proceed further i would like to reserve five minutes if possible to respond to that i mean his argument that your clock but i'll also try to help you and watch i appreciate that before we address the merits i think what i'd like to do initially  is renew the motion for certification of the issues in this appeal to the state supreme court they are very unique they are issues of first impression under washington law both parties as well as the court below  conceded that there was no washington lodger directly on was presented in this case in the context of this case they involve obviously construction of a very new community statute for provision of reference most particularly they involve the whole doctrine of consent in the calm of defamation particularly in this context but i've been unable to find any real meaningful discussion about consent generally in the washington defamation with respect to that point washington has adopted the restatement approach to defenses to defamation as it yes it has generally under the circumstances are we not in a reasonably decent position particularly given washington's strong desire not to have these things referred to by us to evaluate what it might do if that issue is key in this case i don't doubt that we are in a position to apply the restatements i think it's because of the policy issues raised here that have to prod impact for employees in various settings in addition to law enforcement that this case unique in the way it will be interpreted as well as the consequences of it and so because not only are the issues of first impression they also raise major policy issues for employment on washington as well as employee employer relationship generally is as well as a law enforcement context make a good point and obviously when we sit down and consider we we do well we always look on issues like this whether or not y not initially though the issue of it being an issue of you know first impression was clearly raised by both parties in the primary briefing before the district courts so i'd like to t frankly there are a number of issues in this case and i'd happily take any questions the court has on any of those issues but i'd like to at least start by the premise that the statements that made by susanna johnson's case are capable of meeting and there's already was obviously a publication there's no dispute that the damages flowed from the communication the only issue that there may arguably be an issue of fact for the jury to consider is whether the statements were provably false or starting with the substantive question so where in the record would show that somehow the county well he passed them but said otherwise with respect to the county was not in a privileged capacity because they were not a former employer and so there's a whole issue of first impression as to whether third party or prospective employer can even comment on a  person's especially in the scope of these specific releases but also under the common law where the consent doctrine are qualified privilege applies in that context but in terms of the issue in this case in terms of malice is the standard of actual malice and reckless disregard and whether they're genuine issues of fact as to that issue and in this case the unique context of this case is twofold one is that while these communications were occurring there was clearly a civil service hearing happening that was contesting the very factual basis for that statement she was well aware she was sitting in the room where these civil service hearings were happening and she had heard from the key decision maker on the city's homeless selection process that had he not passed the polygraph examination there he never would have been hired and obviously she was aware because she worked for so much county that there was a contest  factual disputes as to whether he had indeed passed the polygraph at snohomish county it was represented to him that he had by the polygraph examiner it was represented to him that he had successfully completed the background examination in the presence of his that there was a problem and perhaps that your client had prior to the time that it was taken indicated that he has a problem with a polygraph exam before do i have a bad recollection on that there is there is testimony from the polygraph examiner but that's disputed by my client what there is clear or undisputed facts is that during the course of the polygraph examination when the questions were raised very generally about as i understand it about drug use or drug sales he paused and there was a physiological reaction at the point in which that exam was concluded he initiated the discussion and said i'm beginning to have some recollection of an event that happened twenty five years ago and then asked you know to and she said they could be examined on that issue and then he subsequently passed on that on another day so he closed that he had maybe spent ten dollars or or receive ten dollars from here when he was sixteen or eighteen and because he was not intentionally deceptive on that issue and that's the conclusion of the ultimate polygraph examination he moved to the next stages of the examination process and from his perspective successfully cleared those in and was clearly meeting the qualifications for the position but the real issue here is that we're going to see factually so i think that it would be helpful because we i think these legal questions could be dispositive  with respect is waiver right and i'd like to focus on that focus yes and i'm about to so thank you for the direction first there is common law in washington about waiver in the release contests and none of those cases are really relevant to this discussion obviously ninety percent of waiver and release context have happened in the context of recreational sports or other kinds of you know actions an individual clearly assumes the risk of future injury by scuba diving or by skin off track area or various other situations and those are the cases that are cited  waiver of and are right in this case and i'll get to consent in about a minute even though i realize the time is running here because i think that's a slightly different issue obviously than waiver but but where were clearly you know under the standards watching has to be acting you know intentionally and voluntary and involuntary relinquish and to permanently surrender that right and all of one's actions can be looked at in the context of this particular employment setting that he intended for third parties not prospective employers but third parties with specific personal knowledge of him to be able to provide information to the city of ellensburg and kill a task and the actions subsequently when he learned of the statements that were controverted was to richard draw and consent or not clearly to indicate that he had not waived any of those rights through correspondence from me understand the facts correctly coun there are two different employment possibilities for this information was released is that correct correct city of bones bergen could address different forms and if i understood it correctly he  knew that the release of this information was required for the possibility of employment in both these different jurisdictions right well i think the nuance here is that he knew that information about his employment history would be released  specifically did not realize that the polygraph information would be released without the form at least on one of those specifically mentioned polygraph information i agree that this kid has county does reference polygraph examinations but again it's directed if you read the language specific language of the releases it clearly indicates that it with the city of don't spurn the language is that he's author a saint i'm sorry authorizing communications regarding his work record and then actually says if you back up a little and actually says any and all information that you have concerning me including and then it goes on all those things without limitation more background it said but the county is relying on the fact that he consented investigatory records revealed about him and it's clear in own spurred at least that that language about investigative records is limited to criminal history records and is the basis of your client's claim that he felt that he had successfully passed that he had not lied and therefore that was the problem that the that the underlying information was incorrect he thought that it had been correctly reflected when he asked when he gave this permission to release that is that right and you know and he because the county had indicated that he had been let go for not meeting or sorry not picked up in this selection process for not meeting the minimum qualifications and in an e mail to me which i think is part of the record indicated that he was intentionally deceptive he was taking issue with those facts and the fact that that was occurring at the time that these communications were being made to go back to the release language it kind of has to bookends it starts with any information you have concerning me calmer and then that it does and i agree in there that with respect to investigatory files although it's included but not limited to that does hinge on the will history but then it has a kind of a zipper effect at the end where it says and such other information and records as you may have in your possession relating to me it's about as broad as it could be to provide a release of information and tell me what's wrong with that legally well what's wrong with that legally linked necessarily to employment because a medical person is a third party provider or a third party source of information you know he's not disputing that they were unable to obtain information from third parties including credit history and  personal character as he's just indicating that by his consent he's authorizing truthful communications from those people and accurate communications and he's indicating that with us where does that come from he doesn't use the word truthful and here you know information well again this is one of the concerns of mr alone is obviously these are you know boilerplate authorizations that he signed as a condition of being considered for employment and law enforcement failed he'd signed them numerous times before and he had never had a history or an experience where a prospective employer went to another prospective employer and sought information from them and i think that there's just nothing that limits that i mean i understand he would like it to be that way but i just was having trouble finding a ground for limiting it to that well with respect to the kid has county i think there's clear factual evidence that there was any consent given he then withdrew it and he hadn't even given the consent part in the contest county release until after the statements were made so if he had even consented to that and obviously having correspondence from me to counsel indicating that he was  withdrawing any consent or indicating that they were only authorized to make communications required by law clearly obviated any subsequent release that he was basically signing which was just a routine piece of business as a condition of his  lieutenant johnson gets it and they give him access to the five correct right but i ming but the timing isn't that occurred after he had already disclosed sonoma county in an exercise of any reasonable care would be to say you know i'm not authorized to provide any information to you based on a subsequent document or a document fire existing document i did to snow me county at that point he had provided the correspondence for me on march sixteenth in the second release was signed i believe on april sixth many as part of you know just getting a conditional offer of employment and i just have one quick question in the  ellensburg consent to release of information you says the second third paragraph of the first second sentence of the first paragraph i have authorized the department to gather all of a little information regarding my employment background personal history and other information which may be of a confidential or privileged nature is he not waiving confidentiality and privilege by that statement well again it goes to you know what he you know i can understand that you know it seems to modify you know his work record and trying to find the language that you're talking about with respect to confidential information and i i see information of a nation of a confidential nature may be included i think the issue isn't really whether he saw those documents as privilege or confidential at the time he just saw those is not within the scope of the release because both of the release was clearly limited to finding information about his background and reputation with respect to these other areas including his work record and not just that argument in mind on that point so why don't we hear from sure and i'd like to reserve a little bit from the county but i didn't get into many of the other can't really reserve what you don't have but you're kind of in the negative minus to your work out something from being effectively a contract case it's primarily that that was primarily the basis upon which judge zilly ruled below so primarily it's a release it's a contractual relays which the county has stated in its briefing believes it's fully in force was a unilateral contract or alternatively alternatively a third party beneficiary contract if for some reason that was not enforceable as a contract and i can certainly get into the reasons why we believe it is that's when we're going to the secondary arguments which is consent it's an absolute privilege and and down the line it's not for me and the county the novelty of this issue only comes if we get to those arguments down below including that that third level argument which is the qualified privilege so in terms of certification to the supreme court the washington supreme court that's the county's position is effectively this isn't a particularly novel this is a contract case there's there's ample authority to decide it on that basis yes if we're going down the line yes there is not significant amount of or any washington authority with regard to absolute absolute privilege in this  context but there is ninth circuit authority and i'm sure you're well aware of that from the briefing the cox case which is practically right on point that's pretty persuasive authority at least for how this case should be decided on that basis so from the counties questions i think i guess i just i do need to point out i suppose you cut off this are going to little bit but there are more issues than what counsel it had to there will be issues with regard to the false in statements there may be issues with regard to fault unprivileged communication and damages i would not assume that that's the only thing that will be at issue in this litigation obviously what we're looking at you said that ok so i was making clear for the record from the counties perspective if we're looking at this as a contract it's the defenses to contract and it's up to her to mr low and to show what's wrong with it from the counties perspective this was not something it was it asked for it's a third party that gets a release signed by a former employee or not employ a former applicant just to be sure there's a clear understanding of their county didn't just put this out there it responded to written requests that had been authorized by play to appear right correct this is intended when the county got those requests it looked at the authorizing documentation such as the one we talked about of and to go from ellensburg and read it about the broad languages and responded with the file basically is their right correct zachary what is the releases both releases here were not anything the county typed up made these are things from the other entities  ellensburg these are things that mr lowe and signed and provided to the county through through the investigator for those entities the county would not release this information but for those releases it is in effect being hailed into this defamation lawsuit because of mr jones own actions had had he not sought of climate there this would never of come up right is this was done in response to his request correct the county is was not actively trying to publish this information certainly when it was defending its position in the civil service hearings it was doing so but it wasn't otherwise trying to reach out to other  communicate what happened here was a record indicate whether when it received the two requests that any effort was made to parse through the file or just simply the whole file their employer record was turned over i  believe yeah i believe the pre employment packet is turned over and i think that includes the background investigation and his pretty polygraph questionnaire that makes sense they're not turning over you know the details of the polygraph result but there probably is in their notations that show what our polygraph result was if that answers your look didn't turn over the polygraph now the polygraph itself but there's notation in the in the documents that were information in that report or that print out there's a there's a narrative in english right the conclusion of them are right they write up a report after that and turned over i don't know that for a fact i but i know there was notation indicating the results in the record that was reviewed by both of those entities i don't know whether that actual report was was what they looked at are such notes what people would look for when they wanted to determine the effect or the results of a polygraph yes i believe gnomish county did the exact same thing when it was looking at mr jones background with other other entities that well as well it looked at under normal practice it wouldn't be the idea that some other polygraph person would look at this and be able to decipher it like say a radiologist could cipher a photograph of somebody who's broken limb if one were to look at the actual what they are not however i believe they probably could ok but the custom in practice is to look at the notes of the examiner at least with gnomish county what they did was is they provide this the background investigation but i think there would be some reluctance on behalf of the sheriff's office to provide that information because they want to maintain control of that sensitive process they don't want people to be able to game a polygraph so they're a little concerned about well just turning it over maybe they might say you can come over to our office and look at it maybe maybe yes i mean it's more of a prevention thing as opposed to is it covered by the release i'd say it is covered by the release and that's i guess moving on from that point is these releases are very broadly  worded counsel made a point that mr loman's expectation was such that he thought it would not go to his prospective employers only his former employers i mean the court has pointed out in the county certainly agrees there is no such limitation over just by virtue of their background investigators coming to snow much county presenting the relations and can we look at his information and we have that information as a result of that hiring process which i understand would have the information i'm just asking you how it is you happened correct and actually in the records it is our policy if you look at i think the simple answer your question might be taking a look at the evidence church in that partial answer sure that's how it got there it rather than answer why those people came to your office yeah and i don't have an answer to that i presume you are correct it's because of that disclosure  from the counties perspective just running looking at my time a little bit i think the important thing the county would like to emphasize is there will be a lot of discussion about policy with regard to enforceability this release i think that's one of the defenses that is trying to be asserted in the briefing as does it violate policy and i think you've already heard it here today i think plaintiff appellant is attempting to make this broader than it is the specific context of this case is unique it is law enforcement employment is not employment at large working at a fast food restaurant is not the same as being a police officer there is state laws that govern the hiring process police for police officers there are state laws that govern the removal of police officers i unique entity the policy as such and per common sense as well as state law that we are to thoroughly that law enforcement applicants we cited in the brief are c w forty three one zero one zero nine we're if we're talking about this kind of release being violent of a public policy i would say the public policy has the opposite effect it is to thoroughly about these applicants it is to to favor this kind of release so that law enforcement agencies do freely share this information it is not unfair to the applicant for if for a few reasons one is because you're always limited by the scope in this case in this case as opposed to looking at all cases in general in this case the scope was any information you have about me there's no contention we provided more information than we had we did not make something up it was something that was already in our files and something that mr lone was already aware of our contention was made clear in the civil service these theories about policy at the district court level is this a surprise on appeal to an end to the extent or was that for a thoroughly vetted you know i would say the request for sort of occasion was made after t destructor decision but the motion of the argument about policy i don't think those were those are argued but i don't have an issue with that the county does stay and it's in it's a it's a discretionary thing i believe because the county does have that issue and it pointed out in the brief that that that should have been made prior to that the summary judgment decision the request for certification but that's going back to my point on the policy is is the applicants are not without recourse one is because of the scope of the release are always combined are confined by that and t is they they are civil service employees they do have the right if a background investigator has taken some other law enforcement agencies information at face value and didn't do their own investigation they that applicant can go to civil service an appeal that background investigators the work they have done they can go to civil servants say this isn't fair you know you have this completely false accusation from another entity there is no basis for it and challenge you know that  counsel i think what you'll find is that she writes a letter that says you disclose stuff to ellensburg that we think is not fair or not accurate my response back to her was here's everything we did and it's exactly what you've heard today we told you we told that investigator this he he felt appalling was hired by said how much he failed our polly that's not untrue it all that's what mr lowe and told us the close to this was we've only told them truthful information and that's what we'll continue to do if you actually sign an authorization and so when we get another authorization that's what we do i don't think you can read the two letters without reaching that conclusion that we only ever agreed that we would d again there's nothing in the record to suggest that mr low and disclosed to the events of so much county to these prospective employers ellensburg and could attest county at the time he made application he wasn't asked about former there's no record that suggests that he was asked about former jobs that he had applied for his only asked about his work history and for that based on his work history he has obviously rank very high in their selection process for both of them he receive conditional offers of employment it was only after these disclosures by snow homes county that his consideration for employment was withdrawn so you're saying you have no idea there's nothing in the record  the record to that effect at all i think it doesn't matter because again it's his position based on washington law and the cases that the county is relying on that these kind of the issues that it arisen with respect to picking up the city of so much officer spoke to him and you saw that he was having this hearing that might lead to it's possible but i would imagine at that point you know the  civil service hereon process was not being widely broadcast i mean the fact that certain city of snow homesh officers had not been picked up by let me read question what difference is that   how they came to kind acts you know which well i think it's a matter of you know common sense you know that a reasonable person knowing that they were in the course of a dispute with city would not disclose that they had an you know pending or prior application with that entity and so again i would think the opposite but then again i'm not hiring for police departments well you know he it wasn't just you know there's a factual dispute about whether or not ms johnson just provided the record for them to review the issue is that she made the affirmative statement that he had failed two polygraphs without disclosing that he had  know you know pass the entire examination process in a polygraph is not a single entity you know single act and in fact you know their witness alone talks about the danger of using pass fail language and that simply not those declarations because it has the what you're in for the morning