extensive discussion as to why the particular findings are contrary to the manifest where the evidence i would like to turn the analysis on its head and start with the second prong which today i would order the circuit court has given us a square answer to you and that is are the penalties working at the brothers in question there were no employment records submitted there was no proof of payment submitted there was no ten ninety nine forms have been in evidence and most all you have is superintendent holmes claiming that these various individuals w work i'm sorry how many nights do you have to be up there to be working in front of the bar or roast well that's a fair question but if you actually reviewing the record investigator schroeder on july twenty fifth two thousand and eight sits at the bar at one of the for thirty minutes and he sees he claims to have seen john berger and francisco urania standing at the base of a staircase checking i d s however he doesn't ask anybody if they're working there he doesn't speak to the individual to ask them if they're working they're ready children are stating these individuals were working for me there's no paperwork as you indicate there's no statements from mr vanier mr mr urania and mr davis that they were working there there's no admissions at most you have one basically because all sort a you know two way street there the bar restaurants were doing this probably a good amount of money that they would have to do without having to require you know any if for work it was kind of like  you know two way thing here and then you have all this saying they were all you know working for him and they would be assigned to whenever but of course needed of course tempers found incredible number one and number two if revealing his record the decision is it seems like the board is trying to have it both ways in some respects that well on the face of the decision they say he's not credible without explanation but then they do seem to rely on him to issue disappoint or to support the discipline and some of these cases but w were there on the scene of one of the establishments responding to a fight and if they were wearing shirts that said police but again that's not evidence i've been employing that relationship for answering any big could have been there again as patrons and then in their sasso said that he didn't do any of the recruiting he didn't do any of the scheduling that was all done by this person to not go we didn't testify the board in fact i'd like to switch gears your friend may have the only individual as i recall but holmes says he actually worked  particular night and then he claims davis says he's working in an off duty detail that's in the record that doesn't prove he's working at san marcos it doesn't prove he's working security at san marcos for all we know he could be working as part of an external operations with the sheriff's office where he says i'm working an off duty tale again there's nothing in the record that says for example davis told me he's working here at san marcos that's not in the record and that's insufficient wasn't something that could even get into the record but i would represent that that did subsequently happen so so he got sixty days and it's temporary demotion right at sixty and the other two well we know the three not i know that's that's that's how i'm getting that that requirement i'm just saying that based upon the administrative review case why they need to provide enough of an explanation to assure the chorus that they're not acting arbitrarily p have holmes who was ever admitted to overseeing the entire operation he gets a sixty day suspension then we have multiple testimony from investigator schilling from holmes that the standard disappointing for a second play violation is three to five days there's no that's not it numerous times in the record so we submit if the standard disappointed three to five days the host gets a sixty day suspension that's what's the explanation for three piece individuals maybe some related to three to five days forty three to five days you know i would like you can relate three to five days to the forty to forty five days and say you know we've got testimony that that three to five days is is the ordinary job and the performance of job duties as a corrections officer there was no nexis prove that but the millport between working the second jobs on their own time and how that impacts their abilit it's part of the deal of the job but there was another dimension here these officers assuming that they were working they did so through the condemnation of their superintendent homes he was their supervisor  appendix to the reply brief the collective bargaining agreement covering questions officers in the sheriff's general orders applying to corrections officers incorporate you post so whether you really think that that's a sufficient argument to say that their peace officers because they are getting officers and there's nothing about their job functions in the record and so i don't think that this court has an evidentiary basis to rule one way or the other on that issue in this case they were like they came county case there was there was there was a sufficient record to say they don't  please the court i'll try to be proof first of all in response to your question justice riccardi comparing the types of a punishment that has been rendered for not only the secondary employment issue but also for not being truthful i turn your attention to dark versus mc well sado there was a decision issued by the  nineteenth in the year they ordered him suspended from a ninety days and he too was accused of making misstatements to professional regulations so that we do know that in the act case that we don't know all of the circumstances obviously but given those very similar fasts and given that particularly with respect to my client there's nothing else it is to give any teeth whatsoever to administrative review you must do so in this case you must review the specific allegations against my client and against each of the other appellants look to the charges and determine whether or not the mayor had puir whether there were sufficient findings to support the charges against the appellant's now you're talking about the manifest weight or the finding that these general orders were all violated by all these people or are you asking us to direct our focus to the penalty that was imposed for your client not a council address the penalty issue i'm not going to talk about that other than to try your attention to that dark case because it you know the circumstances appear to and absolutely and i set forth in my reply brief the specific charges that were brought against him and the burden was on the proponent proof of the essential elements of the charges now you made some suggestion that you know there's prove an essential element of the charge and the act that is inappropriate obviously circumstantial evidence can be considered but in this case when you only have one fact and we was for approximately thirty minutes sitting in front of the stairway that went to an upstairs room we don't know what was going on upstairs whether it was a private party whether it was a family gathering absolutely no evidence whatsoever he was sitting there and just checking i d s that's it that's the only that's the only fact that we can rely on here didn't tie him to this at all holds i think did state they had he did name him but didn't he didn't it's unclear from the record that i you know what it says is holmes but i don't believe he specifically identified my client he also testified the that he didn't keep any records he didn't have any iraqi statements or or anything actually tying my client to get well employment that he relied on this other person you know code to to hire the officers now the record we don't have anything for co stating they had my client was working and this this is really critical the only thing the only thing that justifies his terminations is the frankly don't know why and i said in my grief it would be a different circumstance if he had been asked those questions and it had been shown that the lie but here it absolutely there was to suggest that this facility had up stairs private parties to the second floor all the time there is nothing like that in the record the point is there's nothing in the record to suggest anything other than he was sitting there and you are there to actually evidence record to show it was understand your position but there's nothing in the record that would suggest an inference like you're making who has the burden of proof they might not get your ear i agree with you there but they are there was lots of evidence of power what was going on in terms of is it and i respectfully disagree maybe you've made a very good point though that the amount of evidence that here is is about slim as it gets because the question he was asked was were you working that night and he said no he said there was really very little there was there was very little in certainly not i couldn't find it in the record will quickly quickly enough but i my a recollection was that he did not specific that no yes no absolutely and it the only credibility determination the bird actually made was that holmes wasn't credible now this is part of the problem that we haven't really discuss hope who was the mainstream mind of various who clearly and was performing i believe illegal work and he's he's working he's getting money my client who said that there is a lot of evidence this is your honor stated suggesting that he was working but i said there was evidence regarding the individuals and when you put it all together there is evidence to support and it finds regarding each one of these individuals as to whether or not they're working out the degree differs with each princess like the degree difference to each person of consideration some sort of money some sort of benefit did he will that are did he get any money he this was up from my client this was one occasion for half an hour so what was he doing also think that the most important factor in reviewing the discipline is looking at which officers cooperated with the office of professional review which i'm going to refer to as over here this morning and which officers voluntarily gave statements and acknowledged their participation in this unauthorized secondary employment and which officers repeatedly lied or provided false statements so p r regarding their bollman and the three individuals who were terminated or three that chose not to participate and in fact chose to provide false statements day there has been discussion this morning about three to four days i believe it was or three to five days for the commission of secondary employment on our secondary plane and that is not the testimony that was on the record let's just talk about you were in effect is there any evidence other than the one evening with him at this restaurant location well the only thing that we've discussed like twenty fifth two thousand and eight in which we've already else is in the picture of these looking at something is that what you mean yes that is all right that's what i will what about the ninety day suspension for this other individual by this year from here who was also found guilty of not being truthful before the court or for the one incident where he says i wasn't working that night if it was so significant that it interfered with the investigation i was holmes given the sixty day suspension and the other individuals five well no to a question about whether you were looking at wattle hire or whatever location it was on a given day that is yes or no and i would argue that if so he should be by after a ten year career without  occurred on that tape question i believe it was obvious when to two thousand and seven support it what investigator showing had already determined from his investigation that both of these individuals were working security at this location i were the sanctions arbitrary creations and i think that through all of the arguments of this morning there has been demonstration of ample evidence on the record for american findings and a thorough analysis of why this sanctions were issued and why the determination for me relevant to case of of mr roman and we also indicate that if there is or it doesn't die i want to move on and there was also some questioning about them how can we draw an inference from the record that  your brain and foreigner were there for a private party where we submit how can we drop an inference from the record that they were there working as opposed to being a patron as opposed to helping out of the local church charity event again it doesn't come down to documentation it comes down to for says i s s two individuals there on one night for thirty minutes there were he doesn't testify that they were in uniform that there weren't security shirts can we draw an inference from that that there was an employment relationship and we have the same problem respect knowing brinks they basically just at one of the establishments he just says i'm working in an off duty detail but he doesn't say i'm working in san marcos he doesn't say he's working at a bar he again he could have been working for the sheriff's office in an off duty operation according to this state if the record testified but it is the surest earth summit burden to prove by preponderance of the evidence that these individuals were working and for davis to state to sister officer pres i'm working off the e tail that proves nothing about whether or not he's working in one of  that he was working actually hands officer to retreat is the one officer that holmes sat as i personally worked with dilute at these bars on several occasions i believe he's the only officer that holmes state point would indicate you know there was no consideration in this case for the fact that john broder had a six year career with the sheriff's office and there is no proof of prior discipline serene had a nine year career no proof of prayer discipline davis had an eight