it's really clever if you get your argument you want to be able to respond but i don't think you you don't have i apologize you can see what was going on so once you start all over again great thank you we're here today because the district court committed reversible error by failing to opine properly apply fundamental points of law and i'm going to begin with a constitutional issue and in my perspective the district court sidestepped the general rule of law that the constitution prohibits patronage dismissal and what i mean by that is this the district court didn't step back and analyze the fundamentals of this constitutional area of the law and that is was the genesis from patronage dismissal and if you review the case law the teacher's dismissal comes from the concept that there are some employees in the public sector to hold positions that can impair a public actor's political agenda and that goes back to the mcleod decision with the four categories and that's an extension of that idea in category two o policy i don't understand how you can start out by saying the disc the district court disregarded that even though from page five on to however many it is that's exactly what the district judge is talking about in this decision it goes by go through the cloud factors i understand you may disagree but certainly on extensive consideration of the constitutional question here what i mean what i mean by that your honor is that the district court did not step back and actually analyze the genesis and the reason for the exception that's what i mean and if i can go further and kind of tie that what i mean by that is under the cloud category to that position that stands in a in a situation where they've been delegated a substantial amount of political policymaking authority that type of position can be subject to political patients dismissal what the district court did by is misconstrued this area of the law and held essential of that policy making employer policy making as a general sense is sufficient to him to allow for patients to special dismissal and that's just not the case under justice place of the justice first played county it's clear what distinguishes that if you have a elected county prosecutor or an elected attorney general those are pretty significant positions lot of confidential stuff that goes through them that whether the person was quote merely a secretary but sectors are kind of a traffic  for what gets to the prosecutor of the agency or if the person was the office legal manager either one of course i would have said the a g or the prosecutor gets to bring in their own person it's they they have to all the critical information in the office and how could you not say you get to bring in someone you trust for that position you made it just seems really odd to me that a political opponents secretary or office  manager could be that traffic cop the rep the record reflects the record flux that the office manager is not the equivalent of a confidential secretary to the press i that's why i said either i said i don't care which way you look at this as a secretary or a legal office legal manager either one i would have said boy of course you get to have your own and you can have the prior person potentially from the opposite political party forced upon you for your for a your ten prosecutor a g that would just stunned me this position does i think you're referring to really the category three controlling lines of communication with the prosecuting attorney and that line of case law reflects that a position that channels public communication with the office holder or the office holders communications with the public's electorate that position is subject to political patience dismissal the legal office manager does not control those communications many other employees control those communications and moreover the chief assistant prosecuting attorney has communications with the commission as the outside as representative of the prosecutor prosecutor's office is not the legal office manager so you have to do is stand back and look at the actual job duties of the legal office manager and they simply do not rise to that level they the legal office me ask you the question this way we have a lot of cases that have dealt with various positions particularly under this category two and the cases that  d the position does fall within category to include chief deputy county clerk business manager administrative officer purchasing agent chief financial officer office manager all those some like they're fairly close to what this position was they are completely in opposite every single one of those out just enough completely and yes really and for the fundamental reason that all of those positions hold the category one power of the delegating official f the referee case i think it was the mumford decision there actually let me just make it clear that what i was citing you two are all category two positions in that category one right you become a category two position because you're delegated the category one officials category  power and a prosecuting attorney there category one power is criminal prosecution as a matter of michigan law that powers been delegated to the cheap assistant prosecutor and the other prosecuting attorneys the legal office manager is unequivocal of the record holds no prosecutorial power whatsoever going further the legal office manager doesn't supervise the prosecuting attorneys she supervises clerical staff that's it and then the legal office manager does not supervise the clerk's desk daily work activities prosecuting attorneys assignment work to those of those other clerical staff the legal office managers main role is there to ensure people are on time they're following the rules they're doing what they should be doing that there's equipment there for them to do the job the legal ironing firing already hiring and firing authority again that is circumscribed the legal office manager there is such power not not full hiring and firing authority no how about administering the budget the respond to judge sutton and then the budget i'll take next hiring firing she has no power whatsoever with the prosecuting attorneys going further hiring authority over the clerical staff you can't take politics into that consideration those are not policy making employees you're simply acting as a supervisor in that capacity clerical staff includes secretaries i believe so the record doesn't reflect that there is a quote unquote confidential secretary to the prosecuting attorney in this situation but the odds are high there is a part of an office where there isn't and that position may be subject to a category three a confidential employee that specific position why wouldn't it be significant the person who has authority over that confidential secretary because that person is not impacting the prosecutor's political agenda that person is acting as a supervisor making any decisions that a supervisor would the legal office manager why are they mutually exclusive completely missing that argument because the police office managers political agenda cannot be used to influence and impair the through collective bargaining if you step back and really look at the legal office manager what is critical here is a legal office manager is is actually less of an agent of the prosecutor then of the count all the policies that she isn't forcing our county policies the prosecuting attorney's office is is similar to a department in an overall company an overall organization legal office manager works with county h r and handling h r related duties the h our county h handles the h r related duties that where there's some room for discretion room for judge making but going back to the hiring aspect she only has a small subset of that she interviews some initial candidates for clerical positions that's what the record floods but also the chief assistant prosecutor is there interviewing employees as well there is something of the heard that goes on but the ultimate decision is made by prosecuting attorney there is at least a question of fact to the amount of discretion and power that the legal office manager actually has in the hiring role that prevents summary judgment on that point with the budget i think the budget is even more clear qualified immunity if you're right on the first amendment part of qualified immunity applied if the cloud prevents broad discretion a discretionary policy making authority of political nature this position is a supervisor and that is that if this position were truly re crafted such that it were a competent and closely related to the prosecutor like gears from category two category three but aren't you just simply reading out the language or other confidential employees who control the lines of communication to category one positions category two positions are confidential advisors isn't that judge you guys question right there  i didn't take it like that but i'm not saying that what i'm saying is they are two separate things and the legal office manager certainly does not make political policy what i'm saying is if the legal up is any question about this right hand office manager of person being the one that controls the lines of communication absolutely because the lines of communication are controlled by many other individuals and also the chief assistant prosecuting attorney because one of the key you know i kind of thought that prosecuting attorneys were prosecuting and this person is back minding the store during the day both the prosecuting attorney and the chief assistant prosecuting attorney spend the majority their time in the office they are not prosecuting cases that's in the deposition transcript they're managing the office up there you're suggesting that they act as the gatekeepers to the prosecutors just need to make sense there is no gatekeeper here you have situations where the counties contacting the prosecutor directly the public's contacting the prosecutor directly this is not a situation where sitting in the corner like a potted palm during the is not the person that somebody has to come to to secure audience with a prosecuting attorney that's not the way the situation works if she were she would control the lines of communication she does not i want to quickly address your the budget issue ninety percent of the budget is set by the county salaries wages fringe benefits also by the county the county determines the number of classifications that will be filled in the prosecutor's office it's over ninety percent of the overall financial aspect of the of the operations that the remainder of the  both of you there was a grievance filed in this case right that's correct both of you agreed to hold agreements in abeyance during the pendency of this case the union did i i wasn't involved in that that's true how have you how how have you satisfied your exhaustion requirements the grievance procedure only applies to grievances that arise under the contract in this matter i asked you to assume that the a applies to this position and of this employee i am your honor what you're saying that even then she doesn't have to file the grievances and have to follow the grievance procedures under the collective bargaining agreement this type of contractual aspect of this case and that's that's different than the first amendment violation and i was were five thought you were referring to the first amendment violation itself well i wasn't really distinguishing one from the other so i look at those there for you to do so in your answer i look at those two distinguish rights but how does this work then if you lose the first amendment case for the sake of argument don't you still want to argue alternatively which you can't be fired for cause absolutely doesn't that have to have now and doesn't that have curlew on behalf of the defendants apple use the really sounds like that was saying all the ink that's been spilled here that we really don't have a contract claim before us you both agree it's got to be exhausted right certainly you argue that well i would agree that if there could in fact have been a contract initially that would have covered this if in fact the m o u is part of the contract if it exists at all if it can bind mccolgan those the successor and we argue that it can't but if we were to assume then certainly there needs to be exhaustion if it is a valid contract and pleasurable to mccolgan the answer is yes we're only talking here then about the first no i had no intention of relenting on the contract claim i think we briefed it very strongly and i know you did and i'm trying to figure out how we even get to it if you have to exhaust the the government side of it the public side of it can get out of it because there's a new official i mean that's really strange to me so under your theory let's just say it's not an election but you know you have a c b a it's a three or without an ammo you who cares and the prosecutor dies in office and you get a new prosecutor that new prosecutor can say what you're saying all these employees are do not get the benefits of the c d a well that's our position with regard to this particular office because of the way the office is defined i mean this isn't a secretary is this isn't this isn't the janitor the list is the office of my death in office you have a new governor whomever appoints this new prosecutor in day one they have to admit go shoot a new c b s and there's no one's protected with regard to the legal office manager position and people of that stature yes i did want to make a point as the i believe having to accept the reply without being able the written reply there's an argument made in there of the public employment relations act argument and that maybe some of what you're touching on that was argued in the plaintiff's motion their own motion for partial summary disposition in the district court we responded our response is record document forty seven when they filed their principal brief on appeal that argument was missing and i assume that they had abandoned that however it resurrected itself in the reply i think as this panel knows you can't make an initial argument in a reply brief that you didn't do is open so how many how far does the c v a that you don't think bind your client go into your client's ten years for a year uses that as we were to apply discipline to her that would be just cause in the disciplinary scheme it doesn't say that we're foreclosing your ability to simply discharge her in the context of your statutory authority to do so that's not what it says in michigan you can do the smaller but not the greater well because it wasn't a display or thing they didn't say we're we're getting rid of you because you've done something wrong we're i'm just charging you because i want my own office space a plan is going to be we're going to fine you for each day you shop on the job after we think there's one case particularly noteworthy given some of the discussion that was had on the political dismissal is the is judge ludington site seward's versus loudoun county and that explains that we don't want to get overly caught up in the categories per se bowers argument is we've got these categories they're very rigid this is what is the suit the words versus loudon county uses their guides the position doesn't have to be shoehorned into one of those to fall within the parameters but i think two and three apply because two talks about delegated discretionary authority well whatever bower may have done lopez has delegated discretionary authority particularly over budgetary items in the office category three applies because that deals with people who deal with confidential communications confidences of the elected office holders and certainly the description we have from lopez whatever power used to do what we have from lopez is that's what i'm doing i interview the people that come to this office and then i talk a talking first amendment now and i'm talking the first amount i did jump to forgive me but i'm still struggling with what's going on in the contract claim and be really grateful you think it's that judgment he was trying to clarify and tell me if this helps ok verify for you judge mckeague it may be me it's another way to think about exhaustion and you've got to go through the grievance process first is all of your arguments about what am i use ammo use can do what they can't do recall those legal issues but it's not unusual in the grievance process to have those issues resolved along with any factual issues and you still get federal court reviewed out later on so why isn't another way of putting judge mckee's question to both of you listen we don't know how this works but that's part of what the grievance process is about we'll get some information from some experts they'll get a decision that says here's what this means given this interpretation about what the law is here's factually what happened in the here's you can or can't be discharged and once that's done if someone's dissatisfied they go to federal court but will then have the benefit of that input well that would be true and the bottom line though is that it's just a really quick answer is that ok with you does not make some sense it will it does make sense we would rather not have to deal with that obviously which is why we make the argument we do but the bottom line he wins her contract argument then you never get to the first moment i would be true in the bottom not it's almost you know for verse way in that about until just now it's almost like a pullman  yes but the bottom line being though that for purposes here today the worst we get is sent back for the exhaust to the exhaust the remedies under the contract we don't this case doesn't survive it gets sent back as george washington said it should be to the exhaustion of the don't mean to suggest that what happened to beth power is not important to her and maybe to the whole county of sag and i'm not suggesting that for a second but you've got the c b a the m o u it only deals with one person you've got somebody that at least superficially seems like it would be a confidential person visa v the prosecutor you've got the prosecutor got the statute why are you guys in the in the court of appeals there's something else going on here i'm  positive is this is this part of some broader dispute between the union in general and county is this a part of a bunch of cases or is this really a one off this is a one off as far as i know from the record that i've been privy to  this is simply an individual who had it as she described it i don't even know where the m o you came from i don't know how it came about i was told about it after the fact and she never really saw any need to inforce of it until after  and she was dismissed and then she goes from what had been her previous testimony that would highlight her brief i thought i was always there at the will of the prosecutor it wasn't until after the discharge of well maybe i wasn't at the will of the prosecutor what's this m o you think about that i knew nothing about and then it becomes an issue we don't even know where it came from i mean we could speculate but that's not our purpose and i certainly don't want to speculate as to where that came from or or or how that was created we just don't know all we have is the document itself which has to be interpreted by its own terms and understand judge sutton's position but it does just talk of discharge i mean talk of discipline not discharge and this was not of the splintery situation  let me that's what would happen if they went back on those grounds so back to the obvious why are you all here you knew about that you all agreed to simply hold the grievance in advance and tell this lawsuit was finished why constitutional void and yes it is true if we did the grievance process it's possible our wins and there's no need to do a first amendment claim but i guess the thing that might be tricky and that is that there's you don't have to exhaust first amendment claims  rule about exhaustion first amendment claims you're allowed to bring on whatever and of course the books of the briefs were on the first amendment issue that's been i suppose the most hotly contested that doesn't even want to do it but   the documents which both reference one another with the ammo you being particularly contingent upon the creation of the c b a and of no effect on till there is a c b a it's certainly part and parcel of that agreement its terms if the panel has no further questions no i thank you for helping us try to sort this out we don't i and i would i would just like to say i'm a little disappointed the judge guy wasn't able to be here personally my first experience as a law student going to observe a courtroom was a motion call conducted by judge guy on expectedly to me not knowing much about anything one of the most eccentric and harass members of the michigan bar appeared before were no i think there was i will add another what are you one thing judge guy that you could not see is when he responded to you when he was responding to questions by me and judge mckee he looked straight at us when he was responding to you he looked to the ceiling as if the question was coming from god almighty so that was i think some respect right there ok so we have rebuttal go ahead thank you judge mckeague i think what you're asking what's missing here there is something missing here and that is the ammo you was meant to guarantee beth power just cause protection not at will status for the remainder of her employment if the m o u was simply a manifestation of the c b a it's limited by a term that is why the animal you was crafted as an independent contractor to protect bethel fully and to give her the independent right to sue on that document just so we know what we're it's worth talking about don't you agree that the grievance procedure can identify both no  no no because the m o u is not part of the contract i did not agree that the m o u is part of the c p a you are making an assumption in my earlier line of questioning the m l you is independent it is a stand alone you're gonna try to make sure you're answering the question i'm asking the question i'm asking is not i'm not disagreeing with you about that i'm just saying in the grievance process don't both sides get to fight that point out in the process the district court already ruled that the events process only covers the age so you only get to that question if the m o u is part of the c b a but why don't why don't we just clarify that in the grievance process this this legal debate can be held there it cannot because this is a question of arbit yes absolutely so to say that this created some sort of vested rights on her part supper in an independent from the c b a is to simply least in my reading of this ignore the wording in both n and the c v a under michigan law as soon as the c b was an executed bar became a vested third party beneficiary she had the right to enforce the four corners that document as they existed at that time the c b a coming into play is only a condition reference c m here you mean your argument seems to be that if i understand it right that her employment her entire employment contract so to speak all the rights and duties and obligations arising there of all are wholly contained within this half page m o you and not the c b s what is contained the m o u and what is created by the among you is the right to just cause employment the right to be free from at will discharge i got that independent right that is my argument and that is separate  does do the other provisions of the c b a also at least not inconsistent with this also control her employment relationship seems to me the obvious answer that is yes and doesn't that include the duty to exhaust not for this independent your basic point is the m o use a separate contract yes it may have grown out of the c b a but it can't be bound up in the c b a grievance process or any other c v a requirements that your basic point is they would be viable say yes or no that's what i thought that's all i want to know and i think i think i think some of the answer to that but i understood i just want to make sure i understand what you're saying it's a separate free standing contract yes ok that's great all right thanks to both of you for your briefs and for your oral