point that i would ask you give the same opportunity to your coach opposing counsel for the moment you get the golden opportunity to say i'm the judge here's how i would write the case not the conclusion but tell me how i would go about analyzing a case like this where somebody is talking about a personal staff exemption what are the thing throughout the discovery the commissioners the director personnel a county administrator all three of them as if they were county employees and i know i want you to talk to me generally now this is not your case for the moment you are the judge and you are now making law about looking at this in a way that makes sense for this in future cases so it could be a test it could be factors whatever you think but what would you decide again your honor i would start was how they were harmed what were they designated when their hire was  a starting point perhaps shouldn't a starting point depending upon its existence be relevant statutory law i mean  shouldn't we look st to any extent positive law that would speak to that it absence of it obviously move on to other things but of we have a statute here and yes your honor and that's an excellent point unfortunately situations of this nature not this particular case this they granted there is a statute here in this case that may or may not be helpful but we're we're asking what do we look to as as a tester for me or a number ought to be the inquiry that a court in the st instance applies in determining whether or not this personal staff relationship exists again i would look as we said at the beginning how ar cases that come before numerous courts i do believe that was meant to be a guidance but certainly have to look at the nature of the position as well starting on what what were they designated when they were hired and what's the nature of the position is it a policy making position or a confidential position for example you often see a judge's clerk or secretary mentioned but you later let me let me stop you right there because then you've hit on something that it interests me and you are familiar i assume with some of the political firing jurispruden some of the st amendment cases if you will that have arisen out of people being fired allegedly for expression of political views or for political attachments and sometimes  the nature of the position that is whether or not it is a policy making position or sufficiently close in a personal way that there ought to be it is in fact smaller than the county that i reside in in pennsylvania where county how many assistant corners how many deputy corners rather do you currently have and effect on whether or not a particular individual is or could be classified as personal stuff i agree and because i can i can tell you from my experience in a larger pennsylvania county and not a considerably larger but a little bit larger than yours we have to the best of my knowledge never had the considerable number how years ago they referred to all of them as deputy corners then it was changed where the code allows a car to appoint one deputy and whatever stack and needs to do the job move them even farther from a relationship with the coroner himself why are your honor isn't there like a deputy sheriff or a police officer or recess or they're out and so you'll know you work and you're right there are number of them now population is less than one hundred and fifty thousand dollars which means you know at some point we're going to be reduced to you know classification that's just you that's nature where we are and it is a small town in a small every the emphasis was on how many hours they work and the record keeping which is very inadequate here so a lot of thought and testimony back and forth over how do we trac staff by anybody including the coroner in fact even their policies would indicate a different conclusion they'd fire these people because they said we were concerned about  waived the affirmative defense of the personal staff exemption and i'm wondering how that can be we have a fairly recent case in fact judge ambrose and i are well familiar with it at a pragmatically sufficient time and if the put the opposing party would be prejudiced if the defense were allowed the prejudice here is stronger remember because of the that could have been done but it would still be here before this court is that was denied the prejudices of the issues so that what did you not get to develop in discovery well for example i would ask the county why do they feel they had a fire because of the overtime rules if they felt they were exempt why would they apply this policy of you can't work more than forty hours between two jobs if they thought they were exempt and you didn't didn't you know from the pleadings that there was  an affirmative defense being raised your honor the firm of defense i mentioned this is simply that the minimum wage and overtime rules don't apply and he said nothing about personal staff and remember in the early parts of discovery the county said we know we all is it your stronger argument to focus on the nd issue the merits as to what it is rather than try to get go up with a procedural issue of what looks like there's substantial amount of evidence you notice that this just that defense saying they weighed i guess i respectfully submit that there was not a lot of notice that they were going to raise this when you consider the tenor of the depositions their admission that we all the money it was just about  better spent focusing on the nd issue which is whether the court erred in holding that they were included within the personal step exemption yes your honor i agree and if i could switch that this point at this point  i'm saying your honor that the lower court also i think weighed the evidence there was conflicting evidence whether or not they were personal staff members based on the comments etc and i think the lower court  simply recent findings of fact are conclusions saying for example that the fact that the coroner goes through the county commissioners to to ask that the person be terminated that formality because they didn't even debate it they just voted on while a jury may conclude that ultimately but if the summary judgment phase i respectfully submit to the trial judge should not have done that there is a factual dispute was in regard to that even on the merits of the personal staff i believe that if you take the facts has been developed you see that under these circumstances these people should not be considered personal staff you mr brilliant you made some factors d which don't quite well only overlap in some part what would you if you would have you're sitting at a bar and discussing this case how could you take this and you can factors that's them down what would you what would you say they are controlling the amount of control and it's really all one in the same i can't imagine there'd be any situation where they would be somebody who was outside of the chain of command working closely with somebody and they exercise a certain amount of control so something from two thousand and four were working for iraq which is normally if you have two hundred and fifty thousand or more usually more you may have up to twenty full time personnel but it seems twenty four times personnel or twenty i guess are part of the twenty personnel here as deputy well it can be your honor however in the case from the western district conley in two thousand and seven we're looking at a director of public safety that's somebody who's outward facing not just an inward facing office staff or clerical staff  d the court in their situation used to tell you the factors to determine that they were in fact a personal staff of the elected official the mayor the mayor so that the mayor mayor for example could fire his secretary and it wouldn't have to be approved by the board of commissioners is that right in that situation i believe that they went through that analysis and yes and so if it does have to go through the board of commissioners would that be a counter indication that these people are not personal staff s i believe that this was appropriately it addressed that there is certainly a decision that comes from the elected official and that the board of commissioners or whoever the deciding authority is is a mere formality in in that regard  council referenced in several portions of his brief the commissioners responsibilities as it comes to maintaining the budget and that certainly is relating to the salary of same but hiring and firing is coming to regularly from  the corner and it needed all by the each and every one of the pilots why is it why is that mere formality as you call it needed here if i mean for example in a court to just say to judicial system you things aren't working out you're gone and i'm sure the corner could say that to secretary or administrative assistant within the office you don't have to ask anybody pro forma geez i just will let you know what i'm doing and assume your class this my understanding is that the way that the county code operates in that situation that it is a required but but mere formality but the decision ultimately those come from the from the elected official it is in fact the function of the salary board is effectively to set the salary and so long as the salary is of an acknowledged amount  the i don't want to is the word rubber stamp but the appoint the appointing power actually is in the hands of the roe officer himself right that's correct what do you think is the c the you may have one set of reading understanding which makes some sense in a very large so a manhattan that would make no sense whatsoever in tikrit that should be factored in that really is a honor i think that point i think that actually goes into the analysis of the closeness of the relationship i think we have we're going to combine those three steps and if the closest of the relationship really does matter if you're going to go through this analysis and personal staff exception in relation to an assistant but there were one hundred and forty of them and this person really worked in in conjunction with the attorney general but in the city we have a smaller county we have the ability to use these tests and this would be supposedly clews was terminated puttering when it was supposedly terminated but for some reason stayed on for a while and the rd person she was she still there my understanding is that there was some additional needed help and they were essentially brought back on but if if we're going to be if if there's a concern over how these people were how these individual plaintiffs accounts were treated that doesn't go in any way shape or form towards any law that we've seen that they are just trying to get the facts of that does that make sense that somebody is fired yet stays on and sort of like they ignored it for a while one question where these these person is true that they were paid overtime for over forty hours i'm sorry say that again your honor is it true that they were paid overtime or there were there was an amount that was calculated after the fact after the initial suit was filed to make a determination that they in fact were due and owing some level of overtime but in relation to the pleadings we didn't wave that argument at all it was just asking a factual question so they they were paid overtime for the work they did part time in conjunction with other work that they did part time within the county is that correct there was some amount it was not the amount that they were requesting  to some extent maybe a great extent these positions of a personal nature if you will personal staff whatever that means are going to be defined perhaps to a great extent by how a row office or structures his or her office and actually operates his or her office isn't that true if that is directed to me judge yes i believe that that is absolutely correct and and i apologized to   based on the closeness of the relationship and how they in fact utilize these deputies as they were called throughout the litigation and now we're changing it to investigators that were decades so so isn't judgment keys question really on the mark that if you have a very large office and a large area to the extent that the ten or you can use it of the word intimacy is employed  personally i don't particularly like that term in this context but wondering if maybe an inquiry into confidentiality might be a little bit more on point but it is judgment keys question as it was framed correct that it it could become really a numerical impossibility not merely impracticability but impossibility to have this kind of intimate or close or confidential relationship whatever it may be with a large contingent of assistance and consider them personal as a matter of law it might be it might be very impossible to do that which i think really again goes towards the argument that we should be using the ten you can factors to limit the scope of what types of types of situations where employing  highly i think your honor would be correct if i didn't have so many admissions from the plaintiff's themselves we if you review the deposition transcript which i  it almost reads like going through the ten you can factors one by one about their relationship with the relationship with the elected corner i i can't even x think about where there was a dispute o speaking only for myself i find myself at odds with the district judge on those factors then to me if i just look at you know it looks as if they come out on the other scenarios i'm not sure about understood your honor again i was going through the deposition transcript it seemed highly odd that where i was going we got so many concessions relating to each and every one of these factors especially the way the closeness of the working on the hiring and firing but  i believe that that set that does appropriately set itself up for a summary judgment whether isn't really no dispute coming from anywhere as it relates to facts on the opposite end i mean cases was there was there an upper well st of all was it pled not necessarily with great specificity but was an exemption pled as an affirmative defense that exact terminology the plaintiffs are not entitled to that the close of the pleadings and presumably the pleadings closed either prior to discovery or during the course of discovery the plaintiffs were on notice that the county was invoking an exemption yes it wasn't pursued by the defense all right so irrespective then of who pursued it in the there was notice then that there was an exemption that was being claimed that could have  been pursued exhaustively for that matter during the discovery process correct your honor and to that end there's been no prejudice that's been very complicated the the corner simply doesn't have an airy power and against back to that factual question did he have the power of the i or anybody he wants through the board of commissioners they acted on they voted on it and t the salary board sets as our e and the salary board also approves a hiring have you ever know your salary will arrive or the salary board is cuckoo county to have on the merits of a hire said no you're not hiring this person salary would say no i won't raise the salary for this position or i will raise the salary position your i i would like to know where a row office or office or in a th class county in pennsylvania  does not have the authority has been denied the authority to appoint someone where the salary board has set a particular salary and that salaries acceptable  question the plenary power officer can they hire and they say i want to hire joe smith for this job fine but at that point there has to be a position available and i think the case law goes back to how do you define plenary power away from it but i have appeared before a county serry board of bethel dania other then with respect to salary the amount of salary your honor i do agree that most of the time it is is approved if there's an existing position there's a it is in fact running an office and making decisions of hiring or firing that person has no superior other then the county commissioners right yes not the salary board the county commissioners are and i work in conjunction i do it's really complicated i guess the big on in now is the individual have plenary powers absolutely on hand and pounds to hire any number and any salary and the answer is no i think that's part of the factors i'm going to sample in on why that's not that's not i just just just a moment please that's right it's absolutely right and what but what you just said does no more than go to the amount of salary and no a row office seeking to hire someone has no right or authority plenty or otherwise to change alter a just that amount of compensation that's the focus of the salary board but the hiring and agree on it is it is archaic it is a very old system much of which derives from common law the position of coroner derives from common law and was actually one of the most powerful positions that existed at english common law many many centuries ago we've adopted it and i suppose all that does is give further voice to what justice must manner wrote in an opinion many many years ago and a completely unrelated area where he said this is again pennsylvania bumping along is the caboose in the long train of historical progress so we'll take this matter under advisement thank coun for their participation that we get a transcript should share will we'll have a transcript prepared thank you very much thank you counsel have a good day and if you're hon