with me as co counsel nancy andersen i'm going to focus my comments today specifically asked to the savalas and free take issues because we believe the court could be reversed here should be reversed here on the issue of qualified immunity the issue comes down to whether the comments the speech that is raised here is protected speech and so we begin with the savalas analysis that basically says the controlling factor that the per state test is are the statements ma pursuant to their duties never thought that that's not we don't have any factual development on the record on that was and this is the development in the law that came up both it why do we have jurisdiction to look at this in any event well run or be mean these are the six thirty of this record you have the issue blocked out on what the duties were of these individuals what they claim their duties were and we did argue this below this was part of our agreement that this wasn't protected speech and input to specific what they said their duties were at six thirty is this the role responsibility of the plaintiffs is to quote develop day and maintain the k c d o t travel model quality control measures to enhance model accountability in credibility and to address issues related to travel model applications including the concurrency program so that's what their duties were and so when you look at this whole case this whole case has been an internal complaint at page five of this record they say in their complaint we've gone through all these internal complaints and now we're going to file this lawsuit because we've been retaliated and what about the complaint  go you know the king county code specifically says that three point four two point zero one zero that employees can complain to the inputs mn my response is it's part of the internal open door mechanism for complaints and i think that the court is focused on the next issue which is what were the complaints here well they did complain to the union but free take says take a look at the collective bargaining agreement if that's part of that process that's ok and that's one sixty eight of the record we do have the collecting of collective bargaining agreement or it's one sixty one rather then they complain to the office of civil rights and here's where king county code twelve eighteen kicks ten and twelve eighteen zero two zero zero g s says employees of king county can complain about the employment situation to the office of civil rights again they have this is not like three tape where she was complaining to senator polanco this is a specific internal process that's been created designated for employees to comply and then the court raised the i'm bushman issue and i think there is one  what judge reinhart found that that was in the freezer and then you know the case much better than i well i don't know if i know it better but i'm trying to understand i know what the supreme court and reject is the notion that if someone's duty is to make these reports then they are still within the confines of their job but you're saying now in the context of this structure how do you do that where you raise it internally to your supervisors you raise it with them but it's months but you have those abilities to do it and you should be able to do it so mr reilly i'm looking at some bhalla sense as to the one thing at justice kennedy's opinion at  it's like page one nine hundred sixty one and in that case he wrote a public employer that wishes to encourage its employees to voice concerns privately retains the godson of instituting internal policies and procedures that are receptive to employee criticism what would you say that's what the correct here correct your honor it's not only the ombudsman it was the collective bargaining agreement process it was the human resource progress and and certainly this record would beg to say that they thought invited to complain because they had six complaints all these investigations that took place certainly they were complaining but it record of five they even admit it was internal complaining here so i do think that's that's pertinent i think i do want to address one issue that i think is a fair issue here in that the pelleas of rays that if you look at page four eighty eight of the record there is a citizen's complaint out there and there's a form that says is complaint and they fill that out and then they attach to it the exact copy of what they submitted to the m bushman but if you look at their record it for eighty eight the citizens complaint is to the and this is why i want to stress the free tag case because in the free think case the court was concerned with whether it was at five forty six a free whether the individual was expected to air the complaints to that particular individual so in this case we have the king county code that is indicating to these individuals they should raise it to the inputs mn and if this citizen complaint form is specifically designated  encourage employees who have a grievance about some action by a county official to give that public citizen a place to go with a complaint i think so is it really so they're not calling the king county executive or a king kind of council member every time they have a complaint about the road to far yeah i think that's a fair reading of it i think in this case though if the free take opinion stands as words are that who is the person to whom that person should air their complaints they were specifically airing their complaints again englishman which was part of the process and the record shows that after the in bushman received this complaint it was referred internally back to the roads department an expert was retained outside to review appeared at a board of education meeting in the teacher's capacity as a private citizen complaining about whatever the issue was relating to the funding of the school that that would be kind of classic first amendment protected speech how is that different from a county employee who in his pasadena as a private citizen goes home at night and says i think that this particular unit within the duties to be quality control that was the teacher but i'm trying to draw the distinction be trying to figure out what difference it makes if the teacher thinks that's a private person without regard to its position as the teacher that the schools are not being adequately supported and wants to make that complaint known to elected officials it has to be something that ceasing the government for redress of grievances that's protected by the first amendment and the fact that the person and the teacher is sort of the site's a boy if we can conclude that he's not wearing his or her teacher hat or if it's not all you can say and i think it's a fair question i don't have a perfect answer my best response would be the teacher's job was not specifically quality control like these people said so she's getting up as an individual citizen that's one thing but when your job is to do quality control on the educational system like an internal school auditors i think that would be a different case and that's my time i hope for one more minute there a bottle and that would be  briefing and that even continues with the supplemental briefing and your honor is observation that we don't even have a factual record on that the factual record we do have shows that at best it's a fact dispute and one thing that hasn't come out is how the frights court handled that even from a final verdict the court sent to chase back and said even with improper factors considered we're night or district court had the benefit of the supreme court's guidance of allah but here we go a step further because there's ample opportunity to straighten it out and it's clear that it's all factual dispute so interesting and still says that we quoted their framing of it as my client's meddling with people with other people strawbs but what freitag shows is that even if it was initially their job wrong through memos that were part of right off here it was internal but we wouldn't concede that there were part of the joy of the other ones characterizing that as meddling from the beginning so they're the ones disputing the characterization they going to lose some of the portions of your claim because of the fact that there were clearly statements that were made in part as a result of the position that your clients occupy commenting stipulate that the scope of the bio's is changes the landscape i think you should be forced to do is whether it's clearly as a matter of law in this case clear enough to say that given the record that's before the district court and before us therefore there's no room for any kind of dispute because at this state we have to be able to say we accept perhaps hadn't gotten to answer from judge form and if i screw up there may well not be any part of the claim that's lost because when they started to voice their complaints in the course of their jobs the response from the defendants supervisors words you're out on line that's not your business get back to work and that's when the door just may one memo that's in the record so instead of all states basically transfer the retaliation and or perhaps whistleblower damages under state law the question is whether or not you've still got a federal one thousand and three cause of action under symbolic supposed explicitly limited his claim to reach valuation about the memo and that was either tactical or strategic choice that was hindsight well when you read the supreme court's opinion you you say well maybe he would chose otherwise but he  point i think we have to give heed to savalas observation that federal judges are not supposed to be sitting at sort of super employers looking over the shoulders of public managers that public  certain amount of latitude to manage and if an employee says i'm not going to do the project work that you gave me i don't think it's a violation of federal law for an employer to say get back to work or face the consequence that's true i had those facts i could have walked into the ombudsman and said i'm complaining about these developers getting favorites i could have filled out that very same form the difference in the forms is that for most subject to public disclosure they went with their name the employee informed you could be anonymous if you're concerned that maybe they'll be some retaliation so if but i'm not sure if the remedy is if the characterization of the speech that it's causing  difficulty we have to decide whether or not the speech is protected by the first amendment if it isn't then under some follows the employer can take action and it may or may not constitute a violation of a and they can stand on their heads and say they're quality control and all that and they're really they're just flat out on the wrong side of that they're not being paid to go in it as citizens and fill out a citizen form whistleblower complaint so i think it comes down to whether it was part of their duties and then a forum in which they voice that was part of an internal mechanism that would fall within the ambit of what justice kennedy said that would be one  page twenty eight no three for purposes of this appeal only the poems assume the plaintiffs complaints qualify as protected speech the rest of their appeal so fact intensive that i think it was did allow a supplemental brief and i don't really word waive that the second point i would make is again i don't think there's a lot of debate here that these were internal complaints i think there is an issue that i think we've addressed pertaining to the  under free and free takers who is it they're supposed to complain to and that's the test that they use and the in bushman would be one of those and finally the comment about whether they're out of line or not i would say no if you look at the record for seventy two was specifically asking these people to provide the consultation is just they came out with reasonable traffic forecasting modelers disagreed and that's what this case is all about the reality is they do have a remedy it's the