rank of lieutenant in this am just a police department in march of two thousand the second question is with the appointments temporary or with a permanent the third major question is the approval of the mayor the controller and the human resources department required to finalize a civil service appointment in san francisco i've got three short answers as to the first one appellants were appointed to lieutenant second question the appointments were per minute third question the approval of the mayor the controller and the human resources department was not required as regards to the first questions were pellets appointed to the band of scores the police chief was not required to appoint anybody in rank order and the rule of three had been just as it had been disregarded for this particular eligible west so they were within the so yes they were within the band and almost all of the individuals above them on the band had been appointed it was at the end of the eligible list in the eligible list had been in existence for a number of years and soul even though they were ranked eighty five something like that there had been something like sixty five or seventy appointments from out west so they were within the band and they were reachable b any argument that they were not within the band and and i think the band they have been down to ninety five or one hundred or maybe even even more than that but a substantial number of appointments had already been made from that eligible list and that eligible list expired in june of two thousand so they were the last three individuals appointed from southwest the next eligible list was into effect the day that you the last person that matters to them for the the certification process established a ranking of number one two and number something that i don't know i don't happen to know off the top of my head but assume it was new list about two years or three years after the list that he was originally appointed expired so the appellant's were not on the new less but they were appointed legitimately from the bars off sergeant stripes is that right yes how are they told they were told by a phone call that that they were out they were being demoted they were not informing back to the first there came a point in time that the record is a copy of a personnel order the police department proceeds from any kind of major personnel transaction by issuing a personnel order and their names appear on personal orders number six and number seven personal order number seven i think it's page sixty three or sixty four in the record their names appear as being promoted to l w l p q sixteen lieutenant and that's how they were informed afterward that had been promoted and the l w l p promotion appeared in the order they were never demoted and they didn't get these are the only three individuals over a long period of time that were ever demoted now i think it means that something like i guess what happened in this case is that the police somehow somehow waited for the approval of the requisition which we're arguing is not necessary the mayor or the controller do not have a role in making appointments and they don't have a role in in and having to approve a requisition which is one of the major issues in this case and so that l w well pete promotion apparently must mean that the police chief issues a requisition it somehow doesn't get processed and so they don't remove the old w l p until the requisition is used in this process there is another form of l the lieutenant one or the captain and that's how you get paid and you and you do that at the same district station if you're promoted as an l w o p promoted you get moved to a different just a different district station and you're not required to fill out a green card in order to get paid because you've been promoted and that's that's a distinction between those those two kinds of assignments the city argued  promotions were the green card promotions that's what they've argued but if you look at the section sixteen of the memorandum of understanding it very clearly says that an individual can get assigned to the position of a higher rank and get paid like work like pay basis but in order to do that they have to follow the green card and it's only a temporary situation it's not something where you're moved to a different district station and you're given a uniform and you congratulated and you have to take a medical test and you're in all respects treated like a permanent lieutenant when arbitration this matter did go to arbitration unfortunately the arbitrator ruled no he did not rule on the on the charter issues that we raised but we had asked him to to to make a decision on whether or not charter section eight point three to nine apply and he he  declined to do that so there was no ruling in that arbitration decision on on that issue what was the position of the union that it was not a union grievance the union we think the police officers association refused to represent  says after that period of time the human resources department shall process the a point right now it looks like they may not have done that in this case but and so the city has argued that the that the requisitions issued by the police chief were never approved so therefore that invalidated the appointment but that's that's not the civil service scheme and if you take a look at the cases that we when being demoted and there's a there's a there's some part of the record that we included that that has a probationary lieutenant who was demoted for cost section eight point three four three of the charter makes no distinction between a probationary employee and a non probationary employee in terms of due process in order for and an employee who was not an entry level employee to be disciplined or to be demoted or  to be deprived of their property you have to follow the charter section charter section eight point three four three and as a matter of fact there is no other l d l b l p who was ever demoted without due process so we think there's a practice in the police the fact that that it with that it was three months makes no difference whatsoever the city and you know the city didn't even give them a notice that they were being released from probation so that's just a kind of an argument was made later on but if you look at the practice of the department they've always afforded these kinds of employees due process you want to save about five minutes yes you have as a foreigner thank you for your argument there from the city and county at this time raised the very beginning that there are four elements for an appointment i think and position then eligible list requisition for appointment by the appointing officer and an actual appointment by the chief and he says all of those were present well we know actually none of them were present and in fact the record at page ninety three ninety nine one of the appellant's concedes that that he actually had to call that somebody over at the hall of justice to find out where are these requisitions and she whispered to him on the phone you know if you can do anything to get those going that would be a good idea so these people know there weren't any requisitions are very well aware of the fact that the civil service rules and the charter provide a very specific way to become an permanent employee and put in a permanent rank and they didn't have that the second thing i wanted to point out was i believe your honor i had asked whether waving their right to anything for in exchange for one dollar leaving their right to compensatory damages so that's not really grieved here but i would submit to the court that that whatever the retirement backdating issue is to counsel raises would be enco that there could be proof that a different time perhaps but i just wanted to respond to that issue  rank you are entitled to some due process but also under the civil service rules and that the applicable rule is in the record at page ten seventy two  unless it's for misconduct there isn't any process and so he's simply incorrect that's not what the rule says and the rules again are in the record so  because if you if there's an allegation of any kind of misconduct or wrongdoing and you have a basically a name clearing hearing there's a liberty interest there but there is no property interest and that's what this case is about and there's one thing that's really clear from the record not is that in all the pieces of paper that you all had to wade through and i had to carry over here there are no documents appointing these gentleman to these positions lieutenant so the question is can the court find that they are de facto permanent employees permanently tenets now the city is not taking a position and never has that they don't have a property right to their rank of sergeant and now  march fifteenth two thousand from julie gonzales to director recruitment and examination the police department to the police to playgroups that's the record at page sixty five now that is the documents that civically indicates the employee groups specifically quote it is anticipated that in all likelihood these will not result in permanent appointments from the existing eligible list and quote now why did that document come out we submit and i think it's supported by the record the reason that that document came out as a direction of shoot flat out is because the department was in a unique moment in time they had been under a consent decree for almost twenty years for the promotions and this was going to be the first time in almost that the department was going to be making promotional appointments without the direction of the court and so to prepare the employee groups and all of their members of which their parents are three this document decided to assign that requisition to the individuals but that gets to another issue and that is does the chief have discretion to pick who he wants and that's something the judge lester asked at the beginning here was what is the what was what could the chief do what were the rules and there is not a dispute that these folks were in the band they were eligible there's no we don't to signal ever has said that they weren't good off cers that they were ineligible and anyway they just like all of these other people in the band could have been selected and she was allowed to have full discretion to pick anyone he wanted within the band he didn't end up picking those three he picked three other people from that lest you temporarily put these guys into this position and they did perform the job of lieutenant for ninety days three months and then they returned to their regular assignments so so the question is if you look at ross it's sort of steps down where do you find a property right well the constitution doesn't give you a property right the property rights are found from things like state statutes ordinances and so forth so you know that gets us to the city charter and civil service rules and so forth now counsel has argued we think just ingenuously and we think that the district court agreed or unreasonably at least that somehow the way the chargers phrased it gives deporting officer the right to just make requisitions and just obligate public money and of course that's not true you know not none of that reasonable in this statute cases that we've cited she had been there for five continuous years she'd gone through six or seven performance evaluations evaluating the exact same criteria as all the quote regular and quote employees in the county of riverside who had occupied that same rank position two roth in that it's a short even shorter term and ross the gentleman who's the plaintiff had a one year contract he worked a full year in that particular position so we would say there simply is no property right to gives rise to any sort of d released them anyway so they still did not have any in title meant and that it's throughout the city that is one of the you know the core issues and one of the core section eight point three two nine without waiting and subject to the foregoing general and specific objections defendant admits request for admissions numbered to thirty four number two thirty five was for plaintiff timothy dempsey number two thirty six was for michael staffs go so in discovery the city admittedly the chief allow made requisitions for these three positions and there are documents that are throughout this record that show that they were appointed were there in the record or pardon me where is that in the record that you just referred to in the re that's their argument that you have to complete those documents but the completion of documents it's not a requirement in the charter their charter says that in order to make an appointment the appointing officer shall make a this document signed by the chief yes or the document is signed by the chief it's an official sandwiches go police department personnel order transfer them to different district stations they weren't paid as temporary assignments it was a promotion if  our our our brief tries to detail you know it page after page after page where the deputy chief john port tony testified under oath at the arbitration that he was with chief while he called it a promotion he called it a promotion from the eligible list to those vacant positions and throughout the discovery the city editor that the positions were vacant and that chief while fill these positions with the appellants and they served in those position for three months they acquired permanent status through just charter section eight point three four three which requires cause for removal under the peace officer bill of rights if you're demoted that's a punitive action in the state four three which as i said before contains the magic words cause and that that gave them the property rights they did not receive any kind of due process they were dismissed with a phone call and there's other issues that i didn't address but they're all addressed in the breeze i if i can make one short argument about the end question case which is an equal protection case that the ninth circuit decided in february of two thousand and seven and if this court finds