criticize the government i'd like to make a couple of a few points about that viewpoint based prior restraint that's at the heart of this case the first point is that on on aug tenth two thousand and fifteen his brain he sent an email to chief tim doning telling him or informing him that she would not be signing the last chance agreement stated some for concerns among which and most importantly was her concern about the impact that paragraph five g she was concerned would have on her right to speak freely in response on august twelfth he changed the that paragraph slightly but the change made he allowed a very limited exception that would allow have allowed her to bring forward complaints as long as she reasonably believed in the department's estimation reasonably believed they evidence potential first amendment activities in which she would otherwise have engaged and it's impossible to course anticipate every single first amendment activity she would want to engage in in the future it was also insufficient in her estimation as evidenced by the fact that she didn't sign the agreement on on aug twelfth and got fired for her  that second point i'd like to makes i'd like to address something that is in the district court's opinion one of the bases of the district court's opinion was that this this limitation on ms bruni's free speech rights was in the context of an employment agreement and it is a court as well therefore it presumably dictated her speaking whether she was speaking as a private citizen or a public employee and your argument as to why this bernie was speaking as a private student says seems to be focused more on on her formal job duties but at least and in my review of the car said the case it seems to instruct us that we must take up what they call a practical approach and that we should look beyond the formal job duties here the practical approach and seems to show that mr browning went to the event knowing that she was part of the department and was facilitating a discussion with the community which is something she described as part of her duties in the job description that she herself drafted and so i'm just curious serve you can city of springfield police department and they span a community she did not have a duty as a spokesperson for the department of her her duties as a way as i'm really between the supreme court has told us that you don't just follow a written description in this case she was clearly there was a department representative she was paid by the department to attend she wore her work attire at that  event and she regularly attended similar events discussing racial profiling how could she not have been a public employee in that she would certainly have a public employee but the issue is that she wasn't f employee and let's talk more about the prior restraint the scope of five g or perhaps you can tell us why the individual name defendants are not entitled to qualified immunity as a judge of the ninth circuit's decision in july versus delmore was the fact that the eugene city charter specifically gave this city council and the city manager the role of  having final policy making authority in the city charter and for that reason then i'm sure it would not presume to place that the final policy making authority somewhere other than where t if it's silent if there's no express delegation to the chief then does that reside either with the city manager or failing that the city council no your honor because into that void  who is the human resources director she agreed that that team dhoni had final thought policy making authority of personnel decisions and the city manager i'm selfish you know for multi who said that he has absolutely nothing the language is different with respect to the city specific terms all i have your honor is the is the court's characterization of that language as having firmly at least in this type of city that the final authority is with the city council absent something express by the city council i'm not aware that you're so from your perspective oregon laws just left  that that's true your honor and saw the signature be a delegation of authority to the chief of police couldn't there be a delegation of authority to the chief of police police such that the chief of police  city springfield could have legislated the identity of the of the person or a body that had final policy making authority but chose not to the only mention actually in that in the springfield city charter of any role that the city manager would have employment policy is that he has the authority authorities actually instructed to prescribe rules but any rules that made the chief the final authority in this type of an instance i'm not aware rely for that but what some people say was a situation but nothing official right there's nothing official other than the testimony of the three clique key players who have a change to talk about the substance of the restriction wouldn't you say that this restriction is which is the problem with that which is why it's such a it is so obnoxious to just the first amendment is the agreement in this case restricting more broad or narrow speech then in our case about it being justified the appeal is make the argument essentially that because they were concerned about things you might say that governments seek to silence people they're doing so because they're big because usually they're afraid of what that that individual might say they might like what the person says are for your argument let's hear from the city it please the court i was mark sherman on behalf of defendants and first of all i'd like to put this case into perspective when counsel speaks about the so called prior restraint that was part of the that he says was part of the last chance agreement you have to look at the context of this case the prior to the last chance agreement arose because of an ongoing internal affairs investigation that led to discipline being imposed against the plaintiff now she her choice was either terminations or because of her long years of service she could accept discipline which included the last chance agreement the last chance agreement was based on the police department's general order twenty six point one point one now as far as we know in the record that order which is the police department's code of conduct for all its members and covers twenty eight separate sections of a range of behaviors that are proscribed by members when they're on duty also includes a non disparag that code of conduct as far as we know have been in place all twelve years that plaintiff was a member of the springfield police department she never complained about that code of conduct in that specific provision her union which she was a member of for twelve years a robust police union called the springfield police association never complained about that not relevant code of conduct yes this is relevant because the last chance agreement is consistent with the code of conduct and it states that she can bring complaints in her capacity as a public employee it makes no mention of her capacity as a private citizen and more importantly she raised one concern about the last chance agreement when she was given it and she was advised to speak with an attorney she had or union representative with her through all the disciplinary proceedings the only concern she raised was that she would be unable she thought she would be unable to bring complaints of things like discrimination and profiling in her capacity as an employee what would you agree coun l if you look at paragraph five even as extirpated by the chief in attempt to try to get things resolved it's extraordinarily broad it would bar any disparagement or disagreement about city services generally elected officials services employees having nothing to do with discrimination with the things that she was normally supposed to be doing doesn't that fall almost squarely in the far doesn't it i don't believe it does because the union knew about it for who knows how many years as you know have to do with it every day how many complaints before what does that have to do with anything well let's say let's say it was broad and you bring in the then many cases tell us that if there's a suspicion if there's a reasonable suspicion or reasonable concern that an employee might disrupt police operations then a restriction of that employee's speech beyond the narrow confines of what might be and it goes well beyond the police i mean you read that five g arguably if she had a complaint about the city council and trash pickup she could have just said anything about it because it was so broad but she never raised any concern that that was the reason why she didn't sign the agreement she's raising it now and in relation to what happened to her i don't understand you know there's maybe some problem with some law for many years but it until it's raise and now we have to we have to address it and we deal with it i don't know just because you never raised it before at seems like you're trying to make a waiver argument that i'm not sure i understand  let me ask you with respect to this prior restraint claim in moon and versus ties seems we found a prior restraint on speech are you familiar with unit versus type where there was even narrower restriction than the speech restricted here in meat and moon in the speech restricted dealt with the canine program and the interdiction program arguably a somewhat narrow subjects and subjects that might often overlap with work related speech here the restriction on barone bars anything disparaging about the city or the department well let me just ask you do you can see that the restriction here is broader than that in moon  the statute here is silent as to any any effect on speech as a private citizen on matters of public concern so if you look at a case that you cited in moon in the milwaukee police association case from the seventh circuit that makes a point of saying that where the order at issue in that case didn't make any comments about didn't make any provision about the effect on the employees work as a private citizen our speech as a private citizen then you couldn't read into the the provision that it affected so the president i don't think it said it didn't affect private speech well your honor i can i don't have a right with me but i believe it said that the the order didn't say that but it didn't mention private speech so therefore the court was going to read into it that it did affect priva i think it was an e mail and it didn't say one way or the other as you know my recollection but i'm sorry i'm not saying in moon i'm saying in the milwaukee case ok well let me ask you my original question is language the restriction in this case broader or n not having moon committed to memory i'd say is similarly broad but again it's in the context of a disciplinary implementation and it's not  e mail that came out of i don't remember what exactly in moon but that affected a lot of employees words here it was tailored to one employee also if i could mention there were reasons for them to be concerned about what she might say about disrupting police operations she had made accusations that the sergeant who conducted her internal affairs investigation had lied about what he found in the investigation had falsified records in the investigation she had said that the public was outraged and they were going to march ok's with her with respect i don't think anybody on the panel can disagree about restraint within the department and  internal issues but this is so broad it could speak volumes about the operations of the city and other departments that ever touch the police department that's a problem isn't it again i can't understand if it was a problem why her union person didn't say something about it you were going to the waiver argument which doesn't make sense illegal in fact brought it up and complain about it it wouldn't be legal because again that's not something that was covered in the code of conduct that it's really relies on the code of conduct talks about fairness to all people and in all situations so it's got to be looked at in context of what it's relying just on that context but here it blocks her from discussing things while outside the context of the police department so much of what the code of conduct has to do with that asserting i suppose that the milwaukee police association case in the in the sense that because the last chance agreement didn't say anything about private speech speech as a private citizen you can't read into the fact that it was there to make an inference that it was restricting such speech and if she had asked the chief has he states in his declaration she would have been told that it made no restriction on her private speech and that's not a ninth circuit case though is a no and so i were guided by ninth circuit case it seems like that's the moon in case and it seems like the moon case is on point here and so i'm like your best argument as to why moon and should be distinguished or why this case is distinguishable from i guess as i've already kind of labored because of the i guess i would like you to weigh in on what we were discussing here earlier with mr winter is it your position that anything like the city charter grant here which is a pretty broad grant for the city manager to create general employment rules would make no decision by any type of department head such as a police chief fire chief or other city official who makes an employment decision subject to monella liability i think it's clear that the charter wouldn't do so because as the chief himself said he was not unrestricted in his employment decisions if he wanted to make a hiring or firing decision he had to go through the human resources department got to go through counsel for the city and has several cases discussed just because a police chief or a fire chief has the authority to hire and fire that doesn't make them the final policy maker for employment policy and that's what the charter says in fact that the unions the unions collective bargaining fire her i guess i mean i don't think the chief deciding to fire her with consultation from the entities and mentioned makes him the final policy maker for this limited hiring and firing who has a let me ask you for purposes of pickering analysis one of the countervailing points of the city can make is that there's some really important governmental objective in the policy in question moonen which my colleague sat on made it very clear that the idea of maintaining employ morale and high public regard for the city and its officials is insufficient to  countervail an unconstitutional prior restraint so we can't use that here what what is the what is the city's best argument that it has a countervailing public within the police department you're think that's disruption of the of the of the hierarchy of the police department and it is something that she had also i don't have a tagg but she had also made comments about other employees that she said were questioning her professionalism again these are all speech on personnel decisions and have nothing to do with speech on a matter of public concern i mean she never made any speech as a private citizen on a matter of public concern so yes while the agreement could forestall such speech it's all speculation because she never made any speech and she never complained about the general order to be that that made a difference in our prior restraint analysis that she didn't actually if you will violate the prior restraint technically i don't think it does because so seems like that's the whole point prior restrain t ok any other question by my colleague if not thank you counsel thank you both we appreciate your arguments a very interesting cases just now submitted and we will get you an answer soon as we can