and judge seiler i know you wrote that opinion and the there's much to be analyzed between the facts in this case in that case but the last the same as when you wrote it in i believe november that nothing's changed in the law and i don't expect it to be it seems like we are pretty well settled now in this first amendment here in the law but we're here because one man robert tom pows who happened to be the fire chief but also was a resident of the city of taylor and a citizen in the city of taylor spoke to the city council and the press as a citizen about many various serious firefighter and citizen issues the district court unfortunately did not do much analysis in is what do you base that on i base it on you don't know if i may you can't just say oh a fire chief has this responsibility every fire chief has this responsibility in this particular case under this particular mayor mr tempo's had little authority to speak as a fire chief he was told specifically he could not speak to the city council that all things were to go before the mayor he was told specifically as a fire chief he could not talk to the press so when he talked to the city council and it was only in open session to the end of the city council meetings and when he spoke to the press while he was identified at the foot as a fire chief he did not identify himself as the fire chief in uniform some of time on tape he was in uniform i had looked at those yesterday and you're right but it was someone so i mean isn't there a little bit of a problem with saying he was speaking as a private citizen when he shows up in his uniform to speak if he purposely went there in his uniform in order to show himself as the fire chief i suppose that argument could be made if he happens to have his clothes on from that from the work that day then an argument another argument can be made we don't have anything in the record about that judge but i certainly can see your point but the fact of the matter is he was this mayor told him he could not do as a fire chief what he then did as a citizen  this is not this was not a usual type of administration well i mean i don't know well aren't there a lot of cases where the the legal basis you know we get into a category one and so on but  you know if you're in some little town in your town code creates a fire chief lot of times the mayor is going to tell him nevertheless shut up let me handle this but then let your job become your job becomes you can't speak as  it could be but that's not what the issue is right before the court at this point factors in factors in some of our cases we've said you know that could be a big factor when you're looking at whether there's protected speech in the conduct is also protected there is one case from last july that came down i believe judge strong wrote it and in that case there was a question but that went to the causation issue i  here the i mean it is basically a question of fact but then it becomes a question of law because the courts have held that it's a question of law as to whether or not one is speaking as a citizen or not but if this is in that case mr steinberg i picked up the phone and called three council members and said i'm two of them he told them i'm calling as a citizen the other one he didn't say what he was calling as however it was clear that people knew he was a fire somebody working in the fire department because the mayor after became aware of some phone calls being made contacted the fire chief and said you've got somebody in your department making these calls find out who it is and first mr stein boss said not me but then he admitted that it was him so he judged actually right he didn't ever uniform on time but he was known as being a member of the fire department but he also seemed to me in that case at least he pretty clearly did what he could to make it clear that he was speaking as a private citizen and my client just in his head that he was private says well in my client said in one of the recordings from the city council meeting that i'm also a citizen and a resident in the city and this is not the type of service that i came here for or that should be given to the citizens here also do you mean i'm also in addition to being a fire chief oh no he was standing next to a citizen who was talking at that time i mean that could be open to interpretation but as i saw it he had a man standing right here who was making to me shoes known and so he the other thing is we don't know at the in the press he doesn't say i'm the fire chief they do identify him as the fire chief but you know it's not hard to figure out in the city who the fire chief is just like it's not hard to fire find out who the fire captain is in the in the us time bookcase but these there were serious serious concerns and defendant say that my client was talking to a trying to challenge on the budget that he was talking specifically about public and firefighter safety and everything that you you can see in the tapes or you read in the press that is where he was  directed toward so if you look at the content of the speech it is certainly a matter of political social or other concern to the community and then if you go to the balancing test between the interests of the right to speak believe it's a defendant burden to show what the disruption was but that's my term it's not a legal term disruption was to the city or how his words affected either his job or the operation of the department and in fact there is no proof or evidence that that happened at all he was speaking on public safety and he continued to do his job for a period of time just like in the steinbach case and he there was no disruption to city services and  how do you get around that because there is absolutely nothing that the government can articulate as to why they're they have any what their interest is that all in him not talking about safety of firefighters and the public i mean that hinges on your saying though that he didn't have the fire chief wasn't in either policy making or confidential position at all and he was i mean and that's what the mayor he was and he couldn't make it he could only follow the union country now he could fire somebody but then the union contract he's got to follow the union contract and they can challenge but he can't set our to he couldn't set overtime he couldn't do any of that that under the collective bargaining agreement and then the mayor comes in and has told him that he can't he does he doesn't does anything to do with the budget expect us bending up to two thousand dollars is no input on it he can even go out and try to raise money to buy the firefighters suit so these fire officers don't i mean that's just the description  behalf of the defendants in this case my excuse my voice here and have a little bit of just cold so hopefully you can understand what i'm saying today tom post was the fire chief of a major city department he had bro discretion latitude in terms of overseeing the fire department terms of ensuring adequate fire protection advanced life support protection reporting to the mayor under a plate of scenario if if everything had to run through the mayor of council then only the highest executive officer would ever fall under the all right rule and that's just not the case in and we put you know dozens of positions in our brief similar positions where the court is determined that they in fact repulse the makers of the issue of the council meetings and i've been to many of these meetings and they go on forever and ever as you can imagine all the department heads are required to be there and so he was there as a requirement as the fire chief and no he didn't identify himself as a fire chief because as somebody asked he was wearing the uniform always attended indiana for correct absolutely just like the police went to him didn't ask him just because he lived down on main street the newspaper went to him because he was the fire chief they wanted his opinion about these budget cuts so clearly that the this this is before  on appeal of summary judgment right correct are the facts with regard to his position in dispute at this point no i don't believe so he he testified under oath that the  interactive tori's please explain your job did his responsibilities he said see the job description i took his deposition i asked him i went through these yes these are my job duties and responsibilities the mayor now deceased testified under oath that these were his captain he was the court knows he obviously he was calling off hours off duties when he even identified himself as a as a firefighter kept saying i'm a citizen i have concerns about how these money's being spent with respect to the duties things that your adversaries told us about you know how the mayor controlled him and so on are those in dispute or are they in the record or both i bet in terms of what that that he said that  you know you're not supposed to talk to the press you're not supposed to do certain things you can't spend more than you know x a small amount of money the things that she was telling us indicated that his power and authority was very limited well in terms of speaking to the press speaking to the media there's a chain of command so certainly not asking whether it's right or wrong that he did it i'm saying is there a dispute that that's what the mayor had told  is it not in the record that that's what i believe there was testimony from miss bannister it said something to the effect of you should you need to stop saying those kinds of things because that's not really that that's not the position of the mayor that that's not the policy of the mayor the mayor is trying to implement a budget city was in the whole five million dollars it had an agreement with the department of treasury to come out of that deficit in a way to do it is to cut you know cities can't raise they can't raise taxes so they have to cut revenue and so as part of that they were laying off firefighters they're laying off staff in fact miss bannister's position was ultimately eliminated the fire chiefs position was ultimately taken out of the budget because the city wasn't performing advanced life support services anymore they were just being firefighters and mr tom poston knew that when he took the job he took the job knowing that when he was brought in to transition ala services to a private company that's why they that that's why he had that position and once that accomplished in that budget year he was taken out of that position so you know i believe that i think does that answer question or i think ok under what category and the  rose against stevens i think he would fall under one two or three yes certainly i mean it certainly confidential i mean he's got information you know scotians with the mayor in terms of policy things and how they're going to address these issues certainly he had discretion  number four deals with political appointments i don't believe that one would necessarily apply but the other three i believe would want to play the other case that is cited by the plaintive is the  decision that case again dealt with rank and file firefighters they actually came to a council meeting but again they they were they were the lower level firefighters they were not in any any supervisory position they were not in uniform they did not identify themselves as firefighters in so again i think that case is clearly distinguishable this was a very difficult circumstance for the mayor to deal with and to have his one of his cabinet level guys stand up at a meeting and say everything this guy wants to do is going to hurt people it's wrong things of that nature you just can't have it you can't have it and it was very destructive cause all kinds of problems and quite frankly the complain about safety but it's not fair for the chief to do that well first of all the fire chief has to get past the brand exception as a policy maker so he doesn't he does that that clearly applies here in terms of what the rank and file firefighters you'd have to look at the at the at the circumstances whether or not you know there are protected speech if it was outweighs the the orderly transition or or the orderly orderly operation of the fire department you'd have to look at that circumstance but we don't even get to that sort of good circumstance in fact the lower court didn't get there because she determined that he was a policymaker and real riding therefore he was not to protection  also if you look at our setting as well in terms of the fact that he was speaking and matters within his job duties and responsibilities again the judge parker the lower court didn't get to that but if if applied it  dispositive and even with with the lane tightening or clarification of your city he a key was speaking about issues within his he was furthering issues under his guys and supervision he wasn't talking about the parks direct the partment or i think we've covered what i want to cover if there's any specific questions ok thank you very much focus you have four minutes  think i would submit to the court pages six through ten of our brief our main brief has quote has cites to three depositions of amanda banus robert tempo's and former mayor regarding the restrictions on mr temple says duties and we've laid that out mr tom post did not take on the mayor or the mayor's budget he informed the  public looking at those tapes of what he said at city council he says things like we need to work together this is not a blame game or in this all together those are the types of things he says and then he describes the condition of the  protective uniforms of the officers and how dangerous they are because they were out of date and he doesn't lay blame anywhere so this is not a disloyalty issue to the mayor a lame in blame on the mayor i don't believe and i didn't anything in the in the briefs to this court i don't believe there was anything in the record about any breaux sponsibility of the fire chief or the chief of police to attend any meetings and uniforms i don't remember that being in the record and i don't recall council meetings in the one council meeting he was asked to come up by the council chair the but the other two times he just walked up during an open meeting times as being terribly bright and then we've given the sites and the c d s to the court for that and the job duties and responsibilities list mr tom posts in his deposition talked about how those did not all impact on him and in his affidavit he described how that was something other chiefs and probably should have been his job but it wasn't and amanda banus who was his direct supervisor testified that she never talked to him about his responsibilities just talk to him about what he could not do as opposed to what he  responsibilities were again i think it's important to look at the actuality of the of of here what it was here as opposed to what we perceive a fire chief to duties and responsibilities were but rather the limited ones that he had here in what his speech was really about it was not contrary to the mayor's positions in any way it was to inform the public on the problems of the safety equipment and the slow response time that unfortunately we