familiar with the brief so i just want to touch on some of the very key points here with respect to the michigan whistleblower protection act claim just to clarify in terms of what miss mccrae reported  regarding the state status of the detroit public schools budget miss mccrae reported in june two thousand of eight that the detroit public school system would operate under a deficit in other words a budget deficit for the zero seven zero eight fiscal year she also reported that as a result of that but deficit it was likely that the district was going to experience a deficit budget for the upcoming year and in fact she recommended that the district as part of a deficit elimination plan adopt a deficit budget in and a  plan to reduce that budget deficit over the upcoming two years that recommendation was entirely allowed or to the michigan state school aid act this mccrae also reported in june two thousand and eight that for the past several previous years going back to two thousand and four the district had actually operated under deficits but had incorrectly reported to the state of michigan that it operated under balanced budgets so it was those three things that mrs mccririck poured in june of two thousand and eight now the district court in this case only considered the fact that miss mccrae had also made reports to the board starting in august in september of two thousand and  seven that there had been mismanagement of state funding it's not disputed that she made those reports the issue in the problem in this case is that the court disregarded the fact entirely that miss mcrae had made those additional reports in june of two thousand and eight and as a result disregarded the evidence showing a causal connection between those reports and this mcrae's terminations in december of two thousand and eight i can't remember did the district court not talk at all about the june two thousand and eight reports it did address that your honor and what it with the district court indicate it was that those reports regarding the fact that there was a operating deficit and also the fact that there would be a deficit budget the district court indicated that those reports were not protected activity under the mission with or protection act and that is the why isn't the district were correct on that they're absolutely incorrect on that as we state in our our briefs and under the michigan state school act it is a violation of that act for a district to either incur a deficit brief at ph thirty six so it clearly was a violation that miss mccrae was reporting to the board a violation of the state's koolade act for d p s to the remedy when that happens under the  remitted it actually does your honor and that's what that is exactly what mr mcrae was recommending to the board the remedy for the district incurring a deficit is to lay out what's called a deficit elimination plan whereby that the district will explain to the state how it proposes to reduce that deficit over the upcoming two years and that's the plan that mr mccray recommended to the board opposing counsel indicated that the plan that mr craig recommended to the board was illegal and that's absolutely correct the michigan state school aid act specifically says that that plan that miss mccrae recommended is entirely permissible under the act so it's a little bit confusing it's permissible to have a deficit budget it is not pretty well in just to be clear on or it is not it is not definite not permissible for any school district under this act to incur or operate under a deficit case is to develop the causal connection between protective activity and determination certainly while in iran or actually that goes to my next point in this case there was direct evidence that the board threaten miss mccrae if in fact she went forward with this report that there are that a deficit had been incurred and that the the district was going to adopt a deficit budget so first of all there is direct evidence that m was threatened that threat in of itself is a violation of the whistleblower protection act secondly that threat is supporting evidence for the prime official claim the  one of the board members specifically threatened miss mccrae and told her if you make this report and resultant there is a emergency financial manager that's going to be appointed you're going to be fired and in fact in december of two thousand and eight that's exactly what happened is that the state of michigan appointed emergency emergency financial manager to take over the financial affairs of the board of the district excuse me and the district a week after that announcement fired mr gray didn't even wait until the end of her contract which was going to be at the end of that month so we think that there's a definite calls a connection between mr gray's report the threat and then the by the district or how well your honor i can speak to that question entirely i do know that one of the ways that the district raises funds is through the issuance of bonds line item on the property of local property tax assessments and that is the poor would be the primary funding source and when that be maybe you know you're not aware of it but i thought that was where most of the  majority of the budget for the schools came from and again i do apologize to the court i can't speak to that question with any authority i do know that the funding does come from state and federal  sources there's a recent supreme court case university of texas southwestern medical center versus nassar which is dealing with the causation standard in title seven retaliation cases do you know whether the michigan courts have adopted for purposes of the michigan whistleblower act the same standard as the nasser i'm not familiar with the case that the court's referring to but i am very familiar with the michigan which were protection act and i can say with authority that michigan has not adopted the title seven standard so what is the causation standard that you must satisfy what what's the phraseology that michigan uses michigan uses the phrase e ology that the plaintiff must show that there was a correlation a correlation between the protected activity and the  wrongful act so in other words it has to be more likely than not that the plaintiffs engaged in this activity mean the plaintiff hinge that timothy and that that was the reason that the defendant took the adverse employment action it doesn't have to be the main reason that the defendant took the action it doesn't have to be the only reason that the friend took the action it in simply has to be one of the reasons that the defendant took she was praised by the board or doing her job and by adding out about this when others had not and that it was only much later after hostilities developed between her and some members of the school board that she was discharged under a contract that allowed this or the discharge for any reason or no reason what do you say to that conclusion by the district court certainly honor and that goes to the heart of our appeal here when cremate those reports regarding state you know mismanagement of state funding back in august and september of two thousand and seven it's true that the board said gee that's a nice job miss mccrae it wasn't until the june two thousand and eight reports that the board reacted unfavorably to miss mccrae in the reason being these reports that she was making in june of two thousand and eight meant that almost certainly the state was going to step in appoint an emergency financial manager so the motivation for the state to retaliate against mrs mcrae wasn't there of the respect to those earlier reports it was definitely there with respect to these reports in june of two thousand eight because it meant that there was going to be an emergency financial manager appointed and that's exactly what happened earlier that unless something changes they would continue to be deficit  spending by the board and she tell them you're so before it when they praised her didn't she tell him at that time also that there had been for some previous years deficit spending and the same would be true in the ensuing year unless there were a change or actually i think what the defendants have claimed in this case is that miss mccrae was told by certain members of the financial administration that there was going to be a deficit that was going to be incurred in that's one of the disputed issues is whether or not the defendants fired miss mccrae because she knew early on that there was going to be a deficit or should have known and was not aware of that and didn't report this until around the end of may into june of two thousand and eight that's actually one of the issues in this case is why did the defendants fire we submit that that's a question of fact for the jury we submit that they fired her because of the fact that she reported the information publicly and that in turn ended up resulting in the them being appointed deficits would be covered by the whistleblower protection act because those deficits would not have occurred yet and it would be illegal to incur those deficit as the school boards not allowed to have deficit so would that be covered under that act as would past deficit her reporting of past deficit is because then she would be reporting violations of the law that would be cover d what's your position on whether her reporting of future anticipated deficit would be would well government and as the court apparently is indicating obviously those past  deficits were a violation of the act the deficit that the board was going to incur was in the process of incurring for that current fiscal year was a violation and then also the  whistleblower protection act speak simply to a violation of the regulations of the fact that someone is telling the public body that there's going to be a violation i am aware of no case that suggested that would not also fall under the province of the whistleblower protection act all right thank you thank you very represent for this hearing today yes plaintiff bassists heard whistleblowers claim on two types of reports the first reports were made in august and september of two thousand and seven within two or three months after she started at the district she reported to the board misconduct and mismanagement in the operation of the district for several reasons the lower court concluded and we certainly believe it's correct that there was no causal link between these reports center terminations the reason for that is because there were seventeen months from the time she made these initial reports and the terminations and according to the lower court if it's at that and left of time there's got to be other corroborating evidence to establish a cause a link with those reports be protected statements they probably would be i'm thinking they could be protected the key weakness from your point of view is the cause a link is a causal link with this one and there's absolutely no evidence of a causal link in fact just the opposite the plaintiff admits that she was commended for making those reports by both the school board and the state and further she said the school board was especially pleased that she reported this mismanagement and misconduct and that if i could add is keeping with you know or worse and she also told by a board member of the church if the if the board if there had to be an wouldn't that sort of go contrary to your argument well yes and no for the initial reports it had nothing to do with the emergency manager but for the second type of reports that's where this whole threat that was made to her by jimmy womack comes to the for exactly did he get so mad at her and up up and down really why well some background your honor with the board this board she was reporting to the elected board had only been in power for less than a year the district had been taken over by the state in one nine hundred ninety nine until the middle of two thousand and six and if the district had a budget or was operating under a deficit budget it could be taken over again womack did not want the district to pass a deficit budget which would allow the state to come in and mandate that there were very stringent reporting requirements and that if the district didn't meet the requirements and didn't file the deficit elimination plan and didn't file or abide by any other requirements the state could impose if there was a deficit budget and emergency manager could be appointed which would basically be another takeover of the district the emergency manager assumed all powers of the board or members they're not compensated thirty five dollars a meeting or something if you want to call that compensation so the second types of reports had to do with budgets and as i read these briefs for the first time i was a little bit it seemed a little confusing between budget deficit and deficit budgets which are two totally different concepts and i thought plaintiff was alleging  whistleblower's claim based on both the budget deficit had to do with the two thousand and seven two thousand and eight school year a budget deficit occurs when the district  its budget for that particular school year the problem with the two thousand and seven two thousand and eight budget deficit was that from the time she was hired in july two thousand and seven and tell as mr rivers just told you at the end of may two thousand and eight the plaintiff the c f o and treasurer of the district was reporting to the board that the board would have a balanced budget or perhaps a budget surplus it was not until the end of may two thousand and eight near the very end of the fiscal year this c f o and treasurer of the district apprised the board that you're going to have a budget deficit of tens of millions of dollars for two thousand and seven two thousand and eight which eventually grew to over one hundred million dollars and by that late in the school year there was no opportunity for the board to address the budget deficit with layoffs or anything of that nature and they were pretty upset about that so in regard to the reason they are mad at them was because she had not discovered and report them the not only the past but future implications that there would be no that would be a large deficit yeah primarily the past but yes it had future implications as well this was a huge budget deficit which could not be dealt with right at the end of the school year you couldn't lay off teachers or close schools or whatever at the end of the year to address the seven zero eight budget deficit why isn't she engaged in protected activity fired and fired because of her protected activity why isn't she making out a claim because it wasn't protected activity  was part of her jabot to report to the board the state of the budget and this was typically done by the c f o the fact that she bungled the jab and instead of reporting all along that there was this big budget deficit dot there was a balanced budget or a surplus and then reported a budget deficit near the end of the school year is not turning into protected activity it wasn't illegal for her to report to the board of budget deficit or anything like that it was just poor job performance on her part it wasn't protected activity let me ask ask you this  what was on her excuse for the late notice was that she had a audit company to look into the financial state of affairs and they didn't complete their work until sometime in had this audit company working on it and they didn't give the report on current sometime in two thousand and was part of it great city schools i think it was and they were looking into the district and they spotted it this huge budget deficit the fact of the matter as it made it in the case is that an employee of the district had a preist her that and this involves the follow fallout  so there's a factual dispute about well she claims there is a factual dispute dispute it's not legitimate because on the record as a memo from mr esau in december of two thousand and seven uprising or of the fallout account and if she didn't lay off the various individuals that were placed in this fallout account there would be a budget deficit and also mr esau priced her that she was doing things improperly by basing our budget on enrollment numbers and judge when you asked the question before how does a school district get its money well it gets its money from the finance not at all not at all it's the state and then special programs come from the federal budget the cities only involved in the tax rolls when there is a judgment or special assessment usually judgments the city can certify the judgement or the school board can certify the judgement to the city and the judgment is placed on the tax rolls and the citizens of detroit have to pay for the judgment  education public education is the responsibility financially of state yes or but anyway as to the budget deficit there also is not  causation she cannot show that she was terminated because she reported the budget deficit that terminations was because she didn't figure out what was going on at the school district and take actions to address that budget deficit she should have reported the deficit much earlier had reported my understanding that she had reported that there had been consistent budget deficits every year previously for some period of time why would anyone think that a miracle was about to happen so that there would be no budget deficit in the current year i mean wasn't it would never body think well we've been running all these budget deficits previously every year we're going to have one coming up as well was there some question about that students leaving the district each year that the district would cut its budget ten fifteen percent every year thinking ok this will address the deficit and it never did because more students laughed so there would be balanced budgets submitted each year and typically the district didn't meet the budget i want to speak very briefly about the whole concept of deficit budget budgets which is totally different from budget deficit in under michigan law three eight eight point seventeen zero two the district just supposed to submit a balanced budget each year that's the first sentence of the statute the second sentence of the statute seems a bit contradictory however because it provides for a procedure under which the district if there is going to be a fun balance or another words in other words a two years and this two year budget is what's being called in this case the deficit budget so what happened at the school district is that jimmy  womack joyce's giles especially leaned on ms mcrae the c f o to submit a one year balanced budget even though that called for draconian cuts the reason for that was if you submit a two year deficit budget the state gets involved it requires reports it monitors what's going on and it can impose additional requirements on the district and the district it just been taken over for seven years they don't want that again so they said look if you submit a one year balanced budget basically phony way you avoid that and as they did every year with one year the whole thing was based on magic well it was very optimistic when they submitted the balanced budgets for one year but that's what they did every year up until this year what happen with your position in terms of the causal factors for her terminations what do you say was the cause or causes poor performance poor performance and not recognising the issues that led to the deficit budget and led to the appointment of i'm a mergence the manager what she didn't do was really her job what if she had part of the reason for her terminations being protected activity and part of her reason for terminations being poor performance what what is the causation standard that applies to the whistleblower act by a sickly we believe it's more of a but for standard but for is there a case there's the supreme court case in a different context involving federal law the nasser case from june of last year is there a michigan case that is dops nassar or that previously adopted that but for standard i haven't seen michigan case formally adopt nassar there michigan cases which talk about in that one it's coming to mind i think we've cited cases in our brief which stand for the proposition that the plaintiff would not have been terminated but for the report and we also claim that we also take the position that the report which was approved by the board the submission of this budget was deficit budget was approved by the board at an open meeting with hundreds of people there and they knew it would be submitted to the state we submit that's not protected activity she was just doing or jack she had to submit that budget to the state to the state and the board knew she was submitting it the board approved it and authorized her to submit it so that was not protected activity at all thank you retaliation particular activity and part of it was poor job performance and we cited the case of  tyranny was one of the reasons which made a difference in determining whether or not to discriminate the plaintiff it doesn't matter if it the defendant had fifty other reasons as long as one of them was a retaliation for that that p h thirty two and that's the case of brown versus city of detroit that's four seventy eight mission five eighty nine that key states specifically that the whistleblower protection act protects employees who report misconduct as part of their job duties judge mirrored had asked the question if somebody reports misconduct and is in charge of that activity surely you're not protected against being fired if you say there was a theft from the office and i stole the money well i don't know that that particular factual context has come up in the co but hypothetically we need brown case actually kind of touched on somewhat similar facts in that case group briefly gary brown was the deputy chief of police for the detroit police department he reported on misconduct within the detroit police department and also former mayor kwame kilpatrick's executive protection unit which was comprised of police officers he made that report to the police chief and also the mayor's office and in fact in that case the michigan supreme court found that that reporting of the deputy chief to not only his own police chief about misconduct within the police department but also to the mayor's office and in the mirror was implicated in the misconduct was protected activity under the there was a claim for violation of forty two u s c nine hundred three first amendment the first amendment in the federal false claims act claims were dismissed by the district court on summary judgment so the only claims that are claims the federal claims are now out of the case that is correct your honor we have two parties who are not diverse that is correct your honor we brought this appeal before this court because of the fact that the district court rendered a ruling on these michigan cases know well implicitly your honor i mean there was no explicit mention of that in the district court's opinion but just did well i mean the case did go through the entire discovery process and in fact discovery was extended and then the district court did make a ruling and i i do see my time is i just want to very briefly just touch on the decision not to grant the motion to amend the complaint that's a new topic that