[00:00:00] Speaker 00:
Please the court.

[00:00:02] Speaker 00:
My name is Deanne Kaspersen and I'm here on behalf of the Pellent Rodney Birch.

[00:00:07] Speaker 00:
May I please reserve four minutes for rebuttal?

[00:00:09] Speaker 00:
Thank you.

[00:00:11] Speaker 00:
In this case, the district court granted some re-judgment.

[00:00:15] Speaker 00:
And it did so in violation of the summary judgment standards.

[00:00:20] Speaker 00:
Probably these words that all of us have said a million times, genuine issues of material fact, viewing the lights in the light, or viewing the evidence in the light of the non-moving party.

[00:00:32] Speaker 04:
Well, but I don't know, counsel.

[00:00:34] Speaker 04:
I mean, it doesn't seem like there's really much dispute about the facts.

[00:00:38] Speaker 04:
It seems like the dispute is what relevance do those facts have under

[00:00:43] Speaker 04:
pre-speech law and specifically retaliation claims?

[00:00:48] Speaker 00:
Well, I think when you look actually at what the court did, and probably the most egregious area, maybe I start there, if you look at what the court found on the third pickering factor, which is, is there, was the adverse action motivated by the speech?

[00:01:11] Speaker 00:
And in that case, what we have, of course, if you will remember the facts, is that Mr. Birch wanted a city governance that we would have a city administrator, because he was concerned about the mayor's performance.

[00:01:26] Speaker 00:
And he was advocating for that.

[00:01:28] Speaker 00:
And he was doing so in discussions, not with the whole council, but just with certain members of the council, and then he addressed it with the mayor as well.

[00:01:38] Speaker 00:
And then after the mayor rejected that, he decided to support the opposing candidate, Dan Heiner, who was also a council member too.

[00:01:46] Speaker 04:
But none of that's disputed.

[00:01:48] Speaker 00:
None of that is, well, none of that is really disputed.

[00:01:53] Speaker 00:
Where it gets to what the question was, what motivated these adverse actions?

[00:01:58] Speaker 04:
Right, but to me that motivation

[00:02:00] Speaker 04:
Is motivation a fact?

[00:02:02] Speaker 04:
I mean, I guess you're pitching motivation as a factual issue.

[00:02:06] Speaker 04:
It seems to me motivation is we have these facts set and then the judge draws the inference of what was that the motivation for the speech.

[00:02:15] Speaker 00:
Well, if you look back to that factor in Eng, it's specifically a question of fact.

[00:02:23] Speaker 00:
And the court goes forward and says, oh, it wasn't the support of Heiner that motivated these adverse actions.

[00:02:31] Speaker 00:
It was the June 1st memo where he criticized the mayor, and that's what did it.

[00:02:38] Speaker 00:
But that is a jury question.

[00:02:40] Speaker 00:
That is not for the court to decide.

[00:02:42] Speaker 00:
And when you look at the decision, we have... Now that's the most egregious.

[00:02:46] Speaker 00:
I don't have any other fact finding that I can point out to you other than that one.

[00:02:51] Speaker 01:
But what we do have is throughout the opinion, these... But it seems to me, counsel, that the district judge assumes an adverse employment action under the thing factor and then moves on.

[00:03:07] Speaker 01:
The district court assumed it, gave it to you, an adverse employment action, and even assumed a substantial motivating factor.

[00:03:17] Speaker 01:
They said the sign was not a substantial motivating factor, but so what we're really looking at is they assume that under the factor and then move to the fourth factor suggesting that the state's legitimate administrative interests outweigh the First Amendment rights.

[00:03:37] Speaker 01:
That's what I thought the court did.

[00:03:40] Speaker 00:
Well, the court does get to the fourth factor, which... I mean, it goes so far as to say

[00:03:48] Speaker 01:
The court, the balance of interest test justifies the action taken by the city of Chubbuck.

[00:03:54] Speaker 01:
That's what the court says.

[00:03:55] Speaker 01:
And that's a legal question.

[00:03:57] Speaker 01:
Well, that part, that question... And if that's the way it is, then it outweighs the adverse employment action under the test.

[00:04:07] Speaker 00:
It does what to the adverse employment action?

[00:04:10] Speaker 01:
Outweighs the adverse employment action.

[00:04:13] Speaker 00:
Well, it might.

[00:04:15] Speaker 01:
I mean, it can.

[00:04:16] Speaker 01:
That's what you're doing.

[00:04:17] Speaker 01:
That's how you're doing it when you apply the retaliation factors.

[00:04:23] Speaker 01:
and you get to the third NG factor, you have, you've still got the burden of proof on the third NG factor, and you have it on the, as we turn to the fourth NG factor, then the government's got the burden of proof, and the court looked at the fourth and a legal question was addressed, and the court says,

[00:04:43] Speaker 01:
The balance of interest test justified the action taken by the city of Czech.

[00:04:48] Speaker 01:
Well, it's a mixed question of laws.

[00:04:50] Speaker 01:
That's what's mixed about it.

[00:04:51] Speaker 00:
Because the underlying issue

[00:04:54] Speaker 01:
I mean, if you will, the fact question is that question that would come out under the third ink factor, adverse employment action.

[00:05:06] Speaker 01:
And they gave that to you.

[00:05:08] Speaker 01:
I mean, they didn't go as far as to say the sign was, but they said, so what?

[00:05:13] Speaker 01:
The balance of interest justified the action taken.

[00:05:17] Speaker 01:
regardless of what the sign did.

[00:05:19] Speaker 01:
That's what the district court said.

[00:05:21] Speaker 00:
But even if you look at that fourth factor that basically says, number one, it's the Pickering Balancing Test is what we're talking about.

[00:05:28] Speaker 00:
I agree.

[00:05:29] Speaker 00:
And defendant made no argument with regard to that and yet the court went ahead and said that they had applied that.

[00:05:36] Speaker 00:
But here's the fact that just gets me on that.

[00:05:38] Speaker 00:
The city council already decided as to whether he should be fired or not.

[00:05:44] Speaker 00:
The mayor took that same June 1st letter and he testified that he gave that to the city council and used it to try to get Birch fired and the city council rejected it.

[00:05:56] Speaker 00:
So how can they even argue

[00:05:59] Speaker 00:
that this was so disruptive that the balancing of the factors required any adverse employment action that happened when the City Council rejected it.

[00:06:12] Speaker 01:
I would like to step back if I could.

[00:06:14] Speaker 01:
I looked at your complaint.

[00:06:17] Speaker 01:
First of all, we have to have a protected action.

[00:06:21] Speaker 01:
And the protected action in any one of these cases is

[00:06:25] Speaker 01:
If we look very seriously at the statute, the protection action is the fact of saying something about it, of doing, of saying.

[00:06:37] Speaker 01:
So I looked at your complaint.

[00:06:38] Speaker 01:
What are the protective actions you're talking about here?

[00:06:43] Speaker 01:
We have expressed wasteful actions occurring in the city at the city council meetings.

[00:06:50] Speaker 01:
We have placed a sign in his yard to support another candidate for mayor.

[00:06:55] Speaker 01:
We have met with the mayor and expressed concerns and differences, and we have submitted his letter of resignation to explain why he had no choice but to resign.

[00:07:05] Speaker 01:
Those are the four allegations you suggest in the complaint.

[00:07:09] Speaker 01:
It seems to me that other than placing the sign in his yard, every one of those others

[00:07:19] Speaker 01:
Really, your client was not acting outside of his employment definition.

[00:07:29] Speaker 01:
He gave

[00:07:31] Speaker 01:
He expressed the wasteful actions to the city at the city council.

[00:07:35] Speaker 01:
That was to the city council.

[00:07:37] Speaker 01:
He met with the mayor.

[00:07:38] Speaker 01:
That was the mayor.

[00:07:40] Speaker 01:
He submitted the resignation.

[00:07:41] Speaker 01:
He did it as the way it was supposed to be done, as per the city.

[00:07:45] Speaker 01:
So I don't find that he did anything in those other three allegations, which are anything but being right according to his duties.

[00:07:54] Speaker 00:
So he is the public works director, right?

[00:07:57] Speaker 00:
So he's overseeing water, sanitation, those departments within the city.

[00:08:02] Speaker 00:
When he starts proposing the city administrator, that is not something within his duties.

[00:08:09] Speaker 00:
Now, I understand that you're saying, well, but he took that to the mayor.

[00:08:13] Speaker 00:
But he never took that.

[00:08:15] Speaker 01:
Just a minute.

[00:08:15] Speaker 01:
He took it.

[00:08:16] Speaker 01:
First of all, he'd done this before.

[00:08:18] Speaker 01:
He came up with a city plan the same way.

[00:08:22] Speaker 01:
went over and saw his compatriot, and then he takes it to the mayor and the city council.

[00:08:27] Speaker 01:
He does this the same way.

[00:08:30] Speaker 00:
Well, he did the strategic plan, and I want to say that, honestly, he was stepping in and covering for the mayor, because they never had a strategic plan, and the mayor wasn't doing any of this.

[00:08:40] Speaker 01:
That's your good argument, but not every city has a strategic plan.

[00:08:44] Speaker 01:
Sure, they don't.

[00:08:45] Speaker 01:
I mean, maybe Idaho Falls does, but I live down there, and I know there's not many who do.

[00:08:50] Speaker 00:
And Birch is an exceptional employee.

[00:08:52] Speaker 00:
He's very talented and he worked to put this together and he got it approved by the city council because he didn't normally attend city council.

[00:09:00] Speaker 00:
He didn't normally report to them.

[00:09:02] Speaker 00:
That was an exception because he had done so much work on the strategic plan.

[00:09:07] Speaker 00:
But he testified that once he got it done, he turned it over to the mayor because that's who was supposed to see that the city was following that.

[00:09:17] Speaker 02:
But the mayor is his direct

[00:09:19] Speaker 02:
Supervisor, right?

[00:09:21] Speaker 02:
He is.

[00:09:22] Speaker 02:
So if he presents a recommendation that the form of city government be changed from strong mayor to strong administrator, why is that not within the scope of his duties as the Director of Public Works when he has direct reporting responsibility to the mayor?

[00:09:41] Speaker 00:
Well, I think, number one, you've got to see that he's talking to individual city council members first about this idea of a city administrator position, and he doesn't have a duty to report to the city council.

[00:09:55] Speaker 02:
Well, it's a little murkier than that, Ms.

[00:09:57] Speaker 02:
Capserson.

[00:09:59] Speaker 02:
It has to do with the fact that the city council is the otherwise overall approving authority.

[00:10:06] Speaker 02:
They have to approve his hire, and they also have to approve his firing.

[00:10:10] Speaker 02:
They do, but so so there is an there is some oversight by the council of what are their six directors of departments in the city.

[00:10:20] Speaker 00:
Yes.

[00:10:20] Speaker 02:
So he's pretty high up in terms of city government.

[00:10:23] Speaker 00:
He is, but he doesn't have that typical reporting like he doesn't provide input to the city council for the mayor's evaluation.

[00:10:32] Speaker 00:
He's never done any of that.

[00:10:33] Speaker 00:
He doesn't regularly go to city council meetings.

[00:10:35] Speaker 04:
So when he's talking to you, he's doing that with the knowledge of the mayor, right?

[00:10:39] Speaker 04:
I mean, the mayor was blessing this thing.

[00:10:41] Speaker 04:
Go ahead and do this.

[00:10:42] Speaker 00:
Not after.

[00:10:44] Speaker 01:
But your complaint doesn't say that.

[00:10:47] Speaker 01:
Your complaint says that late spring, early summer of 2029, 2021, Birch began communicating in work sessions and city council meetings with the mayor and the city council in good faith.

[00:11:04] Speaker 01:
and the existence of the waste of the public funds and property and the violations.

[00:11:10] Speaker 01:
So the complaint doesn't suggest he's acting outside of his duty.

[00:11:15] Speaker 01:
The complaint suggests he's doing it as he has always done, in good faith, in work sessions and with the City Council.

[00:11:24] Speaker 00:
And that's inaccurate in terms of the meetings.

[00:11:28] Speaker 00:
But it's not a verified complaint.

[00:11:30] Speaker 01:
I understand, but I don't have you in here.

[00:11:33] Speaker 01:
I just read what you write.

[00:11:35] Speaker 00:
No, I understand.

[00:11:37] Speaker 04:
But what the evidence... Your point is the facts are different and this is on summary judgment.

[00:11:41] Speaker 00:
Yes.

[00:11:42] Speaker 00:
Yes.

[00:11:45] Speaker 00:
Wow, okay.

[00:11:47] Speaker 00:
Yeah, I mean, did we inadvertently say meetings instead of having, you know, it wasn't a city council meeting.

[00:11:55] Speaker 00:
It's individual meetings that he's having with certain council members to advocate for this.

[00:12:01] Speaker 01:
What affidavit contradicts this complaint?

[00:12:07] Speaker 01:
Because I look for one.

[00:12:09] Speaker 00:
His testimony in his deposition?

[00:12:12] Speaker 01:
Well, the testimony that he comes up with in order to come up with something to say may suggest that he didn't have the ability to do it, but he also says he worked under the direction of the Mayor and the City Council.

[00:12:27] Speaker 01:
that under the job description he works under the direction of the mayor and the city council.

[00:12:33] Speaker 01:
I mean as I go through and I read all this I have a tough time.

[00:12:37] Speaker 00:
Well you have to read his deposition testimony where he was specifically asked if he ever reported to the city council and other than the strategic plan or if he was invited to come he had no role to go to the city council.

[00:12:50] Speaker 00:
And the struggle I have a little bit with it is when you go back to Garcetti and you look about the public employees don't lose those First Amendment rights just because they work for a governmental employer.

[00:13:04] Speaker 01:
Who do you go to other than city council and reporting to those above you and only making it to those that are in the chain of command, not alleged to be taken outside the workplace.

[00:13:19] Speaker 01:
The speech was within his responsibilities as a city employee.

[00:13:23] Speaker 01:
It did not contravene the directions of his supervisors.

[00:13:27] Speaker 01:
All of that makes it such that it isn't public speech whatsoever.

[00:13:31] Speaker 01:
How are it isn't private speech whatsoever.

[00:13:34] Speaker 00:
How is Birch proposing a city administrator within his role as the public works director?

[00:13:40] Speaker 00:
He's not required to do that.

[00:13:42] Speaker 00:
That is something that the city council or the mayor could do.

[00:13:45] Speaker 00:
That's not within his job descriptions.

[00:13:48] Speaker 00:
It's not listed there anywhere.

[00:13:50] Speaker 00:
He doesn't have any responsibility for the strategic plan.

[00:13:54] Speaker 01:
Well, to be fair, neither is the strategic plan listed in his job duties.

[00:13:59] Speaker 00:
It's not.

[00:13:59] Speaker 00:
And the problem is, is that we don't dispute... And the trouble is, it's Chubbuck.

[00:14:04] Speaker 01:
And it's not necessarily strict, exact, so we have to read between the lines to see what he could do and what he could not do.

[00:14:12] Speaker 01:
And then we have to think, was it made only within his chain of demand?

[00:14:18] Speaker 01:
Was it outside of his workplace?

[00:14:20] Speaker 01:
Was it within his responsibilities?

[00:14:23] Speaker 01:
Did it contravene the direction of the mayor?

[00:14:27] Speaker 01:
None of those work.

[00:14:29] Speaker 00:
He did contravene.

[00:14:30] Speaker 00:
The mayor, after he said he didn't want to do it anymore, one of the council members wrote him an email and said, hey, I intend to send this to the mayor.

[00:14:41] Speaker 00:
Will you give me some input on it?

[00:14:43] Speaker 00:
And he did.

[00:14:45] Speaker 00:
Even though he had told the mayor that he would stop, he did stop advocating for it with the mayor, but he didn't stop advocating for it outside of that.

[00:14:55] Speaker 00:
And that is the struggle that we have is those inferences that should have gone in his favor did not.

[00:15:04] Speaker 00:
I see that my time is up.

[00:15:05] Speaker 00:
Are there any more questions before I come back on rebuttal?

[00:15:08] Speaker 04:
We'll give you a couple of minutes for rebuttal.

[00:15:10] Speaker 04:
Thank you.

[00:15:19] Speaker 03:
May it please the court, counsel.

[00:15:20] Speaker 03:
My name's Sam Angel.

[00:15:21] Speaker 03:
I represent the city of Chubbuck.

[00:15:23] Speaker 03:
As the courts picked up on, this case involves really what was the policy dispute between the public works director and the mayor.

[00:15:31] Speaker 03:
Rodney Burch in 2021 decided that he thought the city of Chubbuck would be better run if they had a city administrator.

[00:15:38] Speaker 03:
And he brought that concern directly to the mayor.

[00:15:42] Speaker 03:
I think the courts picked up that his background... It wasn't within his job description, right?

[00:15:46] Speaker 03:
Within his job description?

[00:15:48] Speaker 03:
What was not within?

[00:15:50] Speaker 04:
The advocating for the city administrator position.

[00:15:55] Speaker 04:
I mean, he was public works, right?

[00:15:59] Speaker 03:
Correct.

[00:15:59] Speaker 03:
He was a public works director.

[00:16:00] Speaker 03:
He was a department head.

[00:16:01] Speaker 03:
He was one of the top officials.

[00:16:03] Speaker 03:
But no, nothing in his job description said you will advocate or not advocate for a city administrator position.

[00:16:10] Speaker 03:
It's an uncommon form of government in Idaho.

[00:16:13] Speaker 03:
It doesn't happen very often.

[00:16:14] Speaker 03:
There's two ways you can do it.

[00:16:15] Speaker 03:
One is that the mayor can voluntarily decide he wants to hire a city administrator or to the city council can vote and impose it by statute on the mayor and effectively remove the, I mean, it doesn't that go to your opposing council's argument that

[00:16:31] Speaker 04:
that this was outside, and therefore that's what made this a protected speech.

[00:16:37] Speaker 03:
Yeah, I get that that's their argument, but I would just ask this court to look back at what the Supreme Court has said on that.

[00:16:43] Speaker 03:
The Supreme Court in the Garcetti v. Ceballos case addressed that.

[00:16:47] Speaker 03:
The wording that the Supreme Court uses is official duties.

[00:16:52] Speaker 03:
The Supreme Court doesn't say job description.

[00:16:54] Speaker 03:
What they say is,

[00:16:56] Speaker 03:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

[00:17:13] Speaker 03:
How do we draw that line?

[00:17:15] Speaker 04:
Because if you're saying it's not job description, which may be correct, where does it go beyond?

[00:17:21] Speaker 04:
I mean, why does a yard sign become out?

[00:17:25] Speaker 04:
I mean, you agree that putting up a yard sign is protected speech, right?

[00:17:30] Speaker 04:
Sure.

[00:17:31] Speaker 04:
OK.

[00:17:32] Speaker 04:
So what's the difference between that and something else that isn't in his, whether it's his job description?

[00:17:38] Speaker 04:
Is it because the mayor, in your view, like blessed this endeavor?

[00:17:44] Speaker 04:
Is that what makes this official duty?

[00:17:46] Speaker 03:
Let me see if I can answer.

[00:17:47] Speaker 03:
I thought I'd get this question.

[00:17:49] Speaker 03:
Maybe my answer to the question is that this court gets to decide that.

[00:17:53] Speaker 04:
No, you got to tell us what you want us to decide.

[00:17:56] Speaker 03:
But the way I would answer is this.

[00:17:58] Speaker 03:
Courts have to categorize speech at some level to decide summary judgment.

[00:18:04] Speaker 04:
I agree.

[00:18:04] Speaker 04:
And Garcetti, I appreciate what you read.

[00:18:07] Speaker 04:
I'm not sure it helps us.

[00:18:09] Speaker 03:
The courts have to categorize it in some general categories.

[00:18:12] Speaker 03:
The way they've done that is private speech and public official duty speech.

[00:18:17] Speaker 03:
So to the specific issue of did asking for a city administrator fall within one of the other of those categories, we have factors that we look at to determine that.

[00:18:29] Speaker 03:
I would ask this court to look at some of the other Supreme Court and Ninth Circuit decisions that clearly identify what is protected private speech.

[00:18:39] Speaker 03:
Yard sign.

[00:18:40] Speaker 03:
Putting a yard sign up in your yard ahead of an election is.

[00:18:43] Speaker 03:
Absolutely.

[00:18:45] Speaker 03:
Writing an op-ed in the newspaper complaining and pickering, complaining about the pay of school teachers is.

[00:18:51] Speaker 03:
uh... dodge versus uh... winter green wearing a maga hats apparently to a teacher in service training is free speech.

[00:18:58] Speaker 04:
Let me ask you this does it not become protected speech if say the boss says we support this presidential candidate that's gonna be good for the city i want all of you to go put a sign in your yard and wear a hat in support of that candidate does that make a protected speech because it was

[00:19:19] Speaker 04:
advocated for or given by a superior or the mayor?

[00:19:27] Speaker 03:
Well, there'd be questions about whether or not the boss could do that.

[00:19:31] Speaker 03:
But if the boss did that, I think it would be following a boss's directive.

[00:19:36] Speaker 03:
So it wouldn't be protected?

[00:19:37] Speaker 03:
It wouldn't.

[00:19:37] Speaker 03:
If it's happening at work, and you're paid to be there, and you're within your general official duties, and you're reporting directly to your supervisor, all of these things happened in this case.

[00:19:49] Speaker 03:
Rodney Birch was doing his official duties.

[00:19:52] Speaker 03:
He wrote and proposed a strategic plan.

[00:19:54] Speaker 04:
That seems to be Ms.

[00:19:56] Speaker 04:
Casperson's argument is there were disputed facts about how much of this was done with the, you know, the directive of the mayor and how much was done on his own.

[00:20:09] Speaker 03:
Well, I don't think there are disputed facts.

[00:20:11] Speaker 03:
We've conceded those facts.

[00:20:13] Speaker 03:
Birch says that he worked with the mayor.

[00:20:16] Speaker 03:
He describes that multiple times about discussing options for a city administrator position.

[00:20:22] Speaker 03:
He was open with the mayor about that.

[00:20:24] Speaker 03:
In his June 1 memo, which is in the record, he outlines three options in process, three options and ways you can go about it.

[00:20:33] Speaker 03:
I think by Birch's own testimony, he is open that he discussed it with the mayor as part of his duties.

[00:20:38] Speaker 03:
He was paid to be there.

[00:20:40] Speaker 03:
He was on the clock.

[00:20:41] Speaker 03:
They were in the workspace, and he was reporting to his supervisor.

[00:20:44] Speaker 02:
But this isn't like a civil service position.

[00:20:47] Speaker 02:
I mean, we're not writing a job description for the street sweeper operator.

[00:20:53] Speaker 02:
I would expect that the job description of one of the highest ranking officers of the city

[00:21:01] Speaker 02:
would be pretty vague and general as to what's within his wheelhouse.

[00:21:07] Speaker 02:
And if the mayor is not telling him, don't do this, then why is it improper for him to recommend a change in city structure to his direct supervisor, the mayor?

[00:21:19] Speaker 02:
It's really not improper.

[00:21:20] Speaker 02:
It is within his job duties.

[00:21:22] Speaker 02:
He can do that.

[00:21:22] Speaker 02:
I mean, how is that private speech?

[00:21:24] Speaker 02:
I'm having a hard time seeing Ms.

[00:21:26] Speaker 02:
Casperson's argument.

[00:21:28] Speaker 03:
It's just not.

[00:21:28] Speaker 03:
It's official.

[00:21:29] Speaker 03:
That's public speech.

[00:21:30] Speaker 03:
He is discussing the way the government should function at the city of Chubbuck with his direct supervisor.

[00:21:36] Speaker 03:
He's consulting with HR, Scott Gummersall.

[00:21:39] Speaker 03:
He's talking to council members also about it and trying to form a decision about what would be best for the city.

[00:21:46] Speaker 02:
It is squarely within.

[00:21:48] Speaker 02:
The mayor initially approved his proposal, right?

[00:21:51] Speaker 02:
I think he was open to it.

[00:21:52] Speaker 02:
So did the council, but then nothing happened for several months to implement it.

[00:21:57] Speaker 03:
I think nothing happened because the mayor stepped back away from, according to Birch.

[00:22:01] Speaker 01:
So you were trying to give us some cases or some things to look at in this, and frankly, I was being pretty direct with Miss Kaspersen because I was looking for the same kind of factors, if you will.

[00:22:17] Speaker 01:
Was it made up his chain of command?

[00:22:19] Speaker 01:
Was it made to his chain of command?

[00:22:21] Speaker 01:
Was it within his chain of hallmark?

[00:22:25] Speaker 01:
That was the first.

[00:22:28] Speaker 01:
Then was it taken outside the workplace?

[00:22:32] Speaker 01:
Seems to me there are those cases where you're taking your speech outside the workplace.

[00:22:36] Speaker 01:
That'll make it private speech.

[00:22:38] Speaker 01:
That won't be public speech.

[00:22:39] Speaker 01:
So that's why I said that one.

[00:22:42] Speaker 01:
Was it within his responsibilities within the city?

[00:22:46] Speaker 01:
And Ms.

[00:22:46] Speaker 01:
Caspersen directly corrected me and said that wasn't in his job description.

[00:22:51] Speaker 01:
I said, well, it's within what he did on every other basis.

[00:22:55] Speaker 01:
He did strategic planning, he did that.

[00:22:57] Speaker 01:
So within his responsibilities.

[00:23:00] Speaker 01:
Did it contravene the directions of his supervisors?

[00:23:04] Speaker 01:
Those are the ones that I found in other cases, which would say whether it was private speech or public speech.

[00:23:12] Speaker 01:
Are there any other you would add to that list?

[00:23:16] Speaker 03:
Those are the Dahlia factors, and the courts have looked at those a number of times.

[00:23:21] Speaker 01:
I can't think of one off the top of my head, but I think- Because Dahlia, I found them in Dahlia, and I found them in other places.

[00:23:28] Speaker 01:
We've put Dahlia together, and that's why I came up with those for Ms.

[00:23:33] Speaker 01:
Gasperson, and I'm asking you to help me now.

[00:23:37] Speaker 01:
If there's something else I need to think about here, where is it other than Dahlia?

[00:23:42] Speaker 03:
Well, I don't know if I can answer that one for Miss Casper, so I'll let her do that.

[00:23:46] Speaker 01:
No, I mean for you.

[00:23:47] Speaker 01:
What other factors?

[00:23:48] Speaker 03:
Well, I don't think that there are.

[00:23:50] Speaker 03:
And, but what this court can look at is we're giving stricter scrutiny to private speech.

[00:23:56] Speaker 03:
And where are we finding that private speech?

[00:23:59] Speaker 03:
We are finding it to your point outside of the workplace.

[00:24:02] Speaker 03:
We're finding it in op-eds to the newspaper.

[00:24:05] Speaker 04:
Well, let's back up because I mean, if he, if he had, if, um, if Mr. Burch had written an op-ed to the newspaper advocating for a city administrator,

[00:24:17] Speaker 04:
Would you agree that that was unprotected speech?

[00:24:23] Speaker 03:
Those are always hard questions because that's not what happened.

[00:24:25] Speaker 03:
But yeah, that's getting closer.

[00:24:27] Speaker 03:
Absolutely.

[00:24:27] Speaker 04:
But if he would have taken... Under your theory, why would it?

[00:24:30] Speaker 04:
Because that would still be... The mayor has given this apparent... I mean, in your view of the case, it seems to me, is the mayor has

[00:24:39] Speaker 04:
given him sort of agency to go and make the case for the city administrator position.

[00:24:44] Speaker 04:
And if that's true, then I don't understand why an op-ed to the newspaper would be different than going and arguing before the city council.

[00:24:52] Speaker 03:
It's different in this respect.

[00:24:54] Speaker 03:
When you're reporting to your supervisor, reporting back research ideas, construction of a plan, that's within what he's paying you to do.

[00:25:04] Speaker 03:
Now if he pays you to do that and you also want to go out and write an op-ed under your own name in a publication in the newspaper for political purposes, it may almost be a dual role that you're doing both.

[00:25:19] Speaker 04:
Isn't that the same thing?

[00:25:21] Speaker 04:
He went to the City Council and advocated, right?

[00:25:24] Speaker 04:
I mean, I mean, I'm not sure there's a difference between writing an op-ed in the newspaper and going to the city council and the city council wasn't during his own time.

[00:25:33] Speaker 04:
I'm not even sure if there are, I mean, are there work hours?

[00:25:36] Speaker 04:
I mean, there's work restrictions, but after five PM, does it matter whether the city council meeting was at three PM versus eight PM at night?

[00:25:45] Speaker 03:
I don't think it does.

[00:25:46] Speaker 03:
No.

[00:25:47] Speaker 03:
And I, and in this case they're in the evening, but to your point,

[00:25:51] Speaker 03:
It is still something he did within his job duties.

[00:25:54] Speaker 03:
And when he does something within his job duties, he has to be subject to some oversight, some management, some criticism by his supervisor.

[00:26:02] Speaker 03:
If his supervisor doesn't like the way that goes down.

[00:26:04] Speaker 04:
Why was that?

[00:26:04] Speaker 04:
How do we know that was within his job duties?

[00:26:08] Speaker 04:
Is there evidence that the mayor said go to the city council?

[00:26:12] Speaker 03:
Well, I think I don't think that there's evidence that he actually took the proposal of the city administrator position to the city council.

[00:26:19] Speaker 03:
That didn't get that far.

[00:26:20] Speaker 02:
It was presented at some point, right, because the council approved it.

[00:26:24] Speaker 03:
City administrator?

[00:26:25] Speaker 03:
No, they approved a strategic plan a few years earlier.

[00:26:28] Speaker 03:
Right.

[00:26:29] Speaker 03:
In 2021, when the mayor, well, when Mr. Burch was considering moving to the city administrator position, he had proposed that to the mayor.

[00:26:37] Speaker 03:
He had discussed it with employees and city council members, but it never got to an actual vote before city council.

[00:26:43] Speaker 03:
So the mayor approved it orally, but then changed his mind later.

[00:26:47] Speaker 03:
He was on board with the idea of it said bring me some research on it when he got right down the brass tacks he said I don't support that according to birch and then the idea died and according to birch to your point birch then dropped it.

[00:27:02] Speaker 03:
He didn't continue to advocate for it if he had you that would turn it into.

[00:27:07] Speaker 03:
If he had then said, you know what, my supervisors told me no, but I'm going to go out in the public and I'm going to go after this because I believe it's the right thing to do, then yes, that starts to become like private speech.

[00:27:19] Speaker 03:
Go ahead.

[00:27:20] Speaker 01:
Let me change the emphasis on these hypotheticals that you're getting.

[00:27:25] Speaker 01:
Let me change the emphasis.

[00:27:27] Speaker 01:
Does McDonnell Douglas play any part in this analysis, the McDonnell Douglas test?

[00:27:33] Speaker 03:
I haven't heard courts refer to it, but it's a similar burden-shifting approach.

[00:27:37] Speaker 01:
Well, a McDonnell-Douglas test is one where plaintiff has a certain burden to a certain point, and if they'd show that amount of evidence, then the government has to come back and say why it's not.

[00:27:49] Speaker 01:
And then the employee has to come back and say, well, that's pretext.

[00:27:55] Speaker 01:
That's pretext.

[00:27:57] Speaker 01:
The only reason I ask that is the district court seemed to follow that analysis in her decision.

[00:28:04] Speaker 01:
And I know that the McDonnell Douglas test applies in the IPPEA, but I don't know that it applies here.

[00:28:14] Speaker 03:
That's a good question.

[00:28:15] Speaker 03:
And I haven't heard the free speech decisions refer to it as the McDonnell Douglas burden shifting approach.

[00:28:21] Speaker 01:
Well, to be fair, it's a retaliation doctrine.

[00:28:24] Speaker 03:
Right.

[00:28:25] Speaker 03:
But I do think it.

[00:28:26] Speaker 01:
And we apply it all the time in retaliation cases.

[00:28:30] Speaker 01:
That's why I ask you the question.

[00:28:32] Speaker 03:
Yeah, absolutely.

[00:28:33] Speaker 03:
I get that.

[00:28:33] Speaker 03:
And the approach that the courts have articulated feels just like the McDonnell Douglas approach because the burden does shift to the employer to establish that we had, you know, under the balance of interest, a reason to take the action that we did that was non-protextual.

[00:28:49] Speaker 03:
And so, yes.

[00:28:50] Speaker 01:
Let me ask you another question.

[00:28:52] Speaker 01:
As to the Elroy Policymaker exception that your opponent talks about, since the district court didn't have the occasion to weigh in and discuss this Elroy Policymaker exception, should we be talking about that?

[00:29:14] Speaker 03:
I don't know.

[00:29:14] Speaker 03:
I think it applies to this case.

[00:29:17] Speaker 01:
Well, but the district court didn't even talk about it.

[00:29:19] Speaker 03:
Yeah, she didn't get to it.

[00:29:20] Speaker 03:
She didn't feel like it was necessary.

[00:29:23] Speaker 01:
Should we weigh in over the top of her?

[00:29:26] Speaker 03:
I don't think the court needs to.

[00:29:28] Speaker 03:
I think the court can affirm the decision the district court made, though I do think if this court looks at it, the policymaker exception should apply to this case.

[00:29:38] Speaker 03:
Rodney birch was in a policymaking position he was a department head he consulted regularly with the mayor and so when he's speaking out on items such as form of government he is weighing in on policymaking type decisions.

[00:29:51] Speaker 01:
Okay, and I question this.

[00:29:54] Speaker 01:
the Council about, Ms.

[00:29:58] Speaker 01:
Kaspersen, about protected activity.

[00:30:01] Speaker 01:
And the reason I put it in the protected activity nature is because I have the IPPEA in front of me.

[00:30:08] Speaker 01:
And so I was trying to get into that before I got there, but just to say we're really talking about it.

[00:30:15] Speaker 01:
And under the IPPEA, we have a protected activity, but it's got to be a communication, right?

[00:30:22] Speaker 03:
Yes, absolutely.

[00:30:24] Speaker 01:
And what you're suggesting is that all these communications happened before the statute ran.

[00:30:33] Speaker 03:
Yes, there's nothing in the record that they can point to in these six months.

[00:30:37] Speaker 01:
And she says, no, quite the opposite.

[00:30:40] Speaker 01:
It was a continuing tort.

[00:30:43] Speaker 03:
That's a plaintiff's attorney's way of saying we can't identify anything.

[00:30:48] Speaker 03:
She is.

[00:30:48] Speaker 01:
But I'm just telling you, that's her argument.

[00:30:51] Speaker 01:
And what's your response back then?

[00:30:53] Speaker 03:
My response is that this court has to find something in the record that happened in the six months immediately preceding the lawsuit.

[00:31:01] Speaker 01:
And we're talking about the something, meaning?

[00:31:04] Speaker 01:
Some reported activity of waste.

[00:31:06] Speaker 01:
Some communication in good faith.

[00:31:08] Speaker 01:
Isn't that what we're talking about?

[00:31:09] Speaker 03:
Yes, a report of waste and violation.

[00:31:11] Speaker 01:
the filing of the resignation.

[00:31:15] Speaker 03:
That wasn't one.

[00:31:16] Speaker 03:
That wasn't one.

[00:31:18] Speaker 03:
He resigned on March 3rd.

[00:31:19] Speaker 03:
He filed a written resignation on March 3rd saying, my last day will be April 7th.

[00:31:25] Speaker 03:
On April 7th, he came in and listed a laundry list of things that he felt like was going wrong at the city.

[00:31:32] Speaker 03:
None of those, if you scrutinize them, are a report of waste or a violation of law.

[00:31:37] Speaker 03:
Right, but that falls within the 180 days.

[00:31:40] Speaker 03:
That would, yes.

[00:31:42] Speaker 01:
I was going to say, the resignation would fall within the 180 days.

[00:31:46] Speaker 03:
Yes, it did.

[00:31:47] Speaker 01:
Okay.

[00:31:48] Speaker 03:
I see that I'm out of time.

[00:31:49] Speaker 04:
If you don't have any other questions.

[00:31:50] Speaker 04:
Hey, Judge Smith can keep you up here as long as he wants.

[00:31:53] Speaker 04:
Thank you for taking time.

[00:31:56] Speaker 04:
We'll give you two minutes for rebuttal.

[00:32:00] Speaker 00:
Thank you, Your Honor.

[00:32:02] Speaker 00:
Just quickly I want to address those value factors and on the chain of command I want to point you to 2ER 293 and that is an email between the mayor and Birch and the mayor says how are we going to go forward?

[00:32:20] Speaker 00:
And Birch comes back and he says, you know, all of these things, but one of the things he says is that, I will cease further private communications with the council about your performance.

[00:32:31] Speaker 00:
If he had a duty and they were in his chain of command, he cannot agree that he's not going to take things to people he's required to take things.

[00:32:40] Speaker 00:
And yet that's what he says.

[00:32:42] Speaker 00:
With regard to the official duties, the mayor testified that Birch did things all the time he was never asked to do, including the strategic plan.

[00:32:54] Speaker 04:
That seems to hurt your argument.

[00:32:55] Speaker 04:
I help you.

[00:32:56] Speaker 04:
Because if he did those all the time that he wasn't asked to do, that suggests he has more agency to act within his official duties outside of this narrative.

[00:33:06] Speaker 04:
Let's say we don't accept your sort of narrow construct that the job description is the defining moment here.

[00:33:14] Speaker 04:
What is your best evidence of something that he did that was outside of his official duties?

[00:33:19] Speaker 04:
that should make this this protected speech.

[00:33:22] Speaker 00:
I think the best thing that we have are his private communications with individuals of the city council about proposing this city administrator position.

[00:33:32] Speaker 04:
When did those happen?

[00:33:34] Speaker 00:
So those happened they happened before he met with the mayor to discuss it because that's what triggered should we try to get the mayor on board with this because he was concerned about the mayor's performance

[00:33:48] Speaker 00:
He wasn't overseeing things.

[00:33:50] Speaker 00:
There was a lot of waste.

[00:33:51] Speaker 00:
There was a lot of loss of manpower.

[00:33:54] Speaker 00:
And that's what he was trying to address individually with.

[00:33:57] Speaker 04:
But just to be clear, he never actually appeared before a city council meeting and advocated on this, or did he?

[00:34:03] Speaker 04:
No, no.

[00:34:04] Speaker 04:
So it's just these private communications.

[00:34:06] Speaker 00:
These private communications.

[00:34:07] Speaker 00:
And then when he sends that email, he specifically says, I will stop.

[00:34:12] Speaker 00:
you know, doing those actions to try to get the mayor on board.

[00:34:16] Speaker 00:
With regard to the IPVEA, one of the things I want to correct there is that it's the adverse action that triggers the statute of limitations, not the communication.

[00:34:29] Speaker 04:
So that really gets us into... Do you think everything rolls in because the resignation

[00:34:35] Speaker 04:
was within, and it's a constructive discharge.

[00:34:38] Speaker 00:
And it's a constructive discharge, and if briefly, I wanted to talk about that constructive discharge because one of the things- I'm not sure you're right about that though.

[00:34:45] Speaker 04:
Well, I guess this is a state law claim, so I guess I gotta look at that a little closer.

[00:34:49] Speaker 04:
But under federal law, I don't think that you would be able to bring in things that happened, you know,

[00:34:57] Speaker 04:
outside of the statute of limitations just because the action itself.

[00:35:01] Speaker 00:
Oh, talking about the continuing action theory.

[00:35:04] Speaker 00:
Yeah.

[00:35:04] Speaker 00:
No, I'm just talking about, I think there was a suggestion that it's the communication that triggers when the statute of limitation begins to run, so we're looking now backwards.

[00:35:14] Speaker 00:
It's not, it's the adverse employment action and that's what she ruled is that there was no evidence of any adverse action after February 23rd of 22 because she rejected the constructive discharge.

[00:35:28] Speaker 00:
Now our argument was that every time that he had directed financial decisions be taken away from him and every time that, you know,

[00:35:39] Speaker 00:
that policy decisions got taken to as a subordinate, these are actions.

[00:35:44] Speaker 02:
But the biggest thing about the... But Ninth Circuit case law doesn't support you on that, does it?

[00:35:49] Speaker 00:
On...

[00:35:50] Speaker 02:
on those constituting constructive discharge, the fact that you reduce an employee's responsibilities is not considered adverse.

[00:35:59] Speaker 00:
I think what we have to look at is the aggravating factors and the totality of the circumstances, and that's where we really have a problem with what the district court said.

[00:36:08] Speaker 00:
Like if you look at Schneiderig, that case, it specifically says, well, that employee wasn't demoted, they weren't asked to resign or be fired, they weren't disciplined, and we have all of those things.

[00:36:20] Speaker 00:
You know, he was asked to resign twice.

[00:36:23] Speaker 00:
He was forced to go to an executive council meeting and attempted to be fired.

[00:36:28] Speaker 00:
After that, the mayor refused to meet with him and then he appointed an interim public works director when Mr. Burch is still there.

[00:36:37] Speaker 00:
And then he continues to take work away from him.

[00:36:40] Speaker 00:
And our argument is those aggravating factors that this court has identified exist in this case.

[00:36:47] Speaker 00:
And if the court had considered those and the totality of the circumstances, that constructive discharge claim should have gone forward.

[00:36:55] Speaker 04:
Thank you.

[00:36:56] Speaker 04:
Thank you to both counsel for a well argued case.

[00:36:59] Speaker 04:
The case is now submitted and that concludes our arguments for the day.