you i want to focus really on what the court identified as critical issue on which sup a little briefing was required which is the extent to which before is to interpret the civil service rules  what impact to those rules specifically section one point two six in section seven point seven affect the appellant's rights here the first is what is the appropriate level the property interest at least to continue to employment in their permanent position i don't see anywhere in mcgraw it's a suggestion that a property interest and a probationary position is this case like m his probationary period for five months and has a six month probationary period before he was told he had to resign or be fired unlike miss mcgraw it with the city of l a they actually had a segmented review period critical gets a y in a moment but this segmented review period allowed for the person who is in the position to be reviewed in analyze every six month so there were six separate segments that you had to get through in order to say hey look this is your position for ever you said yes a percentage of the property right each month well i'm saying it creates eight expectation a reasonable expectation of having a vested property right as you go through this segment to preview period that mr palmer to the probationary period well truly kate it doesn't i don't believe it does because he wasn't a probationary employee he was a promote from within and you would just take someone from the outside and put them on probation if everyone from within automatically bypasses probation in their new position i mean i'm having trouble hire integrating all of this because when i'm looking at seven point seven i have the civil service rules that states that a permit employee's considered on leave of absence from that position while serving in a probationary position that us the rules expressway recognize that a permanent employee may also serve in a probationary position and the rules also state that an employee and a probationary position may be terminated from that position with a written notice if you're correct that a permanent employee in one capacity is not sceptic to the rules governing probationary employees even for the purposes of serving in a probationary position how does that not render seven point seven a nobody i believe seven point seven safeguard to protect employees that may be terminated but i don't think it's dispositive of the quote is not a property right what do you need the protection for you to go back to retreat back if you can terminate them from a probationary position where you can terminate someone from a probationary position with due process i think then you would say again they have to retreat to go back to the position where they passed probation yes if if they go through due process and they should have been fired from that probationary period a provision or position they can go back to their former position but the critical issue here that this isn't rule seven point seven isn't dispositive on is the issue of due process i think that's what we need to look at is was there due process was he entitled to due process so are you at year you have the almost identical to macross but then not identical and then we've gone through that are you aware of any case specifically addressing whether a prominent civil service employee has a protected property interest in a promotional continued employment when they said at least as to did not exclude probationary employment that's not exclusionary language that's just it but in essence the mcgraw the court said was we don't need to decide that particular issue because she was fired all together and we know for sure they should have done that but they did not get to the issue presented there which is an issue of a more critical issue in our case which was less critical in her because she was fired altogether which is deep was there a vested property interest in the probationary position itself were brought court never actually ok so you're asking us you don't have a specific case you're asking us to extend that i believe it's a logical extension of that particular issue when you look at the reasoning and analysis that was applied by the mcgraw court and the reasoning and analysis that was applied by the what would be reasonable employees expectation had been given the whole of the statute and you have to look at the entirety of the municipal ordinance and give it a commonsense meaning when you look at the entire given the fact that you have segmented review periods where somebody has given feedback as they're going through their provisionary position and the feedback that mister was positive was positive got the position december thirty first two thousand and twelve positive feedback in january positive feedback in february positive feedback in march positive feedback in april it wasn't until may when he repeated again what he saw was a violation of both state law with respect to overtime pay for employees and also callow statutes of regards to violation of having people that were unsupervised electricians doing work it wasn't until he reported that that then on may seventh shortly through segment number five of his employment he was told that his performance was on satisfactory to presume that entirety of his promoted position and then arbitrarily and capriciously for reasons that are illegal lose that promotion for reasons that are illegal i don't think that the civil service rules nor the ordinance that was passed intended that an employee could lose a promotion a tenured employee could lose a promotion in which they have a reasonable expectation of hanging on to that job for reasons that are illegal and that employee should be entitled to due process the whole of the civil service act revolves around this critical issue due process and i think that's what we need to look at is it was he afforded due process and if he wasn't over time and other employment matters when you were position because he could be fired yes my position is that he can be fired because he did not have a property interest in that position he still would have had a right to bring a claim his claim would not be a due process claim because he doesn't have a property interest in the i'm in the employment position his claim would be a discrimination claimant of the fia or under the under title seven it would not it would not be a due process claim process claim is created by the rules of the employer if the employer's wools do not create an expectation that the employee can only be terminated for cause than they can the employee can be terminated for any reason not or even first amendment retaliate but both of those claims he he tried to bring but failed and is now trying to bring in a due process claim to to save him but he he cannot resuscitate those claims right now when he did not have a property interest in his employment in the first place property interest as i said is only employment is only created if the rules create a reasonable extension terminating a probationary employee at out giving them a hearing for things that are contrary to public policy or they go creates a remedy it just doesn't create a property interest that's correct i want to make sure i understand your argument and why did you feel the whistleblower because because he didn't timely bring a government claimant to the government claims that under california government doing something timely it was untimely required to be brought within six months it was brought a year i'm sorry it was but a year after his claim had a crude i wanted to also address a point raised by counsel concerning the procedures the probationary procedures of providing a performance evaluation along the way he claims that that creates a property interest but the quick kiss is are clear including in mcgraw that a procedure does not in itself create a property interest is a rule that precludes the employee or from terminating an employee except for cause that creates the property as well just like ok i went through all that with counsel for the appellate but i also ask them to have a case for me i'm going to ask you to do you have a case that for the authority for the proposition that there is no protected property interest in a probationary position when an employee has a cheap permanent status is promoted to a new position and full state law case when vs county of san bernadino were permanent employee was in the position of a probation officer he was promoted to a supervisory position he failed promote i'm sorry he failed perm probation and was returned down to his probationary officer position and in that case the court held that his rejection during probation was not demotion it was not a disciplinary act because he had not acquired a property interest in that promotional position so why didn't anyone talk about why don't we have to ask you about the civil service rules because i think the charter in itself is is sufficient to get there the section one zero one one b of the charter states that an employee who is on probation can be clear how the procedure will go forward if an employee has a property interest in a prior position as you pointed out in section seven point seven the employee is put on a protected leave during the period of probation one actually covered the instance because one a one one b makes it clear that there is no property interest in the probationary position and section one zero one one a makes it clear that this because this section is a political to both entry level and non entry level positions