for your seat my name is robert me an attorney for the appellate county westchester county comes to this court to appeal the findings of the court below in two respects  that the county has complied with paragraph thirty three three c of the agreement and that the court improperly excluded evidence of that compliance and to that of compliance i didn't see any in the  the exclusion of the evidence was the their various activities that the county undertook beginning at the latest two thousand and eleven the activities of norman drummond who went out and went to many events and public fora and training sessions we hired consultants our other employee you went out was mark fang who promoted diversity to various groups  gave speeches has this alleged campaign been successful in changing public opinion in westchester county but that's very difficult to determine your honor but there's no doubt that the county has throughout these myriad of activities including the contract simply the activities of both us norman drummond park find others even the county executive appear that housing expos went to ribbon cuttings it was always promoting fair an affordable housing executive that refused to do what his for us predecessor had agreed to set the same county executive would take an executive had since two thousand and ten year on a yes and and the statements which the court below criticize were had nothing to do with thirty three c they relate to another dispute a part of a policy dispute which this court is aware of because we've been here before on that issue of the of the ai and the zoning issues and whether or not zoning codes should be changed that is a public policy issue which the county executive expressed his opinion has nothing to do with he's always promoted fair and affordable housing said that diversity  is something that the county promotes and in fact the county is one of the most diverse counties in state in new york he says that constantly he also says constantly diverse but second gate is nuts well i wouldn't say that and that the government in fact is looking to restrict what they say well the remedy here is designed to punish or to correct the statements of the county executive but that gets into the substance of statements on the very issue of a public debate on a public policy the public policy is whether or not to change zoning codes to promote affordable housing that that is not in the would you describe for me and maybe you can maybe hand of the activities that you would characterize as part of a campaign that were specific they required by paragraph thirty three things that were not housing but all the activities that the engage in now was specific to a large agreed specifically geared to a seven hundred fifty years is it your contention that the county could have simply continued whatever activities that it undertaken part of the decree in order to fully satisfy paragraph thirty three c i don't think that that disqualifies that because that kind of case so what what in addition to  housing actually counsel to to have a public forms public events and promoting diversity we also did in two thousand and eleven the poster campaign poster initiative which yes of focus group didn't like the ones that were created by the county counties staff create those houses they didn't like them but nevertheless the county went forward to post a campaign and made sure those posters they used ones from and and monitor actually viewed the posters and then we had a focus group look at the posters and they didn't like them so then we were in two thousand and twelve we switched to the posters and so that was part of a campaign a series of things that the county  called zoning reform has nothing in the stipulation to say that zoning reform is a part of the stipulation we look at the terms a stipulation if you if you would you agree that if the statements made by a serino could fairly fifty s he was acting to what it was saying what the market was saying that in fact is this study out there that you have to have ten thousand units and monitor actually said that in letters to the understand of my question is a little different and just go with me on the hypothetical it's me if you can't you can't and that's also telling would you agree with me that if mr astor reno's statements could fairly be viewed as trying to undermine the consent decree that was entered into two thousand lines as general the undermine the public's confidence in the consent decree that that might be a violation no i wouldn't think that would be oh yes if it related to a specific term of the settlement and not general undermining of the consent decree because if there is no perper not asking you or at least as i'm listening to judge lawyers question whether you think his statements did do that the question was if they could be perceived as doing that that is accept that they are somebody could look listen to them read them and say he's undermining the degree would you say that that's a problem if it was in the mind some specific term of the what has to be specific term by term not the degree generally well that you create general of the settlement let's say the settlement generally people could disagree whether or not the county should have entered it yes but the decree required certain affirmative actions right that's right and if what he's doing hypothetically is undermining the execution of those affirmative actions is that a violation of the decree in your view if the public official is undermining the consent decree entered by the court that the county agreed to and is perceived as doing that is that a violation of the decree that that is a slope that  talk about consent decrees and purpose of the consent decree and institutional reform litigation is very narrowly determined because it is an area where the supreme court has said this is an area of caution especially when you're talking about public debate and speech i don't think there's any case where our that's a settlement you mention the slope let's go down the stairs if mistrusts to reno i'm just trying to figure out where where the line is that you are trying to pass or asking us to draw this just reno had said i do not believe in this consent decree and i don't support it would that be a problem for you well there's two different things first of all he could argue that he did or you certainly before the election that it was not a wise thing for the counties settle on those terms after those very the after he was elected and then he said i didn't agree with the sentiment but going forward it's my obligation and as a matter of law that we respect the rule of law and we're going to enforce this consent decree and we were going to execute a consent decree as written that's exactly what he said say in public meetings that hyde wants to dismantle local zoning he did and that was based upon what statements in public and to the statements of hard saying wait a minute you have to consider the parents in case in ten thousand units and tie this into your ai because and so the can't exactly say wait a minute that's not what the consent decree and the monitor said oh no wait a minute we have to look at parents and we have to tie in this ten thousand unit number he objected he said that's not in the settlement the things that when he spoke publicly he had a chart showing that this is what the settlement says and this is what hud say he was defending the settlement the terms of the settlements and this is what it says so he was reacting to hollywood and and they were misconstru more i'm trying to figure out what you understand by the term campaign and i take it that you would you agree it's a public campaign that was recorded by thirty political campaign in our numbers in this case was it your position that the campaign has got to be a campaign geared towards the public the public and others i think that about the public the public is included in that the public education is part of it but it's also educating promoting the diversity or the acceptance by various communities of the distribution of for the housing you go to new selfishness they're the ones who make decisions so that was all part of it and we also had public forms yes to promote because public comes out and speaks at these forums at public hearings so it was a a many faceted attempt to broaden the sport for fair housing but your time has expired you have two minutes for a battle we'll hear from the government please the court my name is david kennedy i'm an assistant united states attorney in the southern district of new york and i represent the united states in this case the district court correctly found that the county through its executive breached paragraph thirty three c of the consent decree in this case the county was required to and i quote create and fund campaigns to broaden support for fair housing and promote the fair and equitable distribution of affordable housing in all communities instead the county embarked on a campaign that got terrible reviews and then abandoned it and then the county executive repeatedly made misrepresentations about the county's obligation under the consent in order to undermine these goals and also can i interrupt and ask you about the relief that that's just a court public when fully informed of all the facts and circumstances will reach the correct judgment and i think the release of the videotape shows that because you know having looked at it any time master you know is pressed on the substance of his misrepresentation abolish local zoning that highrises can be built on any block that hundreds demanding ten thousand units at a cost of one billion dollars you can see him grasping and you can see him failing to provide a coherent response to the questions and i think that's a good tonic to the sorts of statements that mr astronaut has put out there that when actually put under oath and subject to the truth finding process of a deposition that mr astor you know was unable to support his statements so that i think is  remedy was so appropriate here in essence the that the government requested among the remedies that we requested in essence the remedy for speech is more speech and that's what the district court did here and so just to move on  the substance of the violation of paragraph thirty three c mr meehan has already alluded to the fact that a poster campaign was started by the county now the county knows how to do public information campaigns both us and the district court pointed out they have  campaigns called westchester smart about improving technology in the county and also safer communities following the tragic events in newtown and what could be what could the county executive and others on behalf of the county have done ghoul's just well that would've been problematic exaggerated the value you would be so it's not false statements that's the line well in this case it's all statements that cause a breach of the contract in essence this is a contract case and if  were under an obligation for example the state of new york were giving him money to promote tourism in westchester which part of new york say and instead asked you know went around saying actually westchester is not all that interesting go to jersey instead those statements would be evidence of the breach those statements would be evidence that he's not fully committed to furthering the goals of the campaign that he was i was no one would see them as no one would say that your honor having grown up in westminster county but you know to make the flipside of question here is when you're making false statements to the public and false misrepresentations to the public there has to be some corrective to that and just as in the course of litigation you have parties making statements that are inaccurate and they're making arguments that are inaccurate you subject them to depositions and then when the witness gets on the stand and testify as to something that's not true you impeach them with the deposition and that's sort of the same function that the release of the videotape does here now mr meehan has talked a lot about all of the activities that ms drummond and other individuals were doing that he feels indicate and intend to comply with paragraph thirty three c and they really don't even if you look at the county's own brief and their definition of campaign as an organized course of action to arouse public opinion these activities don't do that now when there are a few that were targeting public audiences yes there were a few that were better than others things measurement of whether the public opinion was changed they're actually doing that right now in an aspect of judge coats ruling that the county did not challenge the county was ordered to hire a consultant and that consult was named thom inventor they put in a proposal for a survey and a budget for that survey and that we're going back and forth on that in the district court now but the county did report to the district court in a letter filed i believe on december second just last week that the county sorry that thompson inventor has done a survey and has gotten at least pollution or results from the survey we don't have that yet but as a result of doing that survey thompson vendors are going to be crafting the public relation campaign that the county should be doing all along the promise it's twenty seventeen and this settlement was executed in two thousand and nine just to go back on the drummond point if you look at everything in her declaration again there are things like an affordable housing exposition where there is a general message to the public but again that was stuff that they were doing ahead of time the first exit from paid seven hundred forty of the seven hundred sixty nine of the joint appendix or housing commission meetings with a dozen to two dozen officials well again this was something they were doing already and secondly to the extent that there's any public message communicated by having a meeting with two dozen local officials the public message is purely incidental that i'm paid seven hundred eighty seven there's a land use training institute seminar affordable housing is one of the twelve issues then if you keep going on page eighteen zero four drummond participated in the westchester twenty twenty five round table that roundtable mention was you would it's a good question i think it's hard to say think i think we probably would have felt that all of these meetings were no no i think were all these meetings where any sort of message to the public was purely incidental  i think we still would have said that that would have failed to equal public relations the campaign the the amount of evidence that certainly pushes this toward our side of the table are the misstatements that the c executive made in essence it's like finding his private emails where he says something like i have no intention of promoting this i have every intention of undermining it because that's really what he did now to get to some of those statements because mr meehan has said that you know these are public policy discussions about a zoning issue that resulted in litigation that this is now my my seventh time here so i think we've seen a lot of litigation already on these issues and the court will recall at no point during those cases was there any argument about ten thousand units at a cost of one billion dollars that didn't come up in that other litigation at all well does that come from ten thousand seven hundred something like that well seven hundred fifty comes from the consent decree  it's all that has ever asked and there's a letter in the joint appendix from the deputy secretary of hud that says page six eighty three that has never said you should build ten thousand they have a specific number ten thousand seven hundred sixty eight where did that come from that number comes from a study that was done by rutgers several years ago talking about the general need for affordable housing in the county and what the monitor has said  municipalities is you can use that as a data point it's not an obligation under the consent decree it's a data point that is something you should consider for example and this is purely hypothetical if that housing allocation study said housing something like ten percent really needs to be the village of hastings on hudson well then that's a fair thing to say although it's not binding that ten percent of the seven fifty units should be in hastings on hudson it's all the monitor ever did and when asked you know started making these false statements both hud and the monitor it's a page sixty three for hide and page two two hundred for the monitor put out letter saying we have never asked anybody to fill ten thousand is problem was had made correct statements all along he would have been much less likely to support the sap needed and i think high rises on it would be less likely to make it i'm sorry what about the high rises was demanding highrise know that's also an entirely fictitious and you know the reason you know not to ascribe any motives to the fellow but we're now getting into whatever motives the county executive may be saying they're going to put high rises you know on your block is a little loaded and whether it's something that county executive knows he's playing with or not it's very dangerous thing to suggest and i think your honour's opinion and the hanny case talked about the use of that language and whether it's intentional or not it is a very loaded language and maybe intend to trial people up so that they oppose the settlement which is exactly the question i started thank you thank you counsel this to me you reserve two minutes for a battle counsel for the government has used the term talking about is a question it's a false you may disagree public policy may be not desirable to say the government was demanding ten thousand seven hundred sixty eight  did well and they had to i didn't demand it and what's not false about that was an officer of the court what's not false about that because it's part of a debate of whether nine sewing code should be changed but they never demanded and they never said you had to well they've used to me those who states are false as you're characterizing they brought it up they were the ones who really is the issue they they said in letters to the county that this was it was a need that we should have to pay attention to this number and then the miners said it's actually part of the settlement he said it's an obligation under the summit so this was the reaction to those two things and the  he acknowledged that he had nothing no facts to back up the statement because that is that right there right that he never said he had no facts to back up the statement they asked him well this is the settlement says this and he said yes the settlement says that seven hundred fifty years there's a settlement say ten thousand no the settlement does not say ten thousand because it didn't and that was his argument so it's his argument is not false it's an argument on public policy whether or not it's only how we should you change the reason earlier said that he so i thought he had said that the settlement required ten thousand u s he said hud was saying that he didn't say that he was saying no that's not true he said hart is now saying that requires so he's countering what they were saying so and the public policy debate is whether or not zoning call should be changed to accommodate for housing in those kind of numbers that's that was part of the debate whether or not that should be should be done i would never required highrise houses today i rise buildings not specifically not literally they didn't what his point was if saying what would you look eliminate these rules you can does things that you can anticipate or expect that it was a debate why couldn't one hyde pierce traction be replaced with another one  restriction might be two stories might be ten stories but that's the debate and that's of the band at a local level and what whether or not the zoning codes should be changed and there's no issue here about violation of federal law they're out there stays yes the if there was no stay on the ground has been affected but the problem with the remedy is that it thrust the court into a debate on public policy which from several reasons is undesirable first are you making if you're not making a first mimic claim and it was saying that on the on the balance of finding a breach based on statements of a county executive of a consent decree implicates the first amendment in the paper when you say paul cause as as mr kennedy just said he was he wants to control what being said he said what do you say that when he said the wall will use the depositions to prove his statements are false well why not and more speech we all want more speech so what's wrong with a county executive speech that's more speech as the county executive at least is this is what we're arguing about here the county executive is found to have been undermining a consent an the county the highest ranking official arguably or at least a mouthpiece for the county public official has been found to undermine the consent decree that the county agreed to enter into in order to solve the problem is not undermining saying one thing all right we've got this consent decree and this is my characterization i know you won't admit to it i'm not asking you to but we don't want to really follow that we're going to do what we can to make sure we don't have to if he said that that would be one thing but he didn't say that what all he said was this gets back to our discussion doesn't that we were having earlier and whether if he is perceived to be saying something like that whether that's all he was saying is that the promotion of or changing zoning codes and the the hud wanting to change only codes and through incorporation through the a i have ten thousand more units was not