raines in the city of connecticut in this first amendment retaliation lawsuit we would ask this court in conducting to know in view of this matter deliberate completely removing the speech from the fact pattern and when that occurs we are left with this that with regard to the conduct that occurred in november of two thousand and eleven that was then discovered in two thousand and twelve and investigated mr steinbach when asked questions as a fire captain when asked questions by his fire chief lied to him on a number of occasions about his conduct with regard to council members with regard to his conduct with regard to his coworkers then when that speech was separately investigated by the police chief of the city of walk neta he continued the pattern of dishonesty dishonesty mr stein admits is not a trait that any firefighter should it should demonstrate and when asked questions he should answer honestly when he was desperate to tell him that the reason he was being disciplined because he lied to them when they were asked to getting it yes he was disciplined for lying that but he was  yes but the the problem with taking that approach is that what this case is a bailout is whether we have citizen we have speech that was made is a citizen and on a matter of public concern so what was said does matter and i don't think it can be taken out of context don't you have to and doesn't your opposing counsel have to address the issue of whether we have speech is a citizen  a matter of public concern to know whether they're seeing them protection for it yes that is the first element if the court were to take the elements in order as they are laid out and the parties in this case do not dispute what legal elements of apply to the case that is the first element however where the court is able to determine that element three plaintive has the burden of proving that the speech was the motivating factor for the adverse action it is our position that the plaintiff has failed or that the apple e has failed to meet that burden that mr steinbach has not brought forward evidence to prove which is his burden that the speech was the motivating factor because there is no question on this record that the speech was the motivating factor of the initiation of the investigation correct of the investigation yes but the investigation is not adverse action any employer is able to investigate the conduct of the employee in this particular instance counsel to council members approached mr raines and suggested that they had been spoken to by a firefighter and investigation of first mr raines asked the fire chief what's going on the fire chief didn't know and he followed up it is unknown at that time what actions or inactions if any are going to be discovered and to suggest that there is no ability to investigate in response to any allegation is not supported by any law public employee with a code the question is not whether you can or can't investigate the question is whether the investigation results in action that can be found to be retaliatory correct yes and the investigation revealed two things the investigation alternately in the end revealed that mr steinbach secretively approached three elected council member officials and discussed with them what fire apparatus he believed should be purchased when his job description specifically requires him to be present for captain meetings to participate in expressing his opinion on the management of the department which includes what the quip meant will be purchased with the delineated budget that is always set aside in the city for fire equipment purchases only fire captains are there at that time there were four or anybody higher than a fire captain lower than the fire chief now that he has a direct report to the chief those fire captains do they have different responsibilities within the department or it's just it's like four equal platoons or what i mean would have one of those what's the allocation does each captain have specific duties i guess trying to figure out what a fire captain does that's different from what a policeman does without reading me one of those charts you know i would just i would just point you know i would just point out to the court that the captain duties are specifically written in the s o g s which are these four captains all have the same job duties laid out in the s o g s they can also one of them at any point in time can be appointed to fill in for the chief if the chief is unavailable and so also they are managing all of those in rank underneath them in the paramilitary organization structure and they're also response wallace of legal under all of the captains or some of the people under one captain some of the people under the other captain what are their area shifts they are they are assigned in shifts they have a they have a captain that would oversee that would oversee a shift in your time so that for a particular period of time there's a captain who's in charge of everybody you can understand i'm asking yes  captains divided up that's all i'm asking it is divided up by the chief i think i understand your question who does it how important for example the chief assigns one of the captains to be the administrative captain to take care of administrative items one captain may be in charge of inspection while they're all charged with inspecting apparatus have specific subject matter differences with them yes how many full time firefighters are  there i don't know the answer to that in the department at this time at the time of the events in question so there are there is one chief for captains and a number small number large number of firefighters career and any the the population of wa paca citizens is ten thousand to give the court some understanding of what the size of the community is but a small community is a small community up seventy five north  seventy five and i apologize i don't know the numbers are higher so the first thing you need to decide is whether what he told the council members was a matter of public concern do you agree that it was a matter of public concern as to whether they should no because the while while the while law addresses that corruption and fraud and mismanagement can and is matters of public concern in this particular instance the individual was speaking about which piece of equipment should be purchased in disagreement with the chief and there was just one base that was a consideration i mean one truck of four hundred plus truck that the that was the truck that the chief recommended to the safety service director how he called the council members and told that him that somebody was embezzling money from that would be a matter of public  and he could call the council members if they wanted to of i would agree that i would agree that the chain of command still exists but the law is rather clear that when reporting acts of fraud such as investment that that individual would be protected for example by whistleblower protection and would be protected by the first amendment because the law encourages corruption to be brought forward so that the public dollars not squandered what i was looking at the evidence of harm and i'm struggling with understanding what harm your client would cause i came to the department looking at mr ryan's deposition he was specifically asked whether this activity itself posed any health or safety risk to anybody within the fire department he said no did it pose any health or safety risk to any of the citizens he said no so what is the city's interest that we would be weighing against ball's interest in speaking in paramilitary organizations the law is clear that while t and trust are paramount to the efficient operation of the paramilitary organization in this instance we have identified an individual that has been disloyal and he was he was dishonest on not just want to kasian but throughout this course on a number of occasions and that caused disruption in the department well doesn't harm our shoulder case make it really clear that the paramilitary or however you want to designate this it's their public safety employee and doesn't my shoulder say that it's not the purpose of our case law the rule of this circuit that public safety employers have a greater weight placed on their interest in order and discipline than other employers have been there institutional interests so it seems to me that our law would indicate that  that it's not enough to say this is a paramilitary organization you have to show some harm and so my question to you is where where does the record reflect particularly in the face of mr his denial where does the record reflect that there was home the record reflects that there was harm because this individual went on to continue to show a lack of respect for the chain of command and engaged in additional acts of misconduct and actually question about from the speech the harm from the speech is that he he continued to place his own desires and not the standard operating guidelines first and foremost which is what controls a paramilitary organization to the extent that he went on to then go rogue on an emergency fire call and these continued acts of of misconduct are demonstrated in the case law where you have individuals that engage in speech and then also engage in this conduct and it is alternately the court's finding that the misconduct is what causes the lawful terminations of the individual and there is law from the circuit and outside of the circuit that places a greater interest in upholding the efficient operation of paramilitary organizations thank you honor had proposed ms think we are was regarding the responsibilities of the different captains within the fire department and unfortunately i can't answer that question but what i can say is some  recommend the purchase of the fire engine were to veto that purchase additionally mr stein bow did not serve on the committee formed within the fire department to make decisions regarding the  purchase that no part of his job performance varies job duties in both speaking with kelso regarding the person's a fire engines did he know that this was something that the chief want to do from inside consultations because he's on the bowie had some concern about this that was related to allocation of resources within the within the agency apart from whether it's military or not he could have easily raised them then or he could have kept quiet about them and gone around his bosses back right i mean those are two options yes here and and i could see where pickering balance  would would fall in favor of going around behind his bosses back if the objection was something in the nature of fraud or something in the nature of corruption or something in the nature of waste in the sense of throwing things away that are valuable right but in a context of what's the wise thing for our agency to do is that any way to run her railroad for you to keep quiet to the person who's primarily responsible for asking for for instance budget items to whoever decides whether they get budget items not to tell that person and then to go behind his back and tell to tell the deciding people this is what you should do you should overrule my boss that i haven't even suggested as making the wrong decision this isn't that problematic to almost any agency i wouldn't disagree that it could be problematic if you were running an agency you wouldn't want people to do that would you i wouldn't want people to do it but if they had good reasons for do it it's not the way to do it as well understand i don't understand well i think that the question here is that there's different ways of doing things but i don't think that the fact that by going to count so as a taxpayer he capacity but those aren't magic words i mean he's he's challenging what his boss is doing on something that he could reasonably any reasonably say he could make that objection to his boss and not only not doing that but hiding the fact that he's doing that and going around it's back week of it's called backstabbing i mean it's organizations around the country where that happens usually when you backstab your your position is in danger when when you get  was testified to by mr raines that essentially there was no harm to the department or to the public this is not just seems obvious to me with the guy can't run his department because the key people the main people that he relies on are not giving him advice on what should be done but going to his boss and telling them to to overrule what he's asking for after after they brought it by him i mean wouldn't any boss say that interferes with how i run my organization whether it's paramilitary or not well i think bosses in the public sector or in the exit you ation bosses in the public sector anybody in any agency that was a public agency would have problems with that and then not just irritated problems structural problems with how to how can you run to run a run and agency that's supposed to be effective when you can't go to the people that are your budget people and say this is our our the budget proposal that i have and you have somebody who's one of your primary advisers not some i'm not talking about a principle and it's a teacher and he's got forty or four hundred teachers and one of the teachers goes to the press that's different but if the principal has three vice principals and one of the vice principals says i'm going to keep quiet and then i'm going to go to the school board around your back that why isn't that just sort of on its face problematic well i my opinion is that in looking at  where or what rights mr stein ball had i believe that there's just the deposition testimony from mr simon ball that the chief was going to make this decision regardless of what anybody had to say about it and and i understand that you know that doesn't mean we do the obligation is this don't you think you're not effective in persuading your superior but i think that the issue here is is ultimately whether or not mr steinberg did have that that duty under the chain of command policy to push it to to address the  part of a dive unit the department disbanded the dive unit there was a drowning death and westmoreland went before among among the the rank and file in the fire department i don't i believe that the discreet approach may have been the best approach here but we decided this are just a serving that's a matter of public concern that that the district court out that there were some issues of that but if this is not an issue of fact we can decide that first outright well it's a question of wall but in my pitch and based on the district court's opinion there are some questions of fact here that play into it i think some of those questions would that be what were those factual bases that it has to decide this i think it's i think some of those factual basis would be  when you look at for example is a four hundred seventy four thousand fire department dollars fire engine purchase is that is that a matter of public concern in the city  would well i think one of the issues with the with the pickering balance is a factual issue it is just the impact that that this would have on on the city of potential harm to the city i think that part of this comes down to the testimony of chief crites on whether or not any of this was part of mr signed those job responsibilities or herb to what extent  he could have meaningfully influenced this decision and i also think that the issue with the taxpayer whether he was speaking as a taxpayer as opposed to  overlapping i think it's kind of i think it comes after the i think it comes after the pickering issue and then finally there's ben and this might come into the public versus the private interest piece of it but there's the portrayal by the by the city that mr stein bob was trying to further some type of personal interest here is opposed to a public interest and i think that that's where the finder of fact would need to evaluate the testimony of the council members who actually spoke with mr stein ball because those council members two of the three had testified that he didn't make any mention of an aerial of this purchasing this other truck as opposed to the truck that was only purchased by the city and you have a problem pickering balance in favor of the government even if the matter was not personal  some way you could i mean in the paramilitary context you could have disagreement about which way to attack and so you go over you go around the commander to the to the commander and say we should go there are problems with the chain of command right you could do that in a nonmilitary context as well right some people just want to like in a in law enforcement you may want to you may want to focus on this area of crime in that area of crime well it therefore go around your boss yes  but i think that that goes toward to the issue of the chain of command in the city's chain of command policy because that policy states that employees are to use the chain of command upward down routine fire department business and during emergency situations and we don't consider this either an emergency situation or routine fire department business people just go around their bosses back to the to their bosses boss without repercussions unless there's a explicit policy which says don't do that in agencies throughout the government well i think that the city is claiming that this is a  that when you work directly for somebody as part of his advisory team and you disagree that you don't secretly go to his boss when he makes a proposal to that was one of the chief did have a chain of command policy and i'm sorry an open door policy and the only person that would be above the chief would be city council so if the chief has this open door policy that allows rank and file billy allows people to go secretly to the city i don't think that it affirmatively allows that but if it does run contra the structure of a of a typical paramilitary organization for the question thank you right thank you they please the court fourteen firefighters are underneath the captains and the chief in the city of la poc now i'm sorry didn't have it at the record it isn't a record the the it was one of those firefighters and might have been different i'm not understanding if instead of a fire captain that was one of those rank and file firefighters that went to city council this case would be different in terms of bickering analysis no the case the case well the case would be different in that you don't have the nature of the harm is is worse in this particular case because you have what is a top adviser of the captain going to city council instead of communicating upwardly with his chief for example had a captain observed in his duties of hearing from his firefighters that there was an operational issue with a piece of equipment and he wanted to  around the chief with that information and go to council to report it for whatever reason he's not fulfilling his direct duties to the chief to make him aware of important and crucial information and the selection of the piece of equipment in this case in order to have productive conversation up the chain of the firefighters talk to the captains the captains talk to the chief if the captains aren't giving that information to the chief the chief is without that information and that's an important part of the decision making process with the chief the chief testify that that the whistleblower don't know if you use the word disruptive he also used the word stabbing back but i don't recall the word disruptive in particular i'm struggling with jurisdiction there are a number of items discussed in the  appear to me to be disputes of material fact your opposing counsel listed some of them such as the chief crites role in the term in the terminations itself as a fact question how do we have jurisdiction of disputes of material fact at the appellate level first two elements of this analysis are according to law questions of law the opposing counsel stated that the district court found questions of fact but with regard to the first two elements and that's incorrect the district court held in favor of mr stein bought in the pickering balancing and out analysis and on the speech protect speech issue and so that leaves us that leaves us with the question of whether summary judgment was appropriate or not below and if the court below that there were disputes of material  then what we don't have a role in this this this level of appeal of those disputes to wait if there is a if there is a question of law and a material the court would be divested of jurisdiction if that issue were case dispositive it is our position that the third and fourth elements the third the plaintiffs having the burden the fourth the defendant having the burden w met with undisputed facts the court's opinion does not address what issues of fact existed if any and as the briefing sets forth we're of the opinion that no issues of fact that are material to the station to be made here exist and under the recently issued she hand case by the united states supreme court the law is not clearly defined it is not beyond debate and certainly the combined experience of these two public officials do not somehow equate as plaintiff argues to clearly established the law and so the the finding below the court's denial of summary judgment on the most that man cannot be before us is that not correct it is our position that that is properly before you because it is our position that there is no material question of fact with regard to any of the elements before the court the decisions made isn't there a lot to repeal the person claiming qualified immunity can raise with unless somebody else has a intertwined issue i assume yours arguing that that the menow claim is intertwined with the are you that your brief yes