possible alright i'll try to help you out but to say that a merit system employee is it well is an oxymoron alexander nama schon were lawyers in america the county attorney's office so i'm interested in this idea of the co also interested in the idea of unjust enrichment and so in your second amended complaint you say that as part of their employment plaintiffs were trained and specifically advised to  disciplinary proceedings were initiated in any costs associated with the proceedings alleged ethical violations while plaintiffs were employed by the maricopa county attorney's office would be paid by defendants their successors and then in your opening there had to be a contract you called an employment contract you called a merit system contractor the treatises seem to call it a personal service contract and the arizona law with respect of this kind of contract seems to say that the matter what you call it  you don't avoid the need for a factual determination of what are the terms of the party's agreement based upon all of the statements representations and course of performance and i take it that you think that you had some evidence that would demonstrate what the terms of this contract were and what would you say that evidence was ok yes your honor and you can take over the argument at any time they got going to if you like pulling the microphones a little closer i knew i was the one that voice was not going to carry so what's the what's the evidence of the con nobody gets by the ok because there was a contract right even if it was it will doesn't matter whether it was it will or not there was a kind of a contract of employment the question is what your argument is that contract of employment had a term in it that required the payment of bar expenses for people who were disciplined by the once said to be once said to your clients don't worry if you ever get involved in a bar proceeding or words to that effect the the county will pay and actually put he said is that i have this corruption taskforce whatever that i want to get together modify judge her question because i'm interested in the timing of this ok i want you to focus on the source of the promise what the term for payment of this mary cost at the time that they were hired is the only potential source at the time they were hired the merit system rules you know all right so there's no written contract ok at the time they're hired there hired and then we can talk about you have plenty of time i think you can talk about modifications of the terms of the employment but what you can see that at the time that they were hired there was nothing that  won't pay for a trial i don't know if i would say category of employees for whom reimbursement would not be granted right so that's one piece of implicit evidence that arguing anything else that's what they were at the time they're in florida so now i think that what the terms are can be proven by representation representation and of course performance what michel i'm forgive me i'm just want to collect my first question at the time they they were hired let's assume and if they they were hired the question was does a contract exist to pay bar costs for these people the only evidence you have is a is the a policy a policy that doesn't cover these people right ok so now judge judge eaton is asking what occurred over the course of employment that might suggest that their contract ok mr judge eaton is right when you're her says the city of globe says that it policy by county attorney thomas we have the promise by county attorney thomas which i would characterize a little differently than judge her with thomas put together this can rep sion area etc these people knew that it was going to be highly political it was in the middle of the arpaio thomas mess they knew that they would be risking probably their jobs certainly tremendous public scrutiny and therefore they benefit under the terms yes what was the additional ok teresa these two women took on duties that were not within what the duties they did every day is there some time to record that says they would not have undertaken these duties in the absence of mr thomas's promise yes what is in the two affidavits now said they basically i wouldn't have done this unless thomas told me that right unless unless i was promised protection and not just financial protection the protection is a lawyer that he didn't suffer any damage from taking on the corruption as you call it investigation the damage they suffered was from engaging in unethical behavior which the arizona supreme court has found occurred and and we can't question that we can't question that finding so the question is what is there in the record that shows i undertook this on ethical behavior in reliance on mr thomas's promise they under they undertook behavior in reliance on thomas  promise thomas was the attorney was the county attorney let you like them or did you must assume for purposes of this that they were appropriately disciplined for being unethical and their and the their damages arise from the proceedings in which they were disciplined so the question is what evidence is there that they took under took the things that got them disciplined in reliance on mr thomas's promise i understand to think they undertook participation in the task force on thomas promise  what shows what is there what in the record shows that when i made the decisions they got me disciplined i did it relying on thomas promise know i may not be important yes but i was going to say first of all i think they had a right to assume that thomas was not asking them to do anything unethical and well that's the point the point is that they're not suing today because they potentially contract modification based on county thomas representation the problem is as i read arizona law you've got to have consideration and i'm not sure that you can use unethical behavior to put forth a plea consideration th not at the time everything continues to happen let me say the contract things first of all other county attorney's fees and costs were paid one of whom was peter spew who was  so let's assume i have four employees and i say to one of them you can go home this afternoon to take care of your child if i agreed with the other three that they can go home that afternoon to take care of their child to  no and we have here a trust agreement that says the board will decide in its discretion i understand this may affect your equal protection argument in focusing on your contract are located so if the board decides in its discretion to pa rebuttal good morning hours my name is jim armstrong i'm here with my partner jeff leonard who was the trial counsel in this matter we represent maricopa county county attorney montgomery on the other county defendants and apple isa so could you since we're are we're says can you can you address miss obenshain and miss alexander before they go off on their misadventures meet with mr thomas and mr thomas who's their supervisor says i know this to be this is going to be hotly contested actually what he knows at the time is that i'm about to commit misconduct that's going to get me disbarred so when you go do this don't worry about bar costs he's already thinking about par your perspective he's their supervisor is not some evidence that a contract to pay their bar costs existed it would be perhaps some evidence but if you look in the record none of that appears  ms mccracken several times what it what is the evidence of this contract what is the evidence of this or a modification the only thing i heard her say were the two affidavits and i urge your honour's to read those affidavits they won't take you very long ok if i have them here but why d read the physician first of all i know i was assured through management on multiple occasions that any attorney that received any kind of discipline would be covered by the maricopa county is attorney's office for any costs fees et that were incurred if their work was related to their jobs county attorney said evidence that there was a contract it leaves off one very big piece of evidence that is necessary for a contract and that is consideration not she says this from the beginning this is from day one affidavit as part of my employment i used train to specifically designed it a far disciplinary proceedings were ever initiated any costs associated with proceedings the alleged ethical violations while i was employed by maricopa co attorney's office would be so that's the affidavit what's wrong with that what's wrong with that is that does not indicate that this was a promise made on day one of her employer might be thought to tell you why it was a promise made later so their argument is look before i set off on my misadventures i was assured that i wouldn't have to worry about bar costs and that's consideration i wouldn't set off on these misadventures had i not done so i wouldn't i wouldn't have undertaken this this assignment which i was not required to undertake how do i not been had i not been promised that i'd be covered why isn't that consideration that because that isn't really their argument what i'm not asking what they're arguing i may be i may be as ok i'm not asking what their position is i'm asking if that's if that's what's in the record why isn't that consideration and when you say that you mean the the quote that you know if you can judge even read to you from the  they they both say before i went off on the conduct they got me disciplined this part in one case suspended in the other mr thomas reiterated to me that and i would not have undertaken this assignment but for that assurance why isn't that sufficient evidence of the existence of a contract because again it is not it was not part of the original terms of the contract as as john was going to found so it was as let's assume it wasn't and the judge eaton's point is it may be evidence but let's assume for purposes of your argument that it wasn't part of the initial contract why wasn't the contract modified at that point to include that assurance because there was no consideration given for that but that's when you and i keep going back and forth on that they say there was consideration because when mr thomas promised me that that wasn't that motivated me to take on this assignment had i not had not promised me that it's really a strange argument which is that i was worried about getting this board when i took on the assignment but when i took on the assignment i was that that was in my mind and i wouldn't have taken it on but for this promise right they characterize it and we took on additional duties  or i wasn't required to go out and file false charges against a judge i wasn't required to file a false rico claim but i did it right in part because mr thomas promised me that i wouldn't have any bar costs if i did well their conduct many of them deserving of sanctions with the arizona supreme court's taken care of that already our question is why isn't that consideration it's it's not consideration for the reasons judge when said you cannot it what was promised what was promised to be given their unethical behavior i will go out and commit now but when they saw that i cannot be that's not what i say they say i wouldn't even though i've undertaken the assignment and if i never undertook the assignment i would never would have i never would have engaged in the young ethical behavior their assignments are what they were directed to do by the maricopa county attorney their sign it's changed over the years they were full time deputy county attorneys they were given a different assignments there is no indication in the record that this was any kind of a different assignment or they say don't they say i wouldn't of i wouldn't have taken on this case i would have taken on this assignment in the absence of that promise no they do not say that come tell me tell me what point when when the issue of consideration was raised they had an opportunity to put in supplemental affidavits supplemental evidence to support this argument that we took on additional duties and and those additional duties satisfy the consideration element they put in no evidence of that they have stuck with their original affidavits which make no reference to what your honor just described about  on that prophecy only place it occurred was in their motion papers as an assertion of counsel there was no backing evidence from them or from anyone from mr thomas in fact mr thomas never testified in this case so let's go back to judge  question because it's a good one i think he says we don't know what the contract was at the time that they were that they signed up because there's not much evidence of it but what we do know is that over the course of their employment went to other ones came up and i think they were both before it's obvious your name is alexander opportunities to take on just the first two opportunities that came up before that involving county attorneys that we can find the county pay the costs and then and add to that mr thomas maybe he's got north already to do so tells us that that don't worry your course will be paid why isn't that some evidence that gets them to a jury and just to add something that there's also the existence the mere existence how can that be evidence of a contract a contract is a is a negotiation it's a bilateral discussion how can something that's happening to a third party to mr spot to mr duffy how can that be evidence of what our over our arrangement is our gree cost based upon their radically different circumstance baffled by this whole notion of discretion discretion isn't discretion you have an obligation you the discretion is i have an obligation to pay the obligation has to come from someplace you can't take the taxpayer's dollar and just give it to somebody because you want to because they were a good guy you have to have an obligation to pay that money well i think i think judge analysis of that of that issue was correct the county made a rational cost effective decision mr spa was willing to agree to the sanction though it's your position that there's nothing on the record to demonstrate that there was an agreement between the trustees and mr spock that if he would sign the agreement that they would pay as costs i couldn't find anything in a written agreement any kind of agreement no i don't think there was a written agreement so that this decision to pay these costs was made after he signed it so that can't be the reason i don't know if they have an i don't know if that is in the record your honor about the timing of it and all i know that they cooperated that this decision was made to pay fifteen thousand dollars rather than having to pay hundreds of thousands in defending the swears that agreement that's not an agreement there's no agreement to i'll do this i'll sign this agreement to save you any money know your rights to simply no agreement that's correct it was  discretionary decision made by county attorney county risk management there is no evidence that they made a discretionary decision to pay it however those reasons of course but there's no evidence that that that they'd agreed with either mr d an exercise of discretion is what you're saying but it's also it's within the discretion of the county as an employer to pay health insurance once a place to pay defense costs in disciplinary proceedings to play sanctions in just  second if they chose to do mate you paid a lot of money in defense costs and that's just discretionary that's not an obligation an obligation about on behalf of the county to defend you know is there an obligation to defend and pay for defense was a policy yes there was a policy in place in the county policies and procedures that they would defend county attorneys on defense cost that's reference from what we're talking about here in disciplinary proceedings and in you are if you sufficiently display name in this handbook that this is not a contractual commitment that these policies are changeable at any time and that's what these this handbook said and in fact it said but the handbook doesn't cover able from the previous cases she went out and got herself disbarred other people got themselves suspended or sanctioned in this alexander's case where she gets a six month suspension why that why doesn't why isn't it a re asonable inference that the bars agreed to pay her costs it's paid them for mr spore who has what kind of sanction he was sanction for negligent now what was his what what sanction did he receive i think was suspensions that are rather prior to her and the county pays off on each of them i understand this of a shawn situation is quite different she gets disbarred but miss alexander gets a six month suspension why doesn't she have liable for intentional and ethical acts very clear if you read the supreme court opinion and unbolt excuse me the other two were not they were not me well mr spock i wasn't because i made a deal right it's the same  the same conduct it's the same kind lee says as compared to miss out xander mr sports conduct strikes me as worse but he makes a deal he makes a deal with the bar and gets it and they call it negligence well i don't want to you know i could take a half an hour talking about the you know the circumstances of that if it is it is in the record however not in the record that he was only found liable for negligent act that responded participated in in assisting in prosecuting you're saying because there's no if you look at it because he basically resolved the case there's no specific findings well i'm looking at s c r twenty there are several paragraphs describing the proceedings against and the reference is i think there is a reference to the finding being that it was it was simply negligence as opposed to willful misconduct what your argument is well there the other two are very different and as to miss obvious sean i agree with you as to miss out xander i'm having a hard time figuring out why she is and what isn't comparable to those other two may not make any difference well  to your argument that this is your argument was you know the other two were very different and with mr alexander i have a harder time accepting well there's also a difference in that you know neither mistress far mr duffy made any claim that you are contractually obligated to pay our sanctions in this case so can't respond to judge question he says i'm not sure he's right about arizona law but i've been wrong about arizona a lot of times before the state could not pay these costs without some contract with the county without some can some contractual obligation to do so so the fact that they paid them must show that they have an obligation to do so what's your response to that i know of no arizona law that would preclude that i think th again this is within the discretionary expenditures that the maricopa county attorney's office can make in managing its office in running its its operations i have one other question of judge when they were yes i would take you over time but so let's assume mr thomas says what they say is he said can he alter their contract of employment certainly he can alter their contract of employment in terms of assignment how much they're paid other things like that why can't you alter their contract of employment in terms of whether or not costs are going to i think he probably could assuming consideration was there ok so you're not saying if they say he said something you're not saying if he said that that wouldn't al let's put a couple of minutes on the  pay for costs of discipline absent approval of the board what it says two point two point one point one two e r two five ok fine is the reasonable attorney fees and reasonable costs are rising out of a disciplinary or licensing proceeding before a professional regulatory body upon written approval from the trustees struck prior to payment right so would just as well you want to pay those without written approval of the trustee right yes but we again we put forth that it's a minister serial and also remembering what you tell me what you like i mean where it says it's ministerial if it's minister why do they why do they retain the discretion to prove it might not occur because they're an insurance company and they're the county self insurance but my gun really said that he made the decision not to pay these cars can i ask you to know that i would like something in the yard on a totally different point what's the difference between this lawsuit and the state lawsuit that i think is pending appeal right now is it for the same thing no the state lawsuit is on all of the things that judge her with his talked about not what they were certainly evidence of what the contract was when he represented that these costs would be paid that was evidence what the contract was that they were working under at that moment i don't think so because i think we characterize the conversation a little differently he comes to these two lawyers and says i want you to do this i want you to do all this corruption it's going to be highly political and i'll protect you we'll make sure that there are no repercussions that's a little different than saying oh by the way bar cos i don't think anybody at the time although they knew all of this was dangerous i don't think they were thinking about bar cos the other thing is my colleague said that maricopa county attorney made to say discretionary decisions about fees if that is true then the county attorney is an official of the state of arizona can both modify the contract and make the discretionary decision the other thing is is that there is no evidence in the record that anybody ever asked the trust board appeals decision and i take it that's based on the promise that we will cover your fees right yes it's not pay it's so it's not and i don't think the county disagrees today that they promised that the fees would be covered in the handbook  well the point was is that the court of appeal says there is a contract in re mandate for the terms of the contract but it's but this dispute was as you told judge when about about how much how much fees would be paid right and everybody agreed everybody went on the merits you got a much harder case you just was arguing that you get to a jury well yes and quite frankly that's what we all would hope for that that's why summary judgment shouldn't be used in these kinds of cases and hopefully we should all be going to trial thank you argument thank you very much you're both sites interesting arguments in this case the matter submit it for decision by the court