state or local government policies and just a few months ago indeed vs borough dunmore the court said that if we can find just cause language or policy we're going to say that's a property so let's  assume for a minute that we agree with you on the property interest if you if you were green with me let's assume for a minute that we agree are you running ok i'll assume that what evidence do you have in the record that there wasn't just cause the fire your client i mean his conduct was fairly outrageous and he doesn't deny it well the best he does in my review of the record is he points to other employees and says well you didn't treat them so badly but he doesn't deny cursing out his his boss he doesn't deny throwing a pencil adam there are a variety of of misdemeanors that he doesn't allow he's entitled to have his side of the with respect to all of what he thought were the issues before the court so assuming that he has a properly interest why didn't he have whatever right to a hearing was d what happened ok the first opportunity had to tell his side of the story was this meeting with the supervisor and someone from personnel or august seventh i believe he got no notice he was called off the job brought into a room sat down read these charges mr bernstein i'm not talking about that i'm talking about the ultimate decision maker which was the board and it  didn't tell him when it was beneath them that out that there was going to be a board hearing and he collected all his lawyers what was wrong with the board then saying ok well he wouldn't have been able to here's why the board post an agenda saying we're going to meet at seven o'clock that's what happened to us but if he went at seven o'clock his fate had already been sealed because the board met that the i think that he sent the letter to the board before the bluer that it was the board's decision to terminate and they made an at isn't in the situation where there's only a limited free time in a hearing and in this case what was missing from the free time innocent hearing that you think in this record is what the board what the administration or the board accuse your client of doing that he denies if they confront him with the disciplinary memorandum and he doesn't say you've wrongly accused me that was smith not me or the person who wrote this up lied in this memo what he does is he throws his badge off he curses he throws it is is because of storms out that's not routine that it's over talking about preventing mistake and deprivations there's got to be something a little bit more specific you can't be asking us to i don't think you can be asking us to fact that there was no post terminate earring they hear whatever due process was or they'd preacherman ation in this particular case wasn't adequate because there was no bus terminations she'd says he never got it but the first notice was that he didn't finish something on didn't complete something on time and that was the same as the second disciplinary notice now the board testimony or evidence was that they considered his letter in full and all of his disciplinary all of the is to which he filed his response why i was in error now you say that one member said he didn't think he was contesting but obviously the letter did that but that that's all the board protect the money from the bork was we almost always follow whatever the district administration recommends so they spent a total of about five minutes reviewing this saying there was no record made obviously some i was didn't even think it was contesting it and if the goal is to avoid how much more ris can there be in a procedure like this why should they have thought he was contesting it when he submits a fifteen page document that doesn't deny any of the charges he's it he's tacitly admitting the charges by coming up with particulars launched against your client that he never disagreed with you just read the bill of particulars it screams out just cause now maybe those are lies maybe they're fabrications maybe misunderstandings or you we agree that the the crucial elements you process are notice of charges and an opportunity for a hearing  and it didn't faintly that you and if if those elements are there in a procedure then it doesn't become the purview of this  no post terminations perceiving our argument is that this hearing or whatever you want to call it was inadequate because there was no to sit down and work for five in the morning to write this up and if you look at it a lot of it is just rambling it's just not fair if we're talking about fairness and very personally support of him at all times in my experience he's a friend and i think he's very passionate in what he's saying but i think he had has it wrong and i think what the course pointed out is that this bill if he did get due process he did submit the sixteen page letter i think  we're departing as he was basically asking for mitigation in that letter he was not denying any of the underlying offenses and i think the fact is wrong for that and the board fully understood that but felt that terminations was appropriate and i think we have  mr bush his deposition he said i did not remember getting the notice but i agree i had a conversation with my superiors about that that incident and that was that he didn't do the work on time i believe that's director for differences i think that's the one where he said i agreed i had a conversation with my superiors they told me about it at his deposition i couldn't he said i could not remember actually getting the documents but acknowledge that the incident occurred and that he had a conversation with his superiors about that  she pointed out in that opinion by statute by mutual understanding yes or by written or unwritten policy we know we don't have a statute here nor do we have mutual understanding because the records clearly mr bliss he was unaware of miss written around written policy how do you get around this this was a clear written policy that says that you need just cause to terminate employees of the school district understand or it's it's unusual area law because we're going to the federal constitutional property property interests but the case law is very clear that that right is derived from state law delaware state law is that a employer policy even a written employer policy not exactly what yours very interesting area law but certainly the right is a federal right to due process but the case law is uniform that the the the basis for that right is derived from state law and i don't think there's any any question about that  very clear about that so in the present case a case before us we have a situation with a dell or supreme court you know whether people can disagree about that or not the dollar supreme court has said very plainly over and over and over again that a unilateral employer policy did not even say terry versus fight this was said essentially that again the point is to get it right and if there if there's not any difference in the outcome that really does it does it make it i'm glad you mentioned carrie because it doesn't carry those say that they get nominal damages even assuming that it would have made a difference doesn't the plaintiff get a dollar and mr bernstein get his attorneys i don't think so i have to go back and look at that i do not believe that it goes that far if the assume that i don't agree with myself and i have to be a lot your honor and i've many instances where not agreement with myself or so now if  property right here within the meaning of the fourteenth amendment is it your argument that this court is controlled making that determination by decisions of the delaware court here's what i say it's a very unusual complicated area but the property right theory certainly comes from federal constitutional due process principles but every case in that area says whether or not there is a property right you have to use the state law and in this instance delaware state law you may say it's you know maybe more conservative than you would like it to be the delaware state law is uniformly of an employer policy does not change the employees at will set so your honor i would say that the court has to look to delaware state law to determine whether there are some bases in delaware state law but is the a legislature it's a school board they've adopted unilaterally a policy school board is elected where i live are they not elect their legs were over that doesn't mean they could legislate for example in the reply brief there was a footnote about the about a what if they increase taxes very well that would be alter of erased exactly but it's not alter of your race for the school board to set employment policies for its employees that seems to be right up its alley that this policy that you're on and that's i guess that's the point and there's nothing that in delaware law that that there should be any difference between public and private employers and one of those cases the delaware cases and saying that the school board declared policy doesn't fit with them well aware description of a governmental law i know that your slightly better duller law i think is very clear and there is no suggestion that there's a different public employed private employers in the story nor should there should there be you know there's one thing to say my policy is to do employee is an employee at will then that's the equivalent saying he does not have a property interest and again under delaware law let me ask you have a thought of the week is what about the case where were delaware hasn't would create a property right so what if that's a new contract that no delaware court has ever had the opportunity to interpret couldn't a federal court say there is a property right under delaware law i guess of the court saying good good that of course because of an era yes this is couldn't a federal court say notwithstanding their lower law we have agree that's not the point i think the delaware court were or were then were saying that it would be entering to an area of federal law which i think every case says the genesis of that property right must be in state law and the states can be as generous or as parsimonious in their definitions of what a property rights want to have a proper way but in this context we're saying that his employment will status has not been changed which which the this court has said that's the same thing as a property right if you don't if you have no if you have no expectations you employment because your employer will you have no probably right and that's up to the state i mean i know for example in my practice i know there are states that alabama for example says that no public employee has any right other than a will expectation that may not be what we would want we mean that's a that's fair but under by the school district does not have the force and effect of all such as an ordinance as hell and therefore cannot be elevated to negligence percent my understand the case properly or thank you  was the process at the board meeting that you believe failed to satisfy due process ok here's a  at the executive session he didn't know there was one that that's not my question let's assume that he didn't know there was an executive session where he of the had a a federal constitutional right what about the person who claims he was wrongly convicted claims as the basis for the conviction the fact that a bunch of other people who were guilty were let go and he doesn't even challenge them well we don't have any evidence of that here we have a pretty says we they said we generally follow whatever the board recommends and i would suggest that a reasonable conclusion from that is that they are not partial and in fact they are predisposed i can certainly argue with bigger your client's business and ok i thank you for that