when you're ready good morning and may please the court my name is jim jellison i represent former you have a pike county supervisor chip davis and you have a pike county itself  issue before this court is whether a reasonable public official and supervisor davis position would look at what the clerk of the board in a way  did or sad and conclude is this person acting as a private citizen or is she acting as a public employee and like i can do a bad thing without fear of consequences if she's one but not the other one but the thing is bad no matter what and the only question is whether or not it is it's private speech or employees speech well that's the state of the law so  city versus above us makes it clear in the many many cases that follow it in addition to the cases that this court has handed down after car sadi says this that the first amendment protection applies if you're acting as a private citizen but if you're just if you're just acting as a public employee it does not yeah i understand that and it's my question is a little bit different and i think i understand your answer what your answer is going to be and i think i probably agree with it but i wan out the following the ordinary function of the qualified immunity doctrine is that we seek to protect officers who are behaving in good faith without knowing that what they're doing is wrong because and it's going to be fairly clear that what they're doing is wrong before we will hold them responsible and get past qualified immunity i get that here it's very clear to me based on the narrative that we've got in the complaint that mr davis did something the long and he darn well knew it was wrong the only issue that is of any sort of legal difficulty is whether or not the speech by the plaintiff was employee speech or private speech but mr davis was under no illusions that what he was doing was a good thing your  not prepared to concede that even even taking into account the allegations of the complaint and treating them as true and the reason i say that really segues into something i don't intend to segue into right away and that is the adverse action is this is this truly an adverse action or does supervisor davis have the right if he if he doesn't like what the clerk is proposing as an alternative i mean the narrative in the complaint i mean true or not i don't know but the narrative in the complaint is as soon as the plaintiff comes to mr davis and says the firm your wife is running is got real problems and we think and i think maybe we should bring it in house he immediately goes after her and as to the cause and districts they're running out of money and i think that that we need to to manage these in house he then sends two e mails out on the july first and july second if that's what you're referring there does appear to be that cause and effect but but this is a mistake of all but but his ability to do what he did i think is also stablish by ninth circuit precedent and i and i do want to get into that but i'm troubled i'm troubled with the public official versus versus private citizen part of this case based on the allegations of the complaint and i get that we are at the complaint stage but i'm looking at paragraph one fourteen of this complaint and and it says this it says plaintiff reminded chairman brown and he's that the chairman of the county board of supervisors plaintiff reminded chairman browned that she was per for many of the tasks the board had directed her to perform regarding the i d s contract issue and that she had not been asked to stop working on it and  this would be in our appendix eighty one and eighty two then the next paragraph one fifteen plaintiff also told chairman brown that supervisor davis had taken three shots across the bow at her during the september twenty one meeting and that she resented being harassed now by the time miss way mentor he'll according to her or her own allegations so as that she informed chairman brown hey i'm just doing what you told me to do i'm just doing my job your honor that july first meeting had already taken place and the july first and second communications from supervisor davis had already taken place there had been and executive session a a public session at that point in time where miss away myntra hero threw out her plan on how to deal with the district running out of money and even then she saying hey i'm acting as an employee i'm doing what you as my boss told me to do i just don't see how in any analysis of the facts of this case supervisor davis when he met with miss way maturity on july first could look at her and said oh you know what you're not acting as a as the clerk of our board you're acting as a private citizen here meeting with me in my office telling me what you're going to share with the other board members at an executive session i  is an employee well what your question suggests is that there was clearly established law that would have alerted supervisor davis that mc maybe if i had recused myself what you're telling me is in your role as a public official but issue you know your honor you're raising you're raising a point now that counsel and i had talked about before this oral argument because maybe it goes be a little bit beyond what were what are in the four corners of this complaint but i asked you know are you raising the auditor general reports as a basis for your first amendment meant to mend that retaliation claim first of all we can go to the complaint and we can see that there's no allegation whatsoever that supervisor davis was ever aware of those auditor general letters during the course of miss weyman trujillo's employment in other words before she resigned her employment the reality is nobody at the county knew about those going outside of the complaint a little bit here those turned out to be anonymous letters to the auditor general i in fact that a public records request i know i'm going outside of the complaint when i tell you this they didn't give me those letters but i think that that pelleas counsel will tell you that that is not a basis that they are alleging  for the first amendment retaliation case but for purposes of this court's review there is no allegation that supervisor davis was even aware of any if there were any communications between  the auditor general or the attorney general is there a private remedy here i mean what we're talking about with qualified immunity is a federal constitutional remedy for to protect whistleblowers is the plane no federal constitutional remedy she still has a remedy under state law if it turns out that she really is a whistleblower is that true arizona has something called the arizona employment protection act that's codified to title twenty three section fifteen zero one that provides them among a number of ramadan a whistleblower remedy for people who report violations either of the arizona constitution or or an arizona state statute in addition you have th persists talked about if you think that somebody has lied about you you can pursue defamation but there are those claims they were not pursued in this case and so going back to your honor to your owed to their duties simply because somebody on the the border the governmental body happened to recuse him or herself from a particular issue again davis wouldn't have any clearly established law to look at and say hey so what she does after that is really going against what she has been instructed to do well board don't actually says you should hold off on your recommendation about ending their contract with the third party administrator what what miss weyman trio does is says no i'm not prepared to hold off i'm going to do it anyway and she goes to the chairman of the board in actuality board alan is not her boss not her supervisor she as the clerk of the board reports directly to the governmental body the clerk of the board and has a letter to the board of supervisors and as alleged in the complaint the chairman of the board is sort of the natural person who is her go to person for direction and she goes to him who has the hiring and firing authority over her as it were known as it is written on the board as a whole as the as the ultimate authority  again we have an employee who is who is identifying a problem with the district she's going to the people that she needs to go to to remedy that financial problem she's meeting with people and she's appearing at public sessions and by the way she's not saying that there is crooks out here or there is theft she's saying hey as a practical matter you're running out of money the accounting we probably should use an accounting software and by the way i really don't want to do this job anymore we should hire somebody  separately as a special districts coordinator to handle these things when you look at the totality of this complaint it is clear as day that she owes her speech to her public employment and cases like coombs and kennedy you know the football coach who goes and prays at the fifty yard line i would doubt very seriously that his job description talked about going out to the fifty yard line and and praying yet this court says that that speech the kneeling and the praying as itself to your position as a football coach likewise what miss weyman true hero did here owes itself to her position as the clerk of the board and the special districts coordinator on adverse action this case may in fact be a great opportunity for this court to harmonize calls alter and noon noon yes and ginny and mole again and blair versus bethel which which talks about first amendment protections or the lack you know when somebody is in a public meeting as voted from being a vice president of the board those cases that talk about the right of public officials to actually engage in free speech in response to free speech in this case that's all the supervisor davis did is he where the a call it right or you're wrong he was criticized he chose to criticize back the action of you know that's a politics is harsh and the blair case says that and people that play in politics or the politicians or the people working directly for them they need to have thicker skin and that's not me saying it it's what the blair v says the political arena is different i'd like to reserve a minute ok if i could thank you auditor general and to the arizona attorney general's office but she didn't she didn't sign them she put her phone number on the one to the tourney general's office and so she was afraid the only reason that we raise that bolo was because it's just to show that basically the characterizations she were she was making wasn't work only for personal purposes she when she raised the issues of in her constructive discharge notice  of the conflicts of interests board member conflicts of interest violation of open meeting laws and and the accounting irregularities it wasn't only for the purpose of saying  i'm raising a constructive discharge and i would like to address the issue of constructive discharge and wrongful termination the judge kleinfeld asked about arizona does have a wrongful termination law  which is what mr johnson was talking about arest twenty three fifteen zero one but it only deals with cases of terminations it also has a constructive discharge law that says that you have to you have to give notice fifteen days notice to the employer of intolerable circumstances and allow the employer an opportunity to to respond and and that is what mr waymon trujillo was doing when she sent her at this at this point in the argument and you can educate me so that i get it right what i'm thinking is she's the special administrator special district administrator as she routinely reports to the board and she reports to the board that based on her examination of revenues and expenditures the special districts are being bled dry by super supervisor davis's wife's company which is just raised rates and it's costing a fortune and she certainly makes it clear as she was appropriate that she doesn't think it's right that a supervisors wife used to work for the county is now bleeding and dry still can't pay its bonds that's basically what the gist of it i can't see why that isn't her job it's a very unpleasant thing to have to do that happens in people's jobs all the time all kinds of jobs where you have to do something that you know is going to create a whole lot of trouble for yourself now it looks to me like what the supreme court did in car city is they said a government employee is not entitled to constitutional protection in that situation where private employee would not be entitled to constitutional protection it's in the course of her job it's an unpleasant thing there's go blowback but the constitution doesn't address it it seems like that's what they said arizona has these private remedies so it's not like it's totally unaddressable around redressal why isn't that the end of it trujillo the way this came about was in she learned that the that that accounts for those two special districts  that they were going to run out of money before the before the bonds were paid off but in her discussions with the finance manager the county finance manager that's where she learned that that there were accounting irregularities and that the the books weren't matching from one year to another it was the finance director's job to deal with that issue not miss weyman trujillo this winter heels duties included talking with the person in whose district the special district was which was chairman brown who later became chairman brown the present later became term around and to speak with the board regarding issues related to two special districts but she did not have a freestanding duty to discuss accounting irregularities from the two it is based on trial so the answer to it is basically go through her job description and find something in what she did that's outside your job description well it's not only that just of the the other piece of this is when she went to the to the to the administrator and she talked to him about these problems with i d s which was mrs davis is company report that there's something fishy about somebody powerful you can expect some nasty blowback correct problem that i have is as i understand the evidence here her job description included consulting with reviewing the invoices of  authorizing payment for outside services to special districts and also presenting special district information in order meetings that seems fraud enough so whether it's just an unwise decision a farm the cell or whether it's  corruption or whatever the special districts don't have the money to pay davis wife and still pay the what they have to pay bonds and stuff and i don't see why it's outside her job description because it is a distinction so broad it only be began there when mr davis recused himself he had no business discussing with her the issues related to i d s and yet he he  basically required required her to come speak with him and then required her or told her through mr board on that she that she should not continue these issues and when when he says that he should not do it remember that he had everyone knew that this was a gentleman who had the propensity to retaliate had done it in other occasions and he is a recused  person with a conflict of interest saying to her it's going to hurt me personally don't do it and she went to the chairman of the board and said i feel like that was a warning to me not to do this that was only the beginning of the conversations with regard to this she then because she felt she had to persisted with her with the raising the i d s issues and and all of the board members knew that that mr davis was retaliating against her and one of them specifically said to her look you know he's going to get what he wants he's done this in the past and then and then when she went to him basically she sent him a courtesy e mail saying look i'm going to raise these i d s issues so that you can recuse or yourself i wasn't part of her job to do that and then he immediately retaliated against her when she raised the issue of constructive discharge in which she raise all of these issues again he retaliated against her again and once she did that the board then they investigated the way it wouldn't be part of her job i mean you're expecting to raise something in front of the board that's going to make davis really mad so  you give davis a heads up on it in hopes of keeping him from causing too much harm to your judgment decision that somebody might make as part of raising the problem before the board judge even if it was normally part of her duties the the fact that she defied his directive and that he began harassing her under dalia indicates that it no longer is part of her du s he defied her directive not his direct defied his directive isn't it just a duty involves creating an issue with a very powerful individual a powerful individual starts a campaign of trying to deter damage the person who's raising the issue but it's still a job to raise the issue because in from from her point of view davis  and his wife are leading the special districts dry and that's her belly work and she has to do something about it even though it's going to cause trouble for but that's not the only issue she's raised now now as time goes on she's also raising the issues of of the fact that open meeting laws are being violated to seize clearly hearing more things about about what's going on inside these executive sessions and she's also raising the fact that he's he's he has a conflict of interest but he's not stopping his what he's doing with respect to i d s and she's also raising issues to the other board members of these accounting regular irregularities and he is and he continues to he doesn't get a free pass district for the special districts to take and at worst it's crooked corrupt i think i'll do nothing about it because davis could hurt me and it could cost me my job it seems to me that at that point she runs the risk that if this does come out from somewhere else like if the papers get a hold of it she winds up being in trouble because it was her job to raise this and she just pretended to be deaf dumb and blind and  o do anything about it at some point it's it's in the mix like i think of her job and the finance manager's job to raise issues with really expected to special district to finance manager specifically with regard to finance issues but it goes beyond that when she starts raising issues of conflicts of interest and and violating violations of opening letter point as she weighs a conflict of interest and what point does she raise problems with the meeting job description and if you're getting retaliated against because she says davis you're continuing to be involved and you're involved in violation of a conflict of interest rules that sounds like it's outside of so i want to know as best you the closest it conjure honor of actually saying when that occurred is that in it says in the notice of constructive discharge and on paragraph one thirty nine it at excerpt eighty four it says in her oct sixteenth twenty fifteen letter plaintiff's specifically referred to her belief that supervisor davis is abusive in retaliatory actions stem from her disclosures to board on and board members a possible open meeting law violations conflict of interest violations of a board member and possible inaccuracies in accounting violations regarding coyote springs and cookie tale valley so that's the first place that it's actually mentioned in but it's referring to scott conversations that she had with board members and referring to conversations that she had with mr board on and the other conversations that she had with mr board on our side are specifically stated in in the in the complaint  so were were that we have conversations where she's alleging conflict of interest let me start with the one that i can tell you right away yeah sure e r seventy four at paragraph forty nine in april timeframe plaintiff discussed before dawn in fields who was the assistant  county administrator several concerns plaintiff had regarding the springs people value her including financial problems i d s sloppy accounting practices and the year in accounting irregularities and then in in also towards the end of this  director asked if plaintiff had any other concerns about violation of open meeting last plane he said that yeah but there's a lot that's so late what i'm interested in in the would help you is any specific allegations in the complaint which you where you say that she talked about i mean any stand the davis did have a kind of they're just about where i'm interested in is did she say you have a conflict of interest or did she say to the board on or to brown or anybody else he has a conflict of interest constructive discharge as far as i can tell her duties were changed so that basically she wouldn't be reporting to the board any more about davis and his wife funneling money out that the special districts needed to pay the r interest on their bonds so i understand that she was reassigned but her pay wasn't caught she wasn't shamed in some way being assigned to be the janitor for the high school gym or bathroom or something she wasn't given a job where she'd have to commute two hours each way instead of one that was just a fifteen minute commute at her pace since her pay wasn't cut none of these other things were done to her i'm having trouble seeing why it's a constructive discharge because constructive discharge can happen with a series of events over a long period when what events make it up i mean the fact that people that she criticized criticized her by itself doesn't seem like a constructive discharge what else is she got so he went to the board to all of the assistance of the board to  all of the management and basically sought to to to raise the issue of the day after she talked with him the first the first thing you did was to claim that she was taking this this unnecessary trip was sure that he would have liked to get her fired when the bad recommendation but it didn't happen heat heat it was a little progressive so the next day he sought to inquire as to whether or not she could be fired for because her son thirteen years before in high school had worked for the for the county elections department after she raised the issue to let him know basically that she was going to raise the issue   overpaid essentially and that she didn't do her job and then when when the executive session was over and claiming that she was trying to create some sort of an empire for herself by trying to bring the jobs in house and she did this in public he did this in public in a public meeting and then he sought to to have an executive session regarding her job said to her herself if it were me i would quit and under those circumstances where the board member is saying to her you know judge you know he's going to get what he wants and the last person that met with him was fired you  well i mean she beat him because then they started taking away her job duties they started taking away her job duties they started going around her to the to the to her underlings and they started talking about figuring out how they can take away into different departments once she said her letter of constructive discharge and then the board that had acknowledged previously that yes he was retaliating all of a sudden sort of turned away from her as if you know you went too far now you've done this thing and they started going around her they quit talking to her they started taking duties away i mean it was a series of things it wasn't just and that's when she left your honor if you're looking at the complaint to see if there is a allegation that states a plausible claim that there was an open meeting law issue raised that davis was aware of or a conflict issue that was raised by way mentor here that davis is aware of it's not there when i look for it and i've been looking for and i guess to look for it again and i and i look for it and the only thing i see is in her october sixteenth letter she mentions that that's part of her constructive discharge after that letter that constructive discharge letter two things happened on the same day she was asked to leave an executive session were her own employing that was being and she was told that the responsibility for overseeing the i d s contracts were going to be moved to public works something she wanted to have done anyway these are not adverse actions we're asking this court to make the practical inquiry that the district court failed hero is alleging public speech was not subjected to adverse action and reversed the district court's ruling denying qualified immunity and if so also as to you have a pi