recognized that in actually had suggested and said that maybe that terry versus cooke and needed and and bonk review because it may be inconsistent with the brandy case from the u s supreme court and so we have preserved that made during his employment work not protected under the first amendment and what the court ruled was that they award number of the disclosures that he had made or made as a an employee versus as a private citizen state much better challenge seems to me your client was either acting within the scope of his duties or he was furthering private interests i don't see in a matter of public concern on any of those flight much so you tell too to essentially avoid an arrest and that was one on the belly button and david benton matter the second was on bradley fellows who was employed under another captain not under mr ra mishandled contraband and used excessive force and just because you're a police officer does not mean that you can't report wrongdoing within your agency and if the pully on case where you have a law enforcement officer i don't disagree with that but wh could be argued with it in the carollo case that the city manager had an obligation to report wrongdoing by city council members and the same could be argued with the pulley on case that the police officer just because he was reporting on wrongdoing that that vaughn had reported his methamphetamine use and he had reported that he had it lying on his employment application about having prior drug abuse treatment so i do not believe in this would be under the ordinary job duties underlying versus frank would it be part of his ordinary job duties to report a law on an employment application and it would not be part of his normal job duties the third would be the jeremy branch matter and this was donnie branch was the  second in command he was the chief deputy under the sheriff and he had reported that there had been evidence that was destroyed and actually had it would the whole arrest of jeremy branch had been eliminated from the system and that mr ray vaughn had gone to the florida department of water foresman and actually had reported that this whole incident had been swept away that there was no evidence of him ever having been arrested and it would not be part of his ordinary job duties underlying to have reported that the sonne who was also happened to be a city a city and city commissioner or county commissioner that he had been arrested and that all of the records regarding that arrest had been eliminated so i agree with you that's not part of his ordinary job duties but but here's my concern about that and maybe you can correct me maybe i have a mistaken understanding of the record my understanding is that there's report to the f t l late they day they said that but the problem with that is that there's a disputed issue but you're all fact on that issue and that is is that the attitude began to change against him he was demoted or moved into the co wary of two thousand and fifteen these reports about mr branch about jeremy branch were and jill i think was july fourteenth that he was interviewed by f t only and then you have all of the other incidents that began to happen between july two thousand and fourteen and i believe the date was january thirteenth two thousand and fifteen when he sent an e mail about whether mr bradley fellows should have been prosecuted and there's an error in our brave or we say we use the december fourteenth date on the bradley fellows matter and we say it's a matter of weeks there's actually a shortened time period it is a matter of weeks because he his report on bradley fellows to try to get mr felos prosecuted by the state attorney's office was actually january of two thousand and fifteen and he is demoted or transferred into the cold case position taken from his captain position transferred to work one case all of his duties and responsibilities are removed from the drug forced house drug task force the criminal investigations division that was within a matter of weeks of him asking that bradley fellows be prosecuted is there anything in the record that undermines the doing it to the issue about what he had reported that we believe was still covered under the first amendment and the asking for the criminal prosecution was a big deal and when he requested and that is found o pages one twenty four one twenty five of the transcript and there was an e mail that was sent by a subordinate employee and we never got the e mail and discovery that ray vaughan around the same time period requesting that criminal action be taken against bradley fellows for the perjury but he discussed it on pages one twenty four and one twenty five during his testimony that he had actually sent an email up the chain of command requesting that  prosecuted so that would be another matter that should have been protected by the first amendment and you are going to the directed verdict issue yes there was testimony that was on the three issues that the court allowed to go forward and on the whistleblower claim because the first amendment was not even allowed the first amendment clothes were not even allowed to go forward at all but the on the three whistleblower claims were claiming that the court had verdict there was competing evidence to show that the people who had complained about him because the whole issue became whether this was just a business decision by the sheriff to remove complained about well they were i think exclusively people that he had complained about i was in that part of the problem i mean didn't tend to show for originally give him the benefit of the doubt when he went to the sheriff and said i have these investigators working for me i'm having trouble with three of them and the sheriff looked at it and said well they've been complaining about you as well but i'm going to give you the benefit of the doubt but you're going to hire more investigators but if you continue to have these problems then i may have to re examine my refuted for example mr edwards compliant and he was the person who mr ray vaughn was bringing up the subordinate employees and saying that these subordinate to some of his subordinate employees were violating the law every one of those complaints were refuted during the trial for example when mr edwards brought up that he was having difficulties could not work with other agencies then we brought the police chief and from the city of mariana we brought folks and from other agencies to show that all of those claims every claim that had been made against him was wrong so when you take an employee who has been there for twenty years or so fifteen twenty years but the spotless record and then all of a sudden transfer him to a cold case position where he's responsible for one case rather than the gigantic responsibilities he had and his  essentially demote him four levels down and we have evidence to suggest and show that it was only the people who he had complained against or there one supervisor then doesn't that create a factual issue just to start with the last points that were made by counsel with regard to refuting the particular points that have been brought up about raymond and the issues that have been brought to the sheriff's attention like that's not the point that's not why the sheriff moved raven what is undisputed which was recognized by the district court was that there was turmoil it didn't matter who was right or who was wrong it was readily apparent to the sheriff that there had been turnover in the drug task force for years branch testify that was never refuted and that there was ongoing dissension in the drug task force he didn't have that problem with  he didn't have that problem and see id with virgil he had a localized problem in the drug task force with this ongoing dissension recap very briefly and it's apparent from the record there at the hair care airport headquarters for the drug task force he moves them two thousand and thirteen because he's got the squabbling sheriff wants to get more involved two thousand and thirteen there were four detectives he moves three out of the four including john allen who was the subject of the whistleblower complaint may or june of you know to thirteen doesn't move alan doesn't move any of the others and moves three out of the four and then they were pleasures and then he replaces them with people trades these people out two of them are complaining about similar issues moodswings managerial style being isolated in d t f and now it's at the same time he's got an issue with edwards now this is before there was any protected activity alleged you know with regard to whistleblower that's not till like may of two thousand and sixteen so he's got two captains that are squabbling on this and he's got two out of the three that were replaced that are now complaining about the captain of the drug task force what's he to do he moves right you've been because he had told him before hey if this doesn't work out then we're going to go in a different direction and he did he moved he moved raven out but he didn't demote him he didn't cut his pay he utilized to skills he was an investigator so he moves them into a position where he can be a captain and then uses investigative skills but he would not supervise anybody because that was the heart of the problem it wasn't who was right or wrong it was the dissension and the turmoil and that was undisputed let me ask you this i want to come join you to something that bothered me a little bit after to tell us why they did not and were not allowed to begin with carollo because i think roland really sets this up in terms of why it's different you know you've got a city manager that goes to local and state law enforcement about campaign finance violations clearly something that's not within the ordinary scope of duties and outside the workplace that's that's that context is important you know and that was an important factor in the court's decision and grow up this is completely different you've got john allen and let's begin with that john allen is according to raven compromising a search warrant that's being executed by the drug task force he's captain of the drug task force and so he's complaining about a member of the agency that's tipping off the suspects of a search warrant that's obviously something that's tied to his ordinary duties you would expect a captain of the drug task force to go to the sheriff and say john allen a member of this agency is tipping off suspects that's completely different it's within the workplace it's within the scope of his duties billy batten billy benton is a member of the agency there was an his brother who may have tipped off wilson and that is clearly again within the workplace related to his duties it's an ongoing investigation in which d t f is involved clearly distinguished you know from corolla right about m is that and she did not and he did not supervise this individual i mean if anybody within the agency is compromising one of his investigations he's got an i obligation to tell that to the sure it wouldn't matter it's if you want to think about whether or not he's speaking as a citizen or whether he's speaking as an employee when you look at the context of this it obviously falls on the employee side not on the citizen side he's not going to the mayor right he's not going to the county commission he's going to the sheriff about an internal matter it's work related if this is what if he's just another deputy sheriff and he goes and reports it i think it would be the same thing i think a deputy would have an obligation to tell the sheriff about criminal conduct or misconduct on the part of another  so there's no protection if you have a corrupt police department and you've got a deputy sheriff who's trying to do the right thing there's no whistleblower protection in that situation  whistleblower first amendment so far ok well there's an argument a little order where there's no argument for first amendment you know that it depends again whether it's a writing or whether it's verbal you know do they go to the sheriff and say sheriff bill talked to his brother about this investigation with regard to maurice wilson he goes to the sheriff and he tells the sheriff that's not protected that's not protected but if the sheriff reached out to him or there was an ongoing investigation or inquiry than he was requested to spade an inquiry and that would be protected ok so again context matters bradley fellows let me ask you  something i understand what you're saying but it seems like also wouldn't it also be a matter of public concern if you've got i'm not suggesting that's a situation where i don't in any way mean to suggest that this is a corrupt police department but if you have an hypothetical a corrupt police department and you've got a deputy who is trying to do the right thing what is he did go outside the agency if that was the case  know jeremy branch as a better example ok because i haven't got to him so let me let me talk about jeremy branch let's suppose raven goes not just to travis lawson who's like a coworker he's on the drug task force right larson and his deposition said that he and raven were good friends they often talked about issues relating to jackson county sheriff's office but let's say raven doesn't go to forever slawson he goes to the office of executive investigations or he goes to the county commission or he goes to the governor context matters i do not believe that if a deputy reports to the sheriff misconduct involving another member of the agency that's first amendment protected because it is within the ordinary duties you would expected a deputy to go to the head of the agency with regard to policy violations and potential criminal misconduct you know the first amendment doesn't protect everything that might be of interest to that of course but it does protect matters of public concern and a corrupt police department seems to me would be a matter of public concern then i realize that some things can fall into both categories and that's where it becomes a little difficult maybe you can help us with trying  and the king opinions that were decided by the court have given us factors that should be examined by the court in determining is that speech as an employee or as a speech as a citizen and a couple of the factors that are critically important it made public was it outside the workplace or inside the workplace and you know albus for example you know you've got the psychologists that are complaining about management you've  got with regard to king a public safety issue with regard to a firefighter who doesn't have a medical clearance she called a public safety but nonetheless the court said no this is an internal matter it's work related and i think that's the inquiry by the court given all the factors is it work related and i would submit to you that in every instance that we have here it was work related because of again within the workplace he goes to travis lawson who was like a coworker on the drug task force with whom he had confided other matters who was a good friend it's work related  i may just touch on the reorganization because that was also as you know part of the judgment as a matter of law and here's raven who has been moved to a position as a captain supervising nobody but he's being paid as a captain salary but things change as far as the sheriff is concerned and that's the budget that testimony is undisputed that his finance director linda can told him he's got a problem with the budget because they had asked for one hundred ninety one thousand dollars more than what they got now its position is that the was actually more money in salary from one year to the next well as callen explained that was because the year before the county commission given pay raises it didn't mean that they had more to work with as cowen testified operational expenses were down capital outlay was down from the year before they eliminated the contingency reserve branch testified she was worried about whether or not they were going to meet their budget for the following year both roberts and cowan testified that she related her concerns to him and as the district judge pointed out here's a captain who supervising nobody who is essentially a luxury sheriff doesn't need three captains he only needs to that really is undisputed testimony with regard to the budgetary issues and his reliance upon cowan's concerns with regard to the budget he reorganized he decided to put more people on the road and he basically cut a financial liability he cut a captain that he really was not in a position to afford the position of the appellant is that there were other opportunities for the sheriff that he could have moved  done something with edwards that he didn't have to do this he didn't have to spend money on a vehicle for example but as the district george judge noted it's not authority it's not the responsibility of a federal judge or a jury to second guess a sheriff a decision maker on those managerial decisions no reasonable jury could have found for the plaintiff with regard to these facts it was in fact the basis of his and i thought if you go through the the order on the judgment as a matter of law he explains clearly the move from drug task force to the cold case position and the reorganization and going to your point judge that there was no pretext because that was really never in doubt that it was never disputed so your point yes that the plaintiff never really disputed as i indicated at the beginning of my argument the dissension within the drug task force and also need based upon the budgetary issues to cut a captain that he really did not need to afford anymore and reorganize the agency so to your point yes if there are other questions from the court i'll be happy to address them thank you request that you would for an order but the summary judgment the evidence points overwhelmingly in favor of one party such that reasonable people could not arrive at a contrary verdict the question in this case before this court is whether there was evidence that would show and the question is whether there was another evidence from which a jury could reasonably have found in his favor and whether the evidence so overwhelmingly pointed in favor of one party and by we brought  witnesses to show that every claim that had been made against him was flawed and that scotty edwards the other he had been reporting wrongdoing about mr edwards and bugs that were under his supervision the that everything was instigated instigated by scotty edwards and the people that he did bring and that were new folks the smith folks there was one issue that they had been asked to prepare a report about and they did prepare a report about it but that doesn't mean that he has ongoing problems with them and he all of these folks it was all instigated by scotty edwards so was there another evidence to show that and to show that every claim that the sheriff had fully  claims would have found that not one allegation against scott against the rayburn was right on was true we had other people who came and they testified that this event didn't happen that event didn't happen kicking a trash can for example didn't happen i mean we john allen and whether it was when his within his job duties to report those i'm not arguing not one the ones that i brought up what i brought to the court's attention about mr fellows except that i did not brain john allen that one i think could arguably be have been within his job duties because mr allen had been under his supervision budget shortfalls and the justification that the sheriff gave we brought the actual budgets on to show that the categories where they were claiming that there was a budget shortfall was just plain falls and we brought that evidence before the jury to show that where they were claiming that the sour raise that was low from one year to the next year and that this is why it was justified that he would be removed from the captain position we brought the evidence and to show that that was false that was again a jury issue and that fell on the heels of mr ray vaughn having reported scotty edwards a year and a half at him being harassed by scotty edwards people issue because the us supreme court and this court have recognized that you learn about these events during the course of your employment and that just because it arises during work does not mean that you don't still continue to have first amendment