commission agreed with the department that department prove the charges against day that she'd attentional be and illegally made on authorized tape recordings of fellow employees on two different occasions they did not seek administrative review  agency the director of the department her coworkers and other employees at the department can no longer trust her and they may be inhibited speaking in her presence regarding their work or personal matters because she was a secretary and executive offices of the agency they were sensitive privileging confidential information that was discussed in her presence her substantial shortcoming is also such that alarmed some public opinion would recognize firing was appropriate commission disagree we have to conclude to agree with you that the commission's decision was unreasonable that's right it's a deferential standard but that doesn't mean that it's no no review and in this case we are i mean it is arbitrary and reasonable for several reasons for one reason is that she committed a criminal felonies at the workplace on two separate occasions another reason is that the commission's decision was inconsistent with with another one of  decisions so i don't know even assuming that there was a different decision why the court no two cases as i said anything the facts are worst case but even if they were equivalent they should be the same just similar circumstances why why well i mean clearly i not consistent with our finding and in those cases the appellate court said no that's not couldn't you have to either reverse subject lines or make your own their system however here they didn't even do that as you said it was extremely slide it's a one paragraph explanation on capital adopted that she did not have a nine purpose in reporting that you have six meetings so if the purpose was not benign then it must have been malicious she said no mention of a work related reason to tape the meeting so she must have been doing it for her own personal reasons discretion by imposing a ninety day suspension is a rather the discharge decision side lawyer i'd like to make to initial observations  the first observation as that even though ms day's conduct may the technical sense have violated state law there is nothing in the personnel code the rules of the department of central management services the policies of the department of juvenile justice or corrections or case law saying that conduct mandating mandated for discharge their everything in their rules that cases pension up to a state secretary being suspended for ninety days twenty five percent of your annual income loss is not here it's a  who are interested to the side these types of cases have the requisite expertise that only personnel matters saw this occasion justifying a ninety day suspension what do you think they took into  ah i think the primary consideration they took into account was the fact that she had worked fifteen years in state service not a speck of discipline i also think they took into account the context in which these two recordings took place that the first recording occurred at at a staff meeting the staff meeting that was convened at the time the department of juvenile justice was being separated from the department of corrections and there is no evidence in this record that ms day had any motive for reporting that meeting all or the end of the gather information relevant to her job at the time that back recording occurred she had no boss the she was the secretary for the school board the problem was with out of school superintendent i'm the only portions of the meeting in the paper reflects this are those portions that were late and were corrected for her area of work in fact the second day she didn't even bring the tape recorder to the meeting because the work business is not going to be done with respect to the march two thousand and eight incident i don't know that impulsive is a correct word to use but this was a spur of the moment action on her part where she took a tape recorder she had been assigned by the department placed it on her desk and for a few seconds recorded noises no conversations were recorded this may work this is an excellent the fence of your client's position concerning her activities over which was apparently considered rejected by the trier it initial trier of fact in this case the i reminded of trying to put the best possible  spin difficult fact but if i remember correctly from which the l j wrote none of this was accepted by the you know what this comes down to justice take which is the same situation this was presented with in the reading  that different people can take the same facts and can arrive at a different conclusion concerning the appropriateness of discipline and in this case it's it's not y it's not the courts it's not me it's not the attorney general's office it's the civil service commission who is in trust by law to make that call and it yet and it explained at least as research clerk in this court who were the course of the campaign revealed a memo that had been circulated turly with the score i was elected and pop without knowing any more about the facts i would have to say no they were not but the fact that was pretty harsh it was the ninety day suspension he didn't lose a quarter this year celery he was barred f practicing the profession for which he had gone to one school and he had been doing it for like five or six years and the supreme court felt that was the appropriate penalty given the circumstances or one memo on one time as lasted thirty seconds and here is a distinction that they i think mean wrong because we've we've heard in this case from the department of juvenile justice that the decision of the civil service it involved in employee with no previous disciplinary history and doing age in a tape recording but the distinctions in the rove case are are several but the first thing is the the woman that did this was  supreme reach of trust or the old reach of trust but the second thing is she went out of her way to plan this she went out and got a paper court she then tested the tape recorder to make sure that from her desk she could record private conversations the third distinction is she was clearly intending to record conversations which were private in an effort to track her costs but those are all significant that the department of juvenile justice is required to assess the ninety day suspension other than a discharge ok when she comes back to the department of juvenile justice under state law it's freed to make appropriate job so is there any reason to believe the juvenile justice department is going to they were to move this woman out of the circumstances in which all the skirt i don't think the record reflects up one way or another there was no evidence offered but the department today but not but you know here here's the point that i think we have to make here miss de voe back and behaves in an inappropriate fashion she can be discipline in the past working with her just like nothing ever here you know in state government it happens all the time that people are required to work with one another that have issues between there's nothing in the record here that it is that with the civil service commission hundred fifteen years ago it was designed to achieve to protect people who have issues the civil service commissions mission has stated and  otherwise but that's not our fault mate and merely because there may be some implication or some problem downstream because this woman comes back does not make the decision either arbitrary or unreasonable