the confines of his or her position of employment is reporting on transgressions like the misuse of funds for the track which would be way outside of that person's job duties as a science teacher i would like to point out just to when you close your go here and make one last last comment we've kept you well past your time and i thank you so much for the opportunity to try to argue the points  two points very quick joint appendix pages eighty six through eighty seven those are the portions of dr or anchors declaration submitted to judge h in which he argues that he personally was engaged as he sees himself in his own role that he was in to investigate crimes to investigate corruption he was involved personally in the of the forensic orders he brags that counsel was being protective that that would not be necessary for us ok he brags that he is the one who gets the forensic firm is secured and engaged in context what is primary focus was for his employ what he had been doing for the six months signed off on each of those as superintendent of schools he's not acting as a private citizen and he's acting as the as the chief executive officer and acting in accordance with his his obligations as the employer thank you for your argument thank you all for hearing me mr brenton you have two minutes of rebuttal very brief just to answer that st just go to leave your question concerning the casey case that was referenced that was a summary judgment matter and we referred to that page twenty eight and twenty nine of our brief of our main brief to answer the question as to  would have allowed us to address that you're right at the very beginning i think that there was a real question as to that when you think there's a reason to believe that he would have avoided suspension and he had a pretty deprivation hearing yes and why is that given how all this is unfolded as your allegations well it's difficult to i mean you can't say we're getting in a crystal ball but it's in to very difficult point but judge to answer your question as best i can is that in this situation if he had had a pre deprivation a hearing and had the opportunity to lose a date the ill claims at that point be that he was being it was under an investigation and they were looking at his actions with regard to building and other matters there were people that would have been available to provide information including former counsel on that was there at the time that he came on board counsel changed at some point and it was at that time that that matters for introduction already very good i think was no discovery conducted understand i'm not saying that i'm saying what specifically would you could you chiva discovery you think you might be able to achieve and in discovery not not whether you could definitely do it or not but what question be the questions would be st of all with regard to the actions of the school board we know that with the electronic information it would be so we would seeking the e mails that address this very issue and what was being discussed  my colleagues question likely had lation any additional statements that he made to the public or anything we have that i don't think they were it doesn't seem to me that that would be altered right that is that is correct if there were that would not be right so so all of the all the questions relating to whether he spoke as a private citizen versus pursuant to his duties as is is in the record now it's part of the complaint and part of that part of the decision of