speech and adverse employment action and a causal connection between the two now in this case we have a terminations letter my claim its employment was terminated the termination letter specifically states three instances of speech which were the reasons for his termination so it issue here is the first element whether that speech those three instances of speech were protected speech you know i think that there's been a lot of there's a lot of case law on this regarding what is constitutionally protected speech for somebody a public employee  essentially it boils down to whether he's speaking on a matter involving the operation of the public his public employment or whether he's speaking on a matter of public concern a sort of i think the parameters were set by the two recent supreme court decisions in our city where they found that it was a speech that fell within the scope of his employment as a public employee and more recently in the lane versus frank  now i'd like to state that this case is very fact driven i'd like to say that one of the overriding concerns here is that when my client received a copy of the speech from the city manager was also given to all the members of the council so if you would look at it was already disclosed to people outside of the city administration and that was not by my client no my clients and subsequently sent a copy of the letter and this is the letter that i think in my refit called the p p letter where they're saying there as of a future date october second they're going to withdraw all their liability insurance then is without liability insurance whether the the city can still operate or the village can still operate a fire so my client based on the letter that he received from the council and from talking with the city village manager sent sent out the e mail i'm just missing something here i must have a complete misunderstanding of the facts i thought that the city manager turned the email over to your client several days before the city council meeting ok this happened on a friday afternoon he it was an email that was sent to the head of the fire department the head of the police department and to all the city council members then on the following monday it was disclosed at the city council meeting no email that my client sent to the members of the fire department occurred on a saturday and secondly in that letter he's relating that his conversation with the manager that the possibility of the fire department might be closing and sending them a copy of a letter that he got bad he had received from the city manager so really were were to disclosures to your client one in the meeting with dumas and then the second one where he's copied on the email i want to others that that they both occur on friday and then he sends out his email on saturday yes ok then there were two disclosures but at the second one it was a meeting that was for some other purpose and the subject of this letter which he had already disseminated came up and he asked if it meant that there was a clause in the apartment and she said that's what it looks like words to that effect then he wrote the e mail because he felt people should know about the severity of the situation if they lose do in fact cannot find new liability insurance that's the e mail he sends to his employees and the capacity is fired that's correct now your honor i believe that once he says that he made the e mail says he sent it is a fire chief and he admits that he's sending it in the course of his duties as our chief that's what as i understand it he says in his deposition at least with respect to e mail it becomes harder to see how that's a matter of public concern as opposed to something between the fire chief and his employees your honor i think that there is that we have to look to the garcetti decision which tells you what it would be within the within the scope of the employment it's a quote whether the speech issue is ordinarily within the scope of the employee's duties not whether it merely concerns those duties and that's the distinction that are said he drawls that the u s supreme court picks up in frank's now in this case the issue the  district court said that looking at the same facts that you just mentioned this is nothing more than a personnel issue but if this is a personal what unite can see that my client would ordinarily be involved in personnel issues but this is the terminations of whether one employee can be fired or another the normal person this is a question of whether the whole department is going to be closed tomorrow i'm trying to figure out is under the first step of the guards said he in korea which is whether he was speaking as a citizen as to how you turn at least with respect to the e mail and e mail that went out and his capacity is higher chief any and he admits he was speaking as the fire chief to his employees how is he how do you now characterize that as speaking out as a citizen the  he focuses on the job duties is this fall within his job duties and what i'm pointing out to use in your honor is that the question here is whether or not the fire department is going to remain open or closed that's not within his normal job duties that's something higher that's a city manager and in the council's decision what would you say that we look to a job description and if it's not specifically spelled out in the job description i telling the employees his own employees they may lose a job then  then he becomes speaking as a citizen is that how you get it it doesn't matter whether the speech occurs at work or on it but it can still be protected speech now i think you have to look at the guard said the decision because that defines one of the parameters in that case the the attorney who was complaining that he had been retaliate wrote a memo that was part of his that was part of his ordinary the word marry work that he did he wrote many of those memos and he was complaining about one that was critical of the f b i was the one that he was right when he sends the e mail was he speaking as an employee you're on your honor i believe it's hard to say he was not speaking as an employee because he doesn't have any control over whether the fire department is go to be closed or whether it's going to remain open that's outside the scope of his duties what complicates matter is he sent it on the official email and i will concede that it did on an official e mail in his capacity as the fire chief he said he signed he signed it as fire chief so if we assume then that he's speaking as an employee then the next part of that first test is whether it's a matter only of personal interest can be separated from the closing of the fire department because these people are going to lose their job because of their merits they're losing it because the fire department for reasons beyond their control is closing so that is an issue that's of not of his personal concern but it's what he says when he when he's asked cast this what you're looking at what it says what he actually said in his deposition was i believe they need to know he didn't say why they needed to know he said they need to know you're on a bad only applies to the saturday email he was also terminated because of the posting on his facebook page after the after the meeting and because of a conversation he had with an acquaintance he knew had a different fire department concerning how you went about getting conversation with the other person was as a private citizen he wasn't acting in his capacity as a fire chief then so i think the district court has focused in on one aspect of this and  but it's broader than that and besides i don't believe that if you read the car city case it's it's important that the speech has to be part of his normal job duties and in this case whether we might you're going to continue to operate a fire department is outside the scope of his job duties it involves him that's the that's the quote that i said it concerns his employment but it's not within the scope of his and for those reasons we job in fact when that you'll see that your red light is on you're welcome to keep going but it is i was simply going to say those are too vague in order we don't know who the conscript person is or why they left that's too big the claim  f an interest in safety or stability that outweighs my client's free speech or it thank you thank you employees thereby causing them fear that they could potentially lose their jobs mr mubarak's actions adversely affected employing the morale and cause some of them to leave the position at the fire department the district not of public concern and second mr goss is entitled to qualified immunity because her decision to terminate mr hope was reasonable in clearly not a violation of his rights as the first p holbrook spoke in his official capacity as a fire chief about matters of public concern that were not of the matters of public concern what can you say that this is not a matter of public concern yes your honor that goes to the second element in determining whether or not a employees public employees speech is protected the united states supreme court has to find a matter of public concern to include matters of political social or other concerns of the community not having the former department sort of thousand and fourteen e mail that mr holbrook sent to his employees it states as follows if the bill was just not find another insurance carrier we could potentially be out of a job there is no reference in this communication or concern that if the insurance carrier is found we could potentially be out of a job in other words the whole fire department could be closed now there are some implicit aspects to what i had there but isn't that me you have a fire department if the employees lose their job well that's at this point when mr mcgurk sent that e mail it was all speculation it wasn't certain that the people that the fire department was going to close have to be certain of a problem in order for it to be a matter of public concern or can he not say gee if if this happens and that happens something terrible will happen to the village and it doesn't happen and he does not have to be certain how there but it's important what the district court considered as whether this was this speech was a matter of internal personal disputes and it's our position that this was an internal personnel dispute because it relates to the issue of the loss of liability and the repartee that i think cations that could occur these individuals losing their job and being displaced understand that argument if if what the e mail said was john jones has been stealing from the fire department and i think he should be fired that conceivably would be something that the fire chief should be doing is a matter of his regular duties as a fire chief and if he's you know making up something about john jones then it would be legitimate to fire the fire chief for that statement but here it's a much more general kind of thing and normally insurance coverage i would think it's not an issue that the fire chief deals with your honor in just because the fire chief doesn't deal with personnel issues or doesn't deal with the loss of insurance liability this court is h his description and whether that's required under this court's precedent it's not required for this court to hold that officer or excuse me chief was acting in his official job duties furthermore he both received and relayed the information concerning job loss and the closure of the fire department in his as his role as a fire chief if that's not enough for this court to hold that he was acting in his duty as point twenty four he admits that he was doing all of this information in his role as fire chief i think part of the problem here is we're kind of skipping back and forth between bruce components seems to me it's a hard role for you to take to say this wasn't a matter of public concern no employees no fire department seems to be the public should be concerned about that so for focusing in on the first part of the test you can make a pretty good the fire department police department a maintenance department are in jeopardy if we don't get insurance they may face even more severe issues that sounds like it's getting more towards public concern  employment concerns in the e mail so why am i wrong about that i mean if you look at the facebook post was directed to you it was directed to our current and past employees the fire department i mean presumably you're making something public to the past employees so that they can apply whatever pressure they have on the city right yes and just because it seems to me that's different than looking at the employment status of current employees i give you that one here but when you throw in the past employees why would you throw in the past employees if it's a matter of simply some sort of internal matter they're not part of the city anymore excuse me they're not part of the fire department at that point where if you look at the terminations letter from august twenty sixth two thousand and fourteen it specifically states a post on facebook indicating fire department personnel would not have a job as i have october twenty sixth me act second two thousand and fourteen it's our position that that statement was only that mr homework was terminated as a result of that statement as it relates to the current employees and the past employees statement was not consider my understanding of the facebook post and i'm having trouble finding the actual facebook post but it's i'm looking at page id one thirty seven it says to all of the current slashed past employees and those who support the fire department so isn't that talking to the whole public of the village lincoln heights saying hey everybody who supports the fire department which presumably  everybody and one step fire protection and then going on into the issues of insurance so it seems to me that that is going well beyond current fire department employees two parts you just stated he was not terminated for his speech based to those those third parties or to former employees and it relates to specifically address your concerns whether or not that is a public concern as i stated previously the united states supreme court has held that it's important to look at the context of the statement that was given and the overall message it's our position that the overall message at this facebook post was that the village of lincoln heights could lead is insurance and as a result there could be some people misplaced book indicating fire department personnel would not have a job that doesn't seem to limit it to the post on facebook directed to current employees when it does you know on your cracked it doesn't specifically say past or  employees to post on facebook and it's creating that the fire department would not have a job as it relates to the refers to the whole of the facebook post it would seem to me i respectfully disagree your honor but nevertheless it's still not  concern and in the final product before you leave the book thing yes the district court's opinion page three ten where the district court is quoting the facebook page the district court left out the language that i was reading on page eighty one thirty seven to all of the current and past employees and those who support the fire department is what one thirty seven says but the district court opinion to wheats the and those who support the fire department do you know why there is that dilution i don't know your honor why the district court deleted that but i know later in its opinion it's the district court stated i apologize they don't have the exact page but the they did consider all of the information in front of them and made a determination that summary judgment was proper in this case the final problem that this court must consider to determine whether or not mr protected is to determine whether or not miss holbrook had a adequate justification for terminating mr holbrook confidential information in his role as fire chief despite a job requirement which was you as he admits in his deposition to testimony to maintain morale and to retain employees he breached both of those duties thereby causing a termination decision to terminate mr work was reasonable and did not clearly violate any of his rates if government official is not liable and her personal capacity and less the official violated a constitutional or statutory  and that right must be clearly established at the time of the challenge conduct or here the term nation as to the first prong of qualified immunity as it's been discussed it's our position that there was no protected activity as mr holbrooke was speaking as a public official and as a capacity as the police chief the matter did not touch public concern and that mr de moss had an adequate justification for terminating mr holbrook but even if this court were to find that there was a statutory or constitute a violation against mr obama the right was clearly it was not clearly established at the time mr holbrook decided to terminate excuse me mr moss decided to terminate mr holbrooke there's no six circuit precedent on this issue nor is there any supreme court case directly relating to any of the issues that involve this case i thought the law is pretty clearly established in terms of first his brief but it's our position that those cases are not applicable at this and this this case for brady of reasons first those issues deal and waning care study deal with matters of public concern and deal with matters of mismanagement that it is not a matter of public concern the assumption that you're making here is that if we find that there is no constitutional right that was violated then you win yes but now you're telling us but also please look at qualified immunity as an alternative base so don't we have to assume that there was a constitutional right that you have violated in order yes and you want to say but it isn't clearly established and so my question to you was why aren't lean and are said to be pretty clearly establishing what the law is here are obviously we have two different sides disagreeing as to what it is but that and knew that reasonably reasonably believe that a government employee could fire an employee for sending confidential internal management information received one within his scope of his job the duties as a fire chief there's simply no case speaking directly to that those issues and that's why it's our position that it was not clearly established it was the key to the qualified immunity the idea that this was confidential information that was given to him now that is not the key in this case it was that he was didn't matter that it was confidential that there was an internal communication spoken to mr holbrook but it is not this this issue does not turn on the fact whether or not it was confidential may briefly complete i thank you thank you counsel like to point out that the first e mail which was sent to mr holbrooke was also sent to members of village council which made it a matter of public concern obviously the village council and part of the administration of the village the issue was going to come up in the fall and they did in fact come up at the next scheduled meeting the following monday saying because something goes to the city council members it's therefore by definition i don't think that republicans are you know it wasn't confidential your honor but it was a man but they brought it to the attention they didn't attach any confidentiality to the memo i think that it was a matter and it is a matter of public concern whether the fire department continues regarding the second part of the test the balancing test now this is entirely based on a very short passage in the deposition that appears at page one one seven the closing counsel says it's fair to say that when the firefighters learned of the villages problem with the insurance it affected their morale yes some of them started looking for jobs yes did some of them leave some that passage does not try any problems in morale or people looking for another job directly to my client speech it's the bigger problem about whether or not they're maine be able to find new insurance and whether the fire department is they don't you when you're doing this balancing test that arose under pickering and subsequent cases you have to look at whether my client's particular speech was causing any  particular speech there was a counter counter way wait on maintaining government efficiency that was greater than that because it had already been about i don't understand about that argument this is decided on summary judgment right ye so at that point you've got to come forward with evidence that rebuts the basis there upon which they're seeking summary judgment they rely upon that position x or so you knew that you had the opportunity then to to address that i  take it these questions and answers were elicited by the attorney for the city in the deposition that's right so you had the chance during the deposition to have asked for any additional clarification that right for it for any number of reasons you did right well actually i point is that their case is based upon whether it's the we have to look at the affidavit what does the affidavit tell us about the fact that these people really want upset they really didn't seek other jobs they really didn't leave because of the situation essentially essentially these people left for reasons that we do we don't necessarily know he says yes some of them what was morale problems we don't know what the morale problems we don't know who the people work it's some of sort of looking for jobs again affidavit doesn't add anything it doesn't short question and answer in the deposition i like your honor honestly i don't recall exactly my point is though that i think these reasons are set forth in the deposition are insufficient they're too speculative you can't just say well the room around problems in this claim that it was caused by my clients sending an e mail as the district court was the question was did e mail create morale problems and you can't say that based upon the deposition testimony it's yes but but it's not because of the e mail it says when the firefighters learned of the villages problem that could be anything that could be through the through the attending the meeting or that could be that could be you're saying it doesn't attribute it to the e mail as opposed to other sources of information that's exactly correct your that was my point i'm sorry if i read you if i've confused finally i'd like to point out when the issue of qualified i believe that any any rituals official miss dumont's would have known that these are the speech especially the face book in the talking with a friend who was in the neighboring fire fire department were not were protected speech they were not made in his fishing capacity or would be fall within the scope of garcetti yet those were cited in the termination letter as grounds for terminating him so we believe that this is an unlawful restraint on on it's my client's free speech rights and we'd ask that the case be reversed on those grounds