six the letters were completed then there was a nd phone conference and then during that nd own conference judge hardy had requested that those letters just be submitted as the briefing so there was no necessarily formal briefing there was just a pretrial phone conference the request by the judge to have the letters just be the briefing in this case so in the courts looking at those letters that is the briefing that occurred at the lower level  when we get to the retaliation for a speech there's a three part test in the handy clay city in memphis tennessee case that three part test is whether the appellate engaged in constitutionally protected conduct whether there was an adverse action against or for engaging in that constitutionally protected conduct and whether her speech was a substantial or motivating factor for the adverse action to occur against her now once we get to the st part of the retaliation for free speech test that's a three part test we also get into a nother three part test with and determining whether she engaged in constitutionally protected  the st part of that test is that whether she was speaking as a citizen when we're talking as a citizen it's always in quotes and i want the court to understand that in this particular case opponent was speaking on and the election discrepancies that she wanted to report to the board this would be the public's interest in receiving a cent from ation is extremely strong and i didn't in this case you're looking at appellant and whether she was speaking as quote a state assent you take and you have to look at the content and the context of appellant speech general subject matter the setting that she was speaking and the speeches audience and her incentive for the speech so when we take a look at that i think it's important to know that during her speech appellate was not the deputy director of the marion county board of election she had been removed employee would have during this time period but she still have the title and celery director best she would have the title on salary but the duties that were participating and were taken over by somebody else so the way the marion county board has structure is that they have a director and a deputy director a d n r and anything that the director would have been doing there has to be somebody in that role in position to monitor and participate in that election she did not do that jackie fields did so you're bringing this claim because she was terminated as quote unquote deputy director under the complaint and the very beginning of it we state generally what her position was and what occurred but during the election she was not the deputy director she did not participate and now i understand that but you bring isn't the whole cause of action based on her being deputy director every day on her terminations or the speech she engaged in i'm sorry this is a shared if but i mean terminations as deputy director yes she was terminated from that position with them but that is different then participation as a citizen when you're looking at whether she engaged in protection and you want to do the cond up do you have any case look for that proposition that because you would use proof so things you no longer  role then you are just saying she is a confidential employee regardless of what she does because she has that title and you're looking at whether she is confidential and what makes her confidential and in this case she was not she was just doing daily day operations like any other employee such as the secretary for them or anybody in those positions would have done during that election so when when we're talking and also when you're engaged in something of great public concern you also look at even if you consider her as deputy d director how was she speaking during this speech did she have speaking as a citizen that is with the citizens interest was she speaking as a deputy director even though she had the title or she was she speaking as a citizens interest in the morning the public she was speaking as probably as a mother towards her son in the election that occurred in the discrepancies that she had saw which would make it even more of her speaking as her own status and missed she was on the boards policies i gather in relation to that election was you know that is incorrect she is reporting to the board what policies and directives by the secretary of state that were not followed in the election she was not stating her own opinion whether a policy that the board had or a directive that the board had was bad and that here's how we should run our elections that would be her speaking  our own and all she is informing them did or did not something occur that is factual whether he the the director did something in the election that should have been done or not done is not her opinion it is whether that but i don't think determination of her saying i am not speaking as the deputy director isn't is that self of whether the speech should be protected or not so if she makes the sentence before she starts on to it speaking as a private citizen i still say they make the argument that she's not speaking as a private citizen so the fact that she just informs the audience that she's speaking on her own accord or not as deputy director does not determine whether the speech is protected or not you know let me ask you this you know i'm in the fall shortly before the election she was reprimanded given a three day suspension what caused that that would be related to work related issues hostile work environment her on the deputy director those kind of issues non related anything related to the speech that she gave and when she's the deputy director she was that's correct and so what is she going to fuss with the director it was over several other different things that were occurring but also in other areas aspect of this case of course he was removed himself a few months later was but that was by the secretary of state that reviewed this case not by the marion county board they treated him differently a male than treated of the same election and she didn't even participate in the election he was removed due to what occurred in the election and he was the one that handled the election and i see that my time is up related to his political or policy views michelin berger was the deputy director the complaint doesn't fact allege that she was the deputy director at the time of her removal we would ask you to examine the complaint carefully because we believe that a lot of representations have been made about things that are outside the pleadings and this including that  a complaint a policy maker was complaining about his subordinate he declared that he was going to fire a very similar here to the schlumberger who was complaining about her colleague the director and about his actions and of course the top of this case was the fire chief and the fire chief was complaining about safety standards not being shared to the fire department and this court found that those were really if if something of this magnitude had in fact really come to her attention and d the only way that could have happened is by working at a board of elections she certainly had a duty to bring it back to the attention of the  board just as her councils made in the briefing and so therefore we would submit that even if she had been rigged she is it was still she was still speaking in her and is a board of elections employ when she raised those issues with her surely direct your attention to the latter part of that statute which additionally implies that even after a deputy director is appointed they may subsequently be found to be a necessary and thus shall not be one fourteen and i just want to highlight that for your benefit and thirty five or one fourteen says the director deputy director and other employees of the board are not public officers and shall serve during their  regard to the protection claim discords been clear that in order to bring an equal protection claim the complaint must allege facts which support either direct evidence of discrimination or just for a treat and if you review the complaint you'll find only one reference to gender and age and that's going to be under the intentional infliction of emotional distress state law  which says that if it meyer had the full knowledge of plaintiff's gender age health and wellbeing we would submit that falls or are short of the fleeting requirements to plead an equal protection said in her pretty face at least on reply that she did not intend to raise on appeal any issue with respect to mr meyer however in her st amendment retaliation claim she did repeatedly refer clay there are three factors that we take into consideration in determining whether a st amendment retaliation claim has arisen on the for on behalf of a public employee one factor of which is whether she spoke as a private citizen and we consider that factor to be determinative of her st amendment retaliation claim the fact that she was speaking as a public employee and not as a private citizen it's clear under those handy clay factors the impetus for speech setting ever speech the audience and the general subject matter and edition handy clay indicate that relevant considerations include whether the statements were made to individuals up the chain of command whether the content of the speech is nothing more than the quintessential employee beef that management has acted incompetently when the speech was made inside or outside of the workplace and whether it concerns the subject matter of speakers employment on all of those five a want to levon that her speech and i'm quoting supports the board members and performance of their oath close quote that her appellant brief page nineteen in addition as has already been mentioned she was speaking under and oath that she took as the deputy director but that is administered to every other employee so it doesn't matter whether she was speaking in deputy director or not she spoke at a meeting to the people held by the board of elections on a subject matter that was directly related to lection that it just occurred i see that i am out of time if you have any questions at me happy to answer  briefly and i wrote down judge gilman that was the allegation in the complaint that it was reduced to writing it was not attached to the complaint it had been reduced writing it was three pages it was not attached but at this stage the quarter to employ the created different categories for district courts to apply to patronage cases this court vents of the patronage case classification and applied  to protected speech cases so those involved a category one employee that the case actually turned and my opinion on the fact that it was a matter of a concern it was a memorandum here we have a matter of public concern of the upmost importance our elections is of the utmost importance so the pickerington test still gets done in rows and rows it says the test is she is a confidential employee and is terminated for speech related to his or her political or policy views she's not she's not talking about her policy views she is talking about the views that are already in place by the board and by the directors so she is speaking as to whether something occurred or not and when even if you want to try to apply the bronte exception what ends up happening is you end up saying a confidential employee is a macleod classified employee and we're going to do a pickerington balance test by saying in rows that we're only going to do it if their speech relates to his or her policy views you can always make that argument if they're speaking about what's contained in their job in this circumstance she actually has to speak about election laws so she speaks privately about election laws you can always make the argument she's speaking on her own policy views so what happens is is you actually are just applying a blanket th circuit argument which once you determine that there are confidential position you just apply the bronte exception and don't do a pickering to balance test which rose says we are going to do a pickering balancing test but once we look at this test what is that the that occurs and the reason rose is different than this case is the memorandum was not of public concern so it's easy to classify a category one employee that speaks out against their employer she was not speaking out against the employers she was speaking towards her oath the the same oath the board took this is information if she does not speak out how does the public ever get this information there is a separate line of cases under guard steady talks about political corruption this case more aligns to a political corruption analysis and the importance of the public concern over any application of l ron brown t exception that stems from patronage cases we would have meant that if she registered as a republican since she's a democrat she can be terminated under that exception what we take exception to is trying to say we're going to do a pickering timbaland's test in this case and say she's speaking on her own policy views there is a greater public concern stronger than any that we probably have had in a case before it that the rose case involved a memorandum a private memorandum that was written regarding a position this involves d our election process how is the public ever informed and remember the cases say there is an interest in the public receiving this information just as long as there is an interest in an employer keeping it from being  so they can use a efficient workplace so if we're going to do it we would submit that the pickering to balance in this case would always favor the deputy director because they have to speak about election