cast their vote to terminate the contract which was terminable at will with or without cause for any reason whatsoever have been found to have absolute immunity the district court specifically found that they made a legislative decision based upon the budgetary needs of the city to switch from an outside i t vendor to go in house with services however in the peel here is that the mayor who sent the council's decision to the vendor has been denied qualified immunity as well as the city administrator mr pacelli and the water utility manager mr st peter who participated in the close session before the common cold zone expressed their viewpoints on whether or not the contract should be terminated have all been denied qualified immunity how is this case different from the amber case well i think it's different for a couple reasons first of all the younger case only talks about as a threshold matter whether an independent contractor may have the protections of the first amendment but it does not deal with the situ and here where we have a contract that's terminable for any reason whatsoever where the underlying expression from mr mcauliffe who is conscious is owner is basically about an internal feud that she's having with her own employee as to whether or not he's surveilling her e mails and communications and the case does not involve the situation here where these officials were not her employer  the governing body is the city council these fellows did not make the decision to terminate the contract of the the irony in the plaintiff's case is that they're basically trying to use their own first amendment rights to suppress through their claims of liability the voices of these three non elected and non decision makers in terms of what they thought about the i'm going to i have a question about think you make a good appropriate and correct observation your honor because the court in on bare first of all said that independent contractors do not enjoy the same level of protection and that there must be a deferential wain of the government's legitimate interest she said on the computer next to him and showed him how the server worked and things like that i think her expressions are no different than the individual in our study for which the supreme court found that there was no first amendment expression i think you have the further issue in this case that the decision making here involves the council making the decision to terminate the contract the district court found that the activity here challenge was basically the same activity as what occurred in the classic us supreme court decision of of bogun and there's no supreme court nor seventh circuit precedent that has said that the expression of not employers non decision makers correct correct but when she also speaking out against the city to we have that's what she alleges but you have to look at the actual evidence and when you look at the evidence in this case i would i would urge you to look at record seventy eight and some of the stipulated facts one forty five one forty seven one forty eight and one fifty three to one fifty four there's not much there that actually triggers some of the some of the first amendment case law that they rely upon they rely heavily upon these cases involving mere threats but that case law is really problematic because first of all none of those cases involve the situation here where we have a contract contracted party whose contract can be terminated for any reason whatsoever you know i have to tell you i am extremely well aware that the contracts were terminable by either party at any time for any reason but surely you legalize that any reason doesn't include an unlawful reason you're not intending to imply that the city i hope you're not intending to that the city could terminate the contract because they did not like what the color of said about the charities conspiracy with and we're not going that far out of the issue before this court is qualified usually seem to the issue before this court is the qualified immunity of these three nine decision makers the nine elected officials who express their own viewpoints that the contract could be terminated they express their own reasons for why they thought that the contract should be terminated there was no case law in this circuit that required the city administrator and the mayor in the water utility manager to stand silent in cases indicate that the court should take approach a cautious roache when you have a nine decision maker not elected official who's expressing their own viewpoints and her allegations about what she thought m he didn't like what she was saying about that potentially criminal wrongdoing of his friend kirkman and he decided to retaliate to retaliate by bringing about the terminations of her contract but he's not the one who can do that your honor that the city council and the older persons are the only ones under the contract who could vote to the answer is yes it's perfectly straightforward you can't be meaning to deny all of those cases that doctrine has been recognized by the supreme court well your honor that theory has not been addressed in the briefing ground of qualified immunity i think we need to go to the second argument the second claim in this case the fourth amendment claim i have a factual question are you c tending that the contract allowed the city to look at the contents of the plaintiff's e mails the contract in this case your honor also involves the relationship where the answer to my question is yes or no and then you can explain why well there is provision in the contrail answer to my question is yes or no are you contending that there is a clause in the contract allowing them to access the contents of the emails i don't know if it's expressively i guess the answer is no your honor i do not believe there is a contract term that is so stated there is a contract term however that does provide that that the all of the property and all of the services in programming that they were doing belonged making this contention then you're not making it and it's not before us on appeal that means that the contention you are making is that this was a private search on that question the supreme court's opinion in johnson against jones we can't review actual disputes we can't review records that are factually too uncertain to reach a decision you have to wait for the final judgment clark and white versus jurors go specifically a footnote five i'm asking you to discuss johnson against jones it's a particular decision of the supreme court i believe that that case and other cases still allow this court to look at stipulated facts uncontested facts and the like and when we look at the stipulated facts of the admitted facts in this case the district cour analysis on the qualified immunity under the fourth amendment was too quick in its conclusions and it flipped the burden on the city do you in fact have anything to say about against jones i have not i have i cannot bring responsibility to be prepared to discuss why the court of appeals can decide this without waiting for a final decision in the district court and i did look at that we just heard this issue on bond a few months ago and your briefs don't discuss that either our initial brief was filed a year ago your honor i'm not aware of the current decision of course of qualified if qualified immunity is not re now by that point we get to trial the whole purposes of the protection of the qualified immunity is gone and the court has to look at the factual record at that time i did review some of the case law in the circuit involving jurisdiction some of these cases also said that this that you may look at undisputed facts in the record stipulated facts and claims factual assertions i for those propositions i point this court to jones versus clarke and white versus go footnote five going back to your earlier question about the cat's paw your honor i think what is different and again to those cases are discussed here but what is different is you may have one employee telling a supervisor who has the power to suspend or terminate another employee but here these three officials did not have the power to terminate the contract they could only go and express their opinions whether good bad or indifferent if they were critical of the investigation if they were skeptical of miss mccall of comments what case law told them under the first amendment that they of another's wrongful conduct not enough to create life felicity and what do we make of st peter's admission that the germination came about because mcauliffe was putting the city in a bad light it's pretty direct evidence in st peter was facilitating an action with a wrongful notice isn't that they were they were they were critical of the underlying investigation sure but what again what case law told them that they couldn't express those opinions they're not the ones who can make the decision and in fact when you look at last year's decision from the u s supreme court in ziegler versus abbassi involving the nine one one detainees there's an interesting discussion in that case about the intersection between qualified immunity and the intro corporate conspiracy doctrine which was raised in this case these three officials we expect our officials who are working together height you know look a department heads we expect them to no i just discovered this case this morning euro you can file it even on the day and i think we have your position counsel thank you mr if you see independent contractors joslyn like it applies to employees correct that of course is what led to my question if contractors are treated just like employees then why are contractors subject to the police department knows to look at the destruction of public records the improper the improper housing of pleased e mails on city servers and then also whether there was any  thousand and fourteen came in and directly started threatening her contract for her participation in that investigation so this magistrate intercompany dispute further to get back into the history of the matter the fa is the city informed this mccall off in september of two thousand and thirteen five months be for that speech before the threats were made that he intended to hire kirkman to be the director of the for the city so the record shows he would through a series of events to go outside normal city protocol to create a director of i t position to put himself in charge of the hiring process outside of normal city procedures and ultimately hired him in may of two thousand weren't protected for example correct it was password protected and it is under the contract there are to be afforded dedicated data lines so they were in fact stored on the city server but it was  separate from the city systems itself so they would be subject to open records requests and other aspects of the nature of the i t business that conscious was under was such that they were operating on the city systems at all times any of cases it's no different in the us mail if i put an envelope in the mail to get hammered by government officials get stored in a government building go away what what what what a person told postal service i have to do with this did you have any cases the touch more specifically on emails turn that this physical mail going from one place to another carrier and u s b forester to the ninth circuit determined that physical the privacy interests of physical mail in the privacy interests of e mail there's also u s b worship act but there is an expectation of privacy in emails that's a sixth circuit case there's a u s b hamilton fourth circuit e mails which determine that emails are in fact confidential cid you know we're where those emails on government why is this different because the plaintiff in this case is an independent contractor with a contract that establish an expectation of privacy within those emails i dedicated that  expectation of privacy i pay i ask you your adversary whether there was a concrete claim of any waiver in a contract and the answer seems to be no the parallel question for you is whether there's anything in the contract that specifies that these would be held confidential there are some such statutes there's a statute for example specifying the personal data held on i r s computers is private confidential can't be shared or disclosed even with the president was there anything like that in this country to correct as a contractor karata for dedicated data lines for condit and ask whether it provided for dedicated data lines i asked whether it provided for confidentiality of the information but it did not specifically provide for confidentiality information but it also the not stated there is no reasonable expectation of privacy within those e mails the going back to the analysis and not to do t v more the question was whether it employee a public employee using a government phone line had an expectation of privacy in the following line even though it was on the government's electronic systems in that case the seventh circuit found that yes even though you're on a government phone line can still apply it's an electronic system all by the government just an expectation of privacy in the use of the phone in that case the court also deny qualified immunity on the basis that the state of the law or a cat cell which dealt with a public or with a private phone at the government fall that in that case that was enough  to construct an internal id system and then the women aid the plaintiffs would be lawful right so he would have to believe that a form of course we come back to the contract question if that was a breach of contract either a declaration of privacy in the contract or some prohibition then there's a pretty strong position if it's not i don't see how it gets stronger being restated as a constitutional claim how much privacy there is in something held on public computers would normally be the subject of an agreement between the parties sure but under narducci there's no contract as well and they still found even though it's on a government system the court found that there so an expectation of privacy within the workplace for employe conversation with kirkman about survey only mcauliffe emails not only that he said he than acquiesce to the searches itself when you hired him to be the director of i t the setting the city that benefited by and by threatening to cough if that she were to file a criminal action in this case that it would lead to terminations or a contract and again you rewarded kirkman for this surveillance by giving him the job  director of i t so there's a lot to tied together with the conspiracy that it was taking place going back into the first amendment claim i believe example case law that supports these types speech being and speech public concern this valentino versus village of the south chicago heights where employees complained of public prosecutor who recommended the filing of a criminal complaint and was fired when he persisted in that recommendation sure but to to make a threat to keep somebody from actually going and filing the complaint itself that's sadly what happened in car city against solace you can't distinguish that case by pointing to something that was involved in that case it's just a rule it sure interest destruction public records and you participate in that initial investigation the miskin is investigation is very early deriving someone enough to make out a claim for retaliation or are you simply claiming that this was one of many things were saying just a combination of all things so it was virtually deriding and the threats that judge easterbrook unfairly the andrews you  for terminations to cut off point this access to the computer systems prior to the meeting for the terminations after participating in the close session meetings itself to see the terminations itself of the caps pause analyses would apply in that respect and they had stated we asked you if they do you very much counsel thank you the case will be taken under advisement the court will take a brief recess before calling the court