[00:00:00] Speaker 02:
We have just one case on calendar for the afternoon, which is Garnier versus O'Connor Radcliffe, 21-55118 and 21-55157.

[00:00:10] Speaker 02:
Each side will have 20 minutes.

[00:00:20] Speaker 01:
Thank you.

[00:00:21] Speaker 01:
May I begin?

[00:00:22] Speaker 02:
Yes, please.

[00:00:23] Speaker 02:
Thank you.

[00:00:24] Speaker 01:
May it please the court, I too wish to express my deep concern for the community of Los Angeles and Pasadena in particular, and I'm very sorry to hear that you're experiencing what you've experienced and it's a great tragedy.

[00:00:44] Speaker 01:
The particular matter before us this afternoon, in our brief we indicated

[00:00:52] Speaker 01:
that there is not a great deal of factual evidence that was presented to the court on the particular issues that were identified in Lindke versus Freak.

[00:01:05] Speaker 01:
And so I think it's important to note that we had indicated the court may be inclined to amend this to the district court to gather further information.

[00:01:19] Speaker 01:
But I'm not suggesting that simply as an observation.

[00:01:25] Speaker 01:
I think that what the court does have from the record

[00:01:31] Speaker 01:
It goes back to the declarations that were filed in support of the motion for summary judgment that was heard before Judge Whelan.

[00:01:42] Speaker 01:
And the particular declarations are at 4ER 736 to 737.

[00:01:51] Speaker 01:
That's the declaration of Christine Pake.

[00:01:56] Speaker 01:
Then we have the declaration of Michelle O'Connor Radcliffe

[00:02:01] Speaker 01:
4ER 741 through 743.

[00:02:05] Speaker 01:
And then we have the declaration of TJ Zane 4ER 738 to 739.

[00:02:13] Speaker 01:
This issue of actual authority is a significant one.

[00:02:23] Speaker 01:
So in Linkey, the Supreme Court provided us with a two pronged test, the first one indicating that the officer must have actual authority to speak on that particular matter.

[00:02:41] Speaker 01:
Council and I respectfully disagree with one another.

[00:02:44] Speaker 01:
It was Mr. Briggs' position that that had already been determined by the court in the underlying decision.

[00:02:53] Speaker 01:
I don't believe that is actually the case.

[00:02:57] Speaker 03:
That was a question.

[00:02:58] Speaker 03:
One thing I began to wonder about when I was reading this is when it has to be actual authority to speak on the state's behalf.

[00:03:06] Speaker 03:
What's the state?

[00:03:07] Speaker 03:
I mean, these people are public officials.

[00:03:10] Speaker 01:
Yes.

[00:03:11] Speaker 03:
And they, in some respects, are the state.

[00:03:16] Speaker 03:
So what does it mean that they have, I mean,

[00:03:20] Speaker 03:
Do they have to have authority to speak for the board, or do they have to have authority to speak for themselves as public officials?

[00:03:30] Speaker 03:
What do they need to have?

[00:03:31] Speaker 01:
It's an excellent question.

[00:03:34] Speaker 01:
And so I think that, first of all, we have to have a Brown Act convened meeting.

[00:03:41] Speaker 01:
And that is where the board is convened.

[00:03:45] Speaker 01:
The public is noticed of the hearing.

[00:03:50] Speaker 01:
There are specific agenda items that are identified for discussion, and they only act under the Brown Act as a board majority.

[00:04:01] Speaker 01:
And at that time, they have the opportunity to address the issues that are before them.

[00:04:08] Speaker 01:
Otherwise, they're private citizens.

[00:04:11] Speaker 03:
That's not true.

[00:04:12] Speaker 03:
They're publicly elected officials with a role

[00:04:15] Speaker 03:
And part of their role seems to involve some communication with constituents.

[00:04:23] Speaker 03:
So why do we look at them only as votes on the board?

[00:04:29] Speaker 01:
Well, because what the Linkey test really says is, do they have actual authority?

[00:04:35] Speaker 03:
Actual authority to do what?

[00:04:36] Speaker 03:
That's what I'm asking.

[00:04:37] Speaker 01:
Actual authority to speak on behalf of the board.

[00:04:40] Speaker 03:
Why?

[00:04:41] Speaker 03:
That's what I'm asking.

[00:04:42] Speaker 03:
Why the board?

[00:04:43] Speaker 01:
Well, because unlike the Linkey case where we have an executive, here we have a board.

[00:04:51] Speaker 01:
We have a board that has rules in place.

[00:04:55] Speaker 01:
And specifically as it relates to social media, they had a director of communications, the superintendent and the superintendent's designee, in this case, Ms.

[00:05:05] Speaker 01:
Pate, she controlled and operated all social media communications.

[00:05:11] Speaker 01:
The problem exists if you have board members that are speaking on a variety of different issues, you have the potential of having a Brown Act violation.

[00:05:23] Speaker 01:
So that is the reason that precludes them based on the guidance of the Brown Act not to do that.

[00:05:32] Speaker 02:
there is no so is there any authority in i guess this would be under state law that says that that says a public official cannot announce an upcoming meeting cannot announce events i mean they were making what seemed to be official announcements of school district related events they so respectfully i would suggest

[00:05:56] Speaker 01:
that those equally are private announcements of public offenses.

[00:06:01] Speaker 01:
It's simply reporting.

[00:06:04] Speaker 01:
And that's what they say in Linkey.

[00:06:05] Speaker 01:
And they say in Linkey and the Ramand as well.

[00:06:08] Speaker 02:
And that is- But sometimes they were saying things like, give us feedback on the superintendent.

[00:06:13] Speaker 01:
Yeah.

[00:06:15] Speaker 01:
But again, they have to possess actual authority for this to be actionable under 1983.

[00:06:22] Speaker 01:
And we don't have a vote.

[00:06:24] Speaker 01:
We don't have any action by the board authorizing individual board members to make those communications.

[00:06:31] Speaker 01:
In fact, if we take a look at Ed Code 35172, it specifically talks about the board.

[00:06:39] Speaker 01:
And when we take a look at the board policies under 9000, 9000A, it doesn't talk about individual members.

[00:06:48] Speaker 01:
Now, the amicus brief,

[00:06:50] Speaker 02:
Can I ask you about that?

[00:06:51] Speaker 02:
Because Ed Code 35178 says that a member of the governing board of a school district who has tendered a resignation, with a few words in between, shall until the effective date of the resignation continue to have the right to exercise all powers of a member of the governing board, which suggests to me that there are powers that members have aside from the board itself, or it wouldn't be worded that way, right?

[00:07:19] Speaker 01:
I believe what that refers to is actions that are taken at scheduled meetings, either regularly scheduled meetings or special meetings that the Brown Act provides for.

[00:07:35] Speaker 01:
Otherwise, they're just individual citizens that are speaking or reporting on their own particular perspective.

[00:07:44] Speaker 01:
I mean, Mr. Briggs, for example, provided an example of a post

[00:07:49] Speaker 01:
by TJ Zane of a visit to a school site.

[00:07:53] Speaker 01:
Well, the same information.

[00:07:54] Speaker 03:
I have a question.

[00:07:56] Speaker 03:
Zane is no longer a member of the school board.

[00:08:01] Speaker 03:
So isn't he just out of the case at this point?

[00:08:04] Speaker 03:
And the record regarding him is out of the case.

[00:08:07] Speaker 03:
I mean, the injunction can't apply to him anymore.

[00:08:10] Speaker 01:
That's true.

[00:08:11] Speaker 03:
Oh, it's moot.

[00:08:12] Speaker 03:
And so the relevant record has to be limited to the Alcada Radcliffe record.

[00:08:19] Speaker 03:
Is that right?

[00:08:19] Speaker 01:
Yes, no, I agree with that.

[00:08:24] Speaker 02:
Is she the president of the board?

[00:08:27] Speaker 01:
I'm not sure that that is her current seat.

[00:08:29] Speaker 01:
She certainly had been the president of the board.

[00:08:33] Speaker 01:
I know last session, but they have their organizational meeting in December.

[00:08:38] Speaker 01:
I do not know whether she took on those responsibilities again.

[00:08:44] Speaker 02:
Because the president of the board has some additional responsibilities to speak for the board, right?

[00:08:49] Speaker 01:
In terms of organizing the agenda for the board, that's the rule.

[00:08:58] Speaker 03:
It also says all public statements authorized to be made on behalf of the board shall be made by the board president or appropriated by the superintendent.

[00:09:07] Speaker 03:
Which is authorized to make announcements on behalf of the board.

[00:09:10] Speaker 01:
Well, those are situations where, for example, there was an interview by the press.

[00:09:16] Speaker 01:
And so that person is authorized to speak on a particular issue consistent with that particular body of law.

[00:09:29] Speaker 01:
But I think that it's very different when you're talking about social media, because that would mean under that restrictive view that they have no private right of speech.

[00:09:40] Speaker 01:
And this is a situation where these- I don't really understand why that's true, actually.

[00:09:46] Speaker 01:
Okay.

[00:09:47] Speaker 03:
I don't see, or at least I don't think it's been shown that the state action issue and the first amendment issue are actually

[00:09:59] Speaker 03:
completely parallel.

[00:10:00] Speaker 03:
I don't know why that's necessarily the case.

[00:10:02] Speaker 01:
OK.

[00:10:03] Speaker 01:
Well, I think we need to look at the inception.

[00:10:06] Speaker 01:
Both of these sites were created before they became board members.

[00:10:11] Speaker 01:
So unquestionably, they were campaign pages.

[00:10:16] Speaker 01:
And they continued as campaign pages.

[00:10:18] Speaker 01:
And the state of the evidence is that that was their intent.

[00:10:23] Speaker 01:
It was always their intent to push out information

[00:10:28] Speaker 01:
and they're constantly running for re-election.

[00:10:32] Speaker 02:
That part of the argument about what they purported to be doing, I think we were already rejected, didn't we?

[00:10:42] Speaker 01:
Yeah, but that's, you did, but that's not the test from Linkey.

[00:10:47] Speaker 01:
So it's not an issue of what is purported to be the case.

[00:10:52] Speaker 01:
The issue is- Oh, that's the second issue.

[00:10:54] Speaker 01:
The second prong.

[00:10:56] Speaker 01:
Correct.

[00:10:56] Speaker 01:
Correct.

[00:10:57] Speaker 01:
The first prong is that they have actual authority.

[00:11:00] Speaker 01:
And I think that without actual authority under, under Linkey, that's the, that's the end of, that's the end of the narrative.

[00:11:09] Speaker 02:
Can I ask you, how would, so education code 35172C says that the governing board of any school district may inform and make known to the citizens of the district the educational programs and activities of the schools they're in.

[00:11:24] Speaker 02:
A board is not, it has to speak through someone, so how could it do that and comply with the education code in any way other than at least through the president speaking?

[00:11:35] Speaker 01:
No, they assign that responsibility to the superintendent or the superintendent designee.

[00:11:40] Speaker 03:
That's why they have... Not like COVID, but they didn't.

[00:11:43] Speaker 03:
That's the sentence I arranged you.

[00:11:44] Speaker 03:
All public statements authorized to be made on behalf of the board shall be made by the board president or, if appropriate, by the superintendent.

[00:11:53] Speaker 01:
Well, I think Judge Freeland was referring to 35172.

[00:11:58] Speaker 01:
And so I'm attempting to respond to 35172.

[00:12:01] Speaker 01:
And 35172 doesn't talk about individual board members.

[00:12:06] Speaker 01:
It talks about the board.

[00:12:08] Speaker 01:
In the amicus brief, I was surprised that there was also reference to this particular body of law suggesting somehow it applied to members.

[00:12:18] Speaker 01:
It did not.

[00:12:19] Speaker 01:
The body of law refers to the board.

[00:12:22] Speaker 01:
The board can only speak with one voice as a board majority.

[00:12:27] Speaker 02:
Well, even if that's true, why would we not say that the president is the one doing that?

[00:12:33] Speaker 02:
I mean, you were starting to say it's the superintendent, but I don't know what your basis for that would be.

[00:12:36] Speaker 01:
That the basis for that is based on board policy.

[00:12:44] Speaker 03:
And to the board policy, it says the opposite.

[00:12:47] Speaker 03:
It says that it's the president or, if appropriate, the superintendent.

[00:12:51] Speaker 01:
The spokesman for the school district is the superintendent.

[00:12:56] Speaker 03:
That's what you're saying, but it's not what the policy is.

[00:12:59] Speaker 01:
Well, I believe that the policy that is set out in the evidence is that the district hired a spokesperson as the director of communications who was responsible for planning, developing, coordinating, and implementing communications and public relation activities for the district.

[00:13:21] Speaker 01:
that then it goes on to say the declaration this isn't written as law anywhere is it no these are excerpts from the record mostly from the motion for for summary judgment in the declaration this is just her describing her job correct correct and that's that's that's why i said this issue is i think this issue is very important

[00:13:45] Speaker 01:
in terms of board members all over the state because the chilling impact on all of this would effectively be no board member could run the risk of creating an issue of state action.

[00:14:00] Speaker 01:
So they also have First Amendment rights as well.

[00:14:04] Speaker 01:
These were campaign pages.

[00:14:08] Speaker 01:
This wasn't the president speaking on behalf of the board.

[00:14:11] Speaker 03:
At least speaking, this is why I asked the question I did.

[00:14:15] Speaker 03:
I mean, we did say in our earlier opinion, and it wasn't questioned by the Supreme Court.

[00:14:21] Speaker 03:
And the pages, let's just stick to O'Connor Radcliffe, because she's the only person left.

[00:14:28] Speaker 03:
She presents herself as the president of the board, and she says her email address is her board email address.

[00:14:38] Speaker 01:
Right.

[00:14:38] Speaker 03:
And she doesn't say anything about any campaign once she was elected.

[00:14:46] Speaker 03:
So why are you saying that it was originally a campaign?

[00:14:51] Speaker 01:
So quoting from Linkey, I would say that the focus on appearance

[00:14:57] Speaker 01:
skips the crucial steps of actual authority.

[00:15:00] Speaker 03:
We understand that.

[00:15:01] Speaker 03:
We understand there's another step.

[00:15:04] Speaker 03:
But for that step, it's not a campaign.

[00:15:07] Speaker 03:
We already hailed that it wasn't just a campaign website.

[00:15:12] Speaker 03:
Then it was her speaking and her appearing at least to speak in her official capacity.

[00:15:17] Speaker 03:
And that piece doesn't seem to be implemented, affected by anything in a litigate opinion, is it?

[00:15:24] Speaker 01:
Yeah, I just don't believe that there is evidence of actual authority.

[00:15:28] Speaker 03:
All right, so let's stick to that question.

[00:15:30] Speaker 03:
Let's stick to the actual authority.

[00:15:32] Speaker 01:
Yeah.

[00:15:33] Speaker 01:
I don't think that there is evidence, even what might be reported to be an exercise of an assertion of speech by these elected officials, that they had actual authority to speak on behalf of the board.

[00:15:48] Speaker 05:
Mr. Shinoff, if we were to remand to the district court

[00:15:54] Speaker 05:
What additional evidence would you be seeking to append to the existing record in order to address the Lindke task?

[00:16:06] Speaker 01:
I would want to make sure that the court had before at the issue of actual authority, and these questions weren't addressed because Judge Whelan had made his decision on the motion for summary judgment.

[00:16:21] Speaker 01:
Judge Benitez.

[00:16:24] Speaker 02:
I think Judge Talman is asking you, what evidence would you offer?

[00:16:28] Speaker 01:
The issue of actual authority, that there had been no board vote, that the responsibility rests with the superintendent or the superintendent's designee.

[00:16:39] Speaker 01:
That's the evidence that I would want.

[00:16:41] Speaker 03:
And what kind of evidence would that be?

[00:16:44] Speaker 03:
One problem we have is that I believe that these various board policies are not officially in the record, is that right?

[00:16:51] Speaker 01:
That's the problem.

[00:16:53] Speaker 03:
And that they've changed as well, is that right?

[00:16:56] Speaker 01:
Certainly.

[00:16:57] Speaker 01:
Board policies change.

[00:16:59] Speaker 01:
The board policy, for example, on the 9,000 board policy, for you not to have it properly in front of you, I apologize.

[00:17:13] Speaker 02:
So we can find some bylaws that seem to have been adopted in August 2018.

[00:17:19] Speaker 02:
If we were to remand, would you still have evidence of what the bylaws were in 2017?

[00:17:24] Speaker 01:
Yes, absolutely.

[00:17:28] Speaker 02:
I know this isn't in the record, but can you tell us how different they were?

[00:17:31] Speaker 01:
They weren't different.

[00:17:34] Speaker 01:
Not different.

[00:17:35] Speaker 01:
They were not different.

[00:17:36] Speaker 03:
What about since then?

[00:17:37] Speaker 03:
Have they changed since then?

[00:17:38] Speaker 01:
No, they have not.

[00:17:40] Speaker 02:
So is there any reason to remand then?

[00:17:42] Speaker 02:
I mean, can we just look at the bylaws from August 2018 and think about whether they're enough?

[00:17:48] Speaker 02:
I understand you think they are not enough for authority, but if we think they are, I'm not sure how a remand would change that.

[00:17:54] Speaker 01:
Well, I think that you could look at that, but I also think you have to take a look at the various ed code provisions

[00:18:04] Speaker 01:
in terms of how the board is to conduct business under the Ed Code.

[00:18:10] Speaker 01:
And then I think you also have to underscore the complications of the Brown Act.

[00:18:18] Speaker 03:
I don't really understand the relevance of the Brown Act.

[00:18:21] Speaker 03:
Is there anything on Conor Radcliffe's website that implicates the Brown Act, in fact?

[00:18:29] Speaker 01:
Yes.

[00:18:30] Speaker 01:
Yeah, I mean, the board policies that I am referring to, for example, specifically reference the Brown Act.

[00:18:39] Speaker 05:
What?

[00:18:39] Speaker 05:
Council, I'd like to make sure I understand your answer to my question.

[00:18:45] Speaker 05:
Sure.

[00:18:45] Speaker 05:
Are you saying that the evidence may be in the record, but that at the time of the summary judgment motion before

[00:18:56] Speaker 05:
I guess it was the trial in front of Judge Benitez, the parties weren't focused on authority because of Judge Whelan's prior partial summary judgment in the case.

[00:19:07] Speaker 01:
Correct.

[00:19:08] Speaker 01:
And Judge Benitez, at the very beginning of the case, indicated, I know that there's an interest on the part of the district to reopen this issue of actual authority, but we're not going there.

[00:19:20] Speaker 01:
because he believed that that had already been decided by Judge Wigland.

[00:19:25] Speaker 05:
So if we remand it, what you would actually be doing would be to essentially move for a new trial before Judge Benitez, which might look very different from the case that he actually tried when actual authority was not at issue.

[00:19:42] Speaker 05:
Is that a fair statement?

[00:19:43] Speaker 01:
I think it's a fair statement, but I think that it's actually in Linsky versus Fried, for example, the Sixth Circuit just sent back that case on remand to the trial court to get some additional information as well.

[00:20:00] Speaker 02:
But can I ask you, when you were a moment ago listing the things you thought would be presented to the district court, they all were laws.

[00:20:08] Speaker 02:
It sounds like everything you listed so far is something we could just look up ourselves on Westlaw and take judicial notice of the law, read it ourselves.

[00:20:16] Speaker 02:
So what is the actual factual evidence that you would present that's different from what is already in the record?

[00:20:22] Speaker 01:
the minutes of the board where there's no action taken by the board to authorize individual board members to speak on behalf of the board.

[00:20:34] Speaker 03:
But the policy that I keep reading you says that there is authority of the president to speak on behalf of the board.

[00:20:41] Speaker 01:
Only the president only speaks on issues if there's a specific issue to speak to.

[00:20:50] Speaker 01:
That doesn't authorize the board president to have a social media page on behalf of the district.

[00:20:57] Speaker 03:
But does it authorize her to announce things that the board has already decided?

[00:21:01] Speaker 03:
like when it's going to have its next meeting?

[00:21:03] Speaker 01:
Well, I think they can all do that.

[00:21:05] Speaker 01:
And that's within their private realm.

[00:21:08] Speaker 01:
I mean, simply saying we had this board meeting, I don't think that that reflects anything in terms of their official role.

[00:21:17] Speaker 01:
They're simply reporting.

[00:21:19] Speaker 01:
This is what transpired.

[00:21:21] Speaker 01:
In the Linke decision, they talked about a situation where the board president

[00:21:26] Speaker 01:
made a comment about the pandemic.

[00:21:29] Speaker 01:
And then the next day, they made the same comment about the pandemic at a private barbecue.

[00:21:36] Speaker 01:
And the fact that they made that comment at the private barbecue doesn't mean that it's state action.

[00:21:44] Speaker 02:
Sorry, can I ask you about this BB9012A adopted?

[00:21:50] Speaker 02:
It seems the version I have is adopted August 9th, 2018, which recognizes that electronic communication is an efficient and convenient way for board members to communicate and expedite the exchange of information within the district and with members of the public.

[00:22:05] Speaker 02:
That sounds like a board policy allowing electronic communication from board members to the public.

[00:22:11] Speaker 02:
If you're saying that the board rules have not changed before or after 2018, I'm having trouble understanding how there isn't a policy that allows exactly what we're talking about.

[00:22:23] Speaker 01:
I would refer the court to the legal references on 901 to A and B. And what you'll see is Ralph M. Brown Act.

[00:22:38] Speaker 01:
And so what we're doing is the governing board recognized it's an efficient way for board members to communicate.

[00:22:46] Speaker 01:
But beware that if you're speaking on an issue that may come before the board, you could be engaged in a serial Brown Act violation.

[00:22:58] Speaker 03:
But in terms of authority, examples of permissible electronic communications concerning district business include but are not limited to

[00:23:08] Speaker 03:
dissemination of board meeting agendas and agenda packages, reports of activities from the superintendent, and reminders regarding meeting times, dates, and places.

[00:23:18] Speaker 03:
Now, at least some of what was on Alcona Radcliffe's Facebook page was exactly that, right?

[00:23:28] Speaker 01:
Yes, but the same information is on the district web page.

[00:23:31] Speaker 03:
What difference does that make?

[00:23:33] Speaker 03:
Isn't she authorized to use her

[00:23:35] Speaker 03:
webpage to communicate exactly those things.

[00:23:39] Speaker 03:
And if she is, and she blocked the Garnier's from being on that webpage entirely, not only with regard to other things, why isn't that just the end of things?

[00:23:50] Speaker 01:
Well, if you take a look, it says board members may use electronic communication to discuss matters that do not pertain to district business.

[00:24:00] Speaker 03:
All right.

[00:24:00] Speaker 03:
But that's a different thing.

[00:24:01] Speaker 03:
That's not what we're talking about.

[00:24:02] Speaker 03:
We are talking about the particular things on her website that are specifically noted to be permissible electronic communications concerning district business.

[00:24:14] Speaker 03:
And those are at least some of the things on her website.

[00:24:19] Speaker 01:
OK.

[00:24:19] Speaker 01:
But I think that the issue of what her status was at any particular time here is also important.

[00:24:29] Speaker 01:
We're talking about her being elected in 2014.

[00:24:33] Speaker 01:
When did she become the board president?

[00:24:36] Speaker 01:
When were these statements?

[00:24:38] Speaker 03:
But this particular piece, it doesn't have to do with her being a board president.

[00:24:43] Speaker 01:
I, it's, my reading of it is that it's a caution to board members to not engage in communications that could compromise.

[00:24:55] Speaker 01:
Right.

[00:24:55] Speaker 03:
As to some things, and if she does that, she's in trouble, but it's also permission to do other things.

[00:25:01] Speaker 01:
Okay.

[00:25:03] Speaker 01:
I understood.

[00:25:04] Speaker 05:
Just make sure I'm with you all.

[00:25:06] Speaker 05:
Are you talking about the board policy 9012A?

[00:25:10] Speaker 03:
Right.

[00:25:11] Speaker 05:
And it's my understanding that was not in the record.

[00:25:14] Speaker 05:
Is that correct?

[00:25:16] Speaker 01:
That is correct.

[00:25:18] Speaker 02:
It sounds like you're representing to us that it's been the policy the whole time.

[00:25:23] Speaker 01:
Yes.

[00:25:24] Speaker 01:
Yes.

[00:25:26] Speaker 03:
And is it available?

[00:25:27] Speaker 03:
If we go look at the website of the board, what would you find there?

[00:25:31] Speaker 03:
Yes.

[00:25:33] Speaker 03:
It's basically a law, a rule.

[00:25:36] Speaker 01:
It is a board bylaw.

[00:25:39] Speaker 01:
Yes.

[00:25:40] Speaker 03:
Oh, it's subject to judicial notice?

[00:25:42] Speaker 03:
No?

[00:25:43] Speaker 01:
Yes.

[00:25:44] Speaker 01:
I think you could take judicial notice of it.

[00:25:47] Speaker 02:
And I had trouble finding a version from before 2018.

[00:25:52] Speaker 02:
But to remand, to learn something that you just could tell us today seems a little formalistic, even if technically it's not on the record.

[00:25:58] Speaker 02:
I mean, you're telling us that in 2017, this rule still existed too.

[00:26:02] Speaker 01:
Yes.

[00:26:03] Speaker 02:
Or existed too.

[00:26:06] Speaker 05:
So if the trial before Judge Bonitas really didn't

[00:26:09] Speaker 05:
focus on actual authority, what did it focus on?

[00:26:15] Speaker 01:
It focused on time, place, and manner.

[00:26:19] Speaker 05:
Basically the restrictions under the proposed injunction?

[00:26:24] Speaker 01:
Correct.

[00:26:25] Speaker 01:
Correct.

[00:26:27] Speaker 01:
And he made specific findings.

[00:26:29] Speaker 01:
But he did note in our trial brief, we indicated an interest in addressing this issue of actual authority.

[00:26:38] Speaker 01:
Judge Benitez was very gracious, and he said that that issue has been decided by Judge Whelan on the motion for summary judgment.

[00:26:53] Speaker 02:
Okay, we've taken you way over your time.

[00:26:55] Speaker 02:
I will still give you three minutes for rebuttal, but let's hear from the other side.

[00:27:02] Speaker 00:
May it please the court, I'm Corey Briggs, privileged to represent the appellate.

[00:27:06] Speaker 00:
Pelley is here.

[00:27:07] Speaker 00:
I want to join in my colleagues in the court's comments about the victims of the fire.

[00:27:11] Speaker 00:
I hope everybody's okay.

[00:27:13] Speaker 00:
In light of the conversation that the panel's just had with my colleague, really just a couple points I want to make.

[00:27:18] Speaker 00:
The first one is that the appellants in their petition to the US Supreme Court, they wrote on pages 49 carrying over to 50.

[00:27:29] Speaker 00:
To be sure, even outside of board meetings, petitioners were empowered to inform the public about the district.

[00:27:39] Speaker 00:
The reason I mention that quote to you is because in the district's answering brief here,

[00:27:45] Speaker 00:
The district is trying to make it sound as though the trustees can only speak as a unified voice once the district, once the board itself has taken action, that prior to the board taking an action, there's no authority whatsoever.

[00:28:01] Speaker 03:
Well, suppose that's true.

[00:28:02] Speaker 03:
I mean, even if it's true, doesn't the language that we've been focusing on most recently in 9012A say that the elites have the authority to communicate

[00:28:13] Speaker 03:
those things, the things that the board has decided on.

[00:28:16] Speaker 03:
And that is at least some of what O'Connor Radcliffe was doing.

[00:28:19] Speaker 03:
Do you, by the way, agree that Zane is out of the cases?

[00:28:23] Speaker 00:
Yeah, it's mooters to Zane.

[00:28:25] Speaker 03:
So on her website, there are at least, there are many such entrants of things that the board actually decided.

[00:28:37] Speaker 00:
Yes.

[00:28:38] Speaker 03:
So isn't that all we need to decide?

[00:28:41] Speaker 00:
Yes, I don't.

[00:28:43] Speaker 00:
I had much longer comments, but in light of what I've heard already, I don't want to rehash it.

[00:28:49] Speaker 00:
The point I'm making here is that O'Connor Ratcliffe, she's the only one remaining, really wants to have it both ways.

[00:28:58] Speaker 00:
She wants to say that there's nothing she can do except what the board has authorized her to do.

[00:29:04] Speaker 00:
And she, in her petition to the US Supreme Court, took a contrary position.

[00:29:11] Speaker 00:
She said, even outside of board meetings, she was empowered to inform the public about the district.

[00:29:17] Speaker 00:
And she cited Education Code 35172.

[00:29:21] Speaker 00:
which was one of the statutes that was discussed previously.

[00:29:25] Speaker 00:
And I think it was Judge Friedland who pointed out subsection C of that.

[00:29:29] Speaker 00:
So at the US Supreme Court, O'Connor Ratcliffe understood Ed Code section 35172C to give authority to her as a trustee, even though the language of the statute refers to the board.

[00:29:47] Speaker 00:
That's important because, as the Supreme Court said in Linkey,

[00:29:51] Speaker 00:
Custom and usage are also factors for this panel to be looking at in deciding whether there's actual authority.

[00:30:00] Speaker 00:
So we have that there.

[00:30:02] Speaker 00:
It came from O'Connor Ratcliffe herself.

[00:30:05] Speaker 00:
The second point I want to make is that there's a lot being made about the Ralph M. Brown Act.

[00:30:11] Speaker 00:
That's the state law that says a body cannot make a decision except at a public meeting.

[00:30:18] Speaker 00:
and it has provisions, they're called the serial meeting prohibitions, but it essentially means that you can't have a majority of the members of a body conferring amongst themselves either through an intermediary or directly for the purpose of exchanging information or reaching a decision.

[00:30:39] Speaker 00:
Those decisions must be made publicly.

[00:30:42] Speaker 00:
That's true, however,

[00:30:46] Speaker 00:
In Poway, you have district representatives.

[00:30:51] Speaker 00:
These aren't five at large positions.

[00:30:53] Speaker 00:
Each trustee represents a certain, it's called a district, sorry to use the term district in two different ways, but there are five different districts.

[00:31:02] Speaker 00:
They have a defined set of constituents.

[00:31:04] Speaker 00:
It's not everybody for all five.

[00:31:07] Speaker 00:
So they have to talk to their constituents.

[00:31:10] Speaker 00:
As members of that body, they are going to be making decisions about compensation for administrators and teachers, school safety, curriculum, vaccinations, all sorts of things, whether the schools were closed or not.

[00:31:25] Speaker 00:
And those are things for which the members solicit input.

[00:31:28] Speaker 00:
They want community feedback.

[00:31:31] Speaker 00:
That is part of the job.

[00:31:33] Speaker 00:
The Sanborn case, it's Sanborn versus Chronicle publishing.

[00:31:38] Speaker 00:
I think we cite it in our brief.

[00:31:41] Speaker 00:
It recognizes that a government official's communications with the public or the press are duties incidental to the normal operations of that person's office.

[00:31:51] Speaker 03:
To me, those are extremely persuasive arguments.

[00:31:54] Speaker 03:
They were made to the Supreme Court ably by Pamela Carlin and they

[00:32:03] Speaker 03:
I mean, which is kind of strange to me, seems to be that being within the job, the legitimate job role is not the test.

[00:32:18] Speaker 03:
That they have to be, they have to have actual authority to speak on behalf of the state.

[00:32:23] Speaker 03:
And that's why I began by asking this, what's the state?

[00:32:26] Speaker 03:
Is the state the board or is the state

[00:32:28] Speaker 03:
an official.

[00:32:30] Speaker 03:
I mean, maybe it's a circular thing.

[00:32:31] Speaker 03:
If the official does have this responsibility, then speaking on behalf of themselves is speaking on behalf of the state.

[00:32:38] Speaker 03:
Because they keep using the word state, and they don't use the word any subdivision of the state.

[00:32:43] Speaker 03:
They use the word state.

[00:32:44] Speaker 03:
Usually government officials are the state.

[00:32:47] Speaker 00:
I didn't mean to speak over you.

[00:32:50] Speaker 00:
Perhaps it would help to understand it this way.

[00:32:52] Speaker 00:
School districts are subdivisions of the state in California.

[00:32:56] Speaker 00:
They are state agencies.

[00:32:58] Speaker 00:
And I think what it means, who is the state in this particular case,

[00:33:03] Speaker 00:
is the Powell Unified School District.

[00:33:06] Speaker 00:
It's a subset of the state.

[00:33:08] Speaker 00:
I don't think anybody, it's certainly not on our side of the case, and I don't think my colleague is saying that any of the members of the board are authorized to go talk about Coastal Commission issues or Department of Transportation issues.

[00:33:22] Speaker 03:
The board doesn't be there, so that's not the question.

[00:33:25] Speaker 03:
I mean, the question is why isn't a state official within their

[00:33:32] Speaker 03:
the job description to stay.

[00:33:34] Speaker 00:
So they speak as elected officials in the jurisdiction where they represent people.

[00:33:43] Speaker 05:
Council, that seems overly broad to me.

[00:33:46] Speaker 05:
Are you suggesting that any school board member can speak to the public on the board's behalf on any matter that occurs before the board?

[00:33:57] Speaker 00:
If it's at a public meeting,

[00:34:00] Speaker 00:
Yes.

[00:34:01] Speaker 00:
If it's outside of a public meeting, they can speak to anybody about anything.

[00:34:07] Speaker 00:
And I was just going to read you something on that.

[00:34:09] Speaker 00:
So maybe this is a good segue, Judge Tolman.

[00:34:12] Speaker 00:
And I'm going back to the Brown Act.

[00:34:15] Speaker 00:
Government Code Section 54952.2 B3A.

[00:34:25] Speaker 00:
And this is in the context of these serial meetings that my colleague was talking about before.

[00:34:30] Speaker 00:
It says paragraph one where it says you shall not meet outside of a public meeting.

[00:34:35] Speaker 00:
Paragraph one shall not be construed as preventing a member of the legislative body from engaging in separate conversations or communications on an internet-based social media platform to answer questions, provide information to the public,

[00:34:53] Speaker 00:
or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body, provided that a majority of the members of the legislative body do not use the platform to discuss among themselves business of a specific nature that is within their subject matter jurisdiction.

[00:35:14] Speaker 00:
In other words, the California state legislature recognizes

[00:35:20] Speaker 00:
that members of bodies are going to be having conversations with members of the public.

[00:35:27] Speaker 00:
And in particular, they even know that it's happening on social media.

[00:35:33] Speaker 05:
But that doesn't necessarily, the problem I'm having with Linkey, I think the same issue that Judge Berzon is wrestling with, it seems to draw a distinction between

[00:35:45] Speaker 05:
actual technical authority to make binding pronouncements on behalf of the board.

[00:35:53] Speaker 05:
And what I understand the Brown Act to be saying is you can't do that as an individual board member because if you start making decisions that are binding on the board in less than full board membership, that violates state law and the Open Public Meetings Act.

[00:36:12] Speaker 00:
I don't think it would violate the Public Meeting Act.

[00:36:15] Speaker 00:
I think it would violate other law because an individual doesn't have the authority to do that, even if I were to.

[00:36:22] Speaker 05:
So if that's the case, aren't they just sort of acting as the court crier, so to speak, on behalf of the school board when they're simply recounting what action was taken by the board at the public meeting that was duly convened under the auspices of the Brown Act.

[00:36:42] Speaker 00:
not always they are acting as the representative of the constituents they represent.

[00:36:49] Speaker 00:
It's not merely

[00:36:51] Speaker 00:
that they make a decision from the dais and then they go out and implement it.

[00:36:57] Speaker 00:
In fact, they're usually not the ones implementing decisions.

[00:37:01] Speaker 00:
That's what staff is for.

[00:37:02] Speaker 00:
That's what the superintendent and all the departments are for.

[00:37:05] Speaker 00:
They are policy makers.

[00:37:06] Speaker 00:
They are the ones figuring out how much should we pay a superintendent?

[00:37:10] Speaker 00:
Should we hire a superintendent who has this sort of background and experience or that sort of background and experience?

[00:37:17] Speaker 00:
Should we float bonds to build 10 new schools or one new school?

[00:37:21] Speaker 05:
But they don't have the actual authority to hire the superintendent.

[00:37:25] Speaker 05:
It is the board that hires them, I assume, by majority vote.

[00:37:30] Speaker 05:
That's correct, but we're not talking... So if the board member says to the member of the public, I think we should hire Ms.

[00:37:39] Speaker 05:
Smith to be our superintendent, that is not binding.

[00:37:43] Speaker 05:
She's not speaking on behalf of the board when she says that.

[00:37:47] Speaker 05:
until the board has acted by majority vote at a notice meeting to hire Ms.

[00:37:53] Speaker 05:
Smith and then she can repeat what the board said.

[00:37:57] Speaker 05:
Isn't that a lot worse?

[00:38:00] Speaker 00:
That may be true, Judge Talman, but when a board member says, I'm going to be considering at the next meeting whether to hire so-and-so, what do you think?

[00:38:12] Speaker 00:
Who do you think we should hire?

[00:38:13] Speaker 00:
What are your thoughts about who the next superintendent to be?

[00:38:18] Speaker 00:
And is asking for input, using a social media platform to do that, but then blocking people

[00:38:27] Speaker 00:
from whom you don't want to hear because of the comments.

[00:38:30] Speaker 05:
What if the conversation occurs at the barbecue in the backyard of the neighbor?

[00:38:36] Speaker 00:
What's the conversation?

[00:38:39] Speaker 05:
Whether or not we should hire Ms.

[00:38:41] Speaker 05:
Smith to be the superintendent.

[00:38:43] Speaker 00:
The conversation happened.

[00:38:45] Speaker 05:
Yeah.

[00:38:46] Speaker 00:
Where's the blocking?

[00:38:48] Speaker 05:
Okay, so you're drawing the distinction between excluding others from the, well, I guess the plaintiffs here would not be invited to the barbecue.

[00:39:00] Speaker 00:
Right, but if it's a barbecue at some private person's house, they didn't have a right to be there in the first place.

[00:39:05] Speaker 05:
To be there in the first place, okay.

[00:39:07] Speaker 05:
We're talking about- Let me ask you the same question I asked Mr. Shinoff.

[00:39:12] Speaker 05:
If we send this back to the district court, would the

[00:39:18] Speaker 05:
Would the, I guess now it's Ms.

[00:39:21] Speaker 05:
O'Connor, Ratcliffe have the opportunity or should she have the opportunity to ask the district court to revisit its partial summary judgment entered by Judge Whelan?

[00:39:35] Speaker 00:
She, when we did the trial, Judge Benitez did say that he wasn't going to revisit the summary judgment issues.

[00:39:43] Speaker 00:
He also said, I'm not putting any restrictions on

[00:39:47] Speaker 00:
what the trial looks like, what evidence he put forward.

[00:39:51] Speaker 00:
I think it was Judge Friedland who asked about the dates on which certain policies and bylaws were adopted and whether things look differently.

[00:39:59] Speaker 00:
I do agree with my colleague that the ones that are pertinent here, you've cited a couple of them, they haven't materially changed since they were adopted.

[00:40:10] Speaker 00:
So

[00:40:11] Speaker 00:
I actually made a note while you were having that conversation with my colleague.

[00:40:15] Speaker 00:
I don't know how the case looks any different from the record that you already have.

[00:40:20] Speaker 00:
I certainly understand why my colleague would like another bite at the apple, but it's going to be legal authorities that pertain here.

[00:40:31] Speaker 00:
We already have the evidence.

[00:40:32] Speaker 05:
Legal authorities that Judge Bonita said, I don't want to revisit because Judge Whelan has already decided the question of authority.

[00:40:41] Speaker 00:
But it's a legal question.

[00:40:43] Speaker 00:
The legal question was decided below.

[00:40:47] Speaker 00:
It's now in front of this panel.

[00:40:52] Speaker 00:
And all of the legal authorities that we would give you, you have in one.

[00:40:57] Speaker 03:
Well, it seems to me that the only possibility of what would be useful with anything would be on the other piece of what what he says is relevant, which is customs and

[00:41:11] Speaker 03:
tradition essentially.

[00:41:13] Speaker 03:
So the question is, do you have anything to say about customer usage or is there anything you would like to add?

[00:41:21] Speaker 00:
That is one of the reasons why I actually wanted to read that Brown Act provision to you as well.

[00:41:28] Speaker 00:
Even the legislature recognizes that individual members of decision-making bodies use social media platforms to communicate with the public, to solicit their input, to disseminate information.

[00:41:41] Speaker 00:
There's a statute that says that is OK under the Brown Act.

[00:41:45] Speaker 03:
But what I'm asking is, is there any evidence that might be illuminating

[00:41:51] Speaker 03:
in your favor that you could put on other than a statute to custom end usage.

[00:42:01] Speaker 00:
I think what you have, I don't think that the record would look any better on remand.

[00:42:08] Speaker 00:
What we have are the actual printouts of the social media posts from O'Connor Ratcliffe on Facebook and on Twitter.

[00:42:17] Speaker 00:
But those are already in the record.

[00:42:19] Speaker 00:
That would not change.

[00:42:22] Speaker 00:
And that shows her custom, her usage of that medium over a period of years.

[00:42:31] Speaker 00:
Combine that with a statute in the Brown Act itself

[00:42:36] Speaker 00:
that recognizes that that sort of communication is not going to be violative of the public meeting requirement.

[00:42:46] Speaker 00:
You put those things together, and I think you have ample legal authority and evidence to show that there was actual authority to communicate in this way, in addition to some of the stuff you read earlier, Your Honor.

[00:43:01] Speaker 00:
If I could just check my notes here, I want to make sure I covered

[00:43:04] Speaker 00:
The remaining issues that didn't get covered before.

[00:43:06] Speaker 00:
There was one other point about these being basically perennial campaign pages.

[00:43:15] Speaker 00:
I think that's a convenient argument, but it's also, it's really not tenable.

[00:43:23] Speaker 00:
And here's why.

[00:43:24] Speaker 00:
Number one, there is a campaign season or an election season in California.

[00:43:29] Speaker 00:
State law dictates when you can file and when you can start running for election and when you can start collecting campaign contributions.

[00:43:37] Speaker 00:
It's not a perennial campaign season in California.

[00:43:42] Speaker 00:
Secondly, that proposal or that position by O'Connor Ratcliffe doesn't take into account what you do with the trustee who's not going to run for reelection or who's turned out.

[00:43:56] Speaker 00:
Would a trustee in that position really not have to abide by a constituent's First Amendment rights?

[00:44:02] Speaker 00:
Would such a trustee be able to block somebody by saying, well, I'm not running for reelection again?

[00:44:08] Speaker 00:
But because politicians are always running for election.

[00:44:13] Speaker 00:
all of our social media posts, our campaign posts.

[00:44:17] Speaker 00:
That would just be the exception as well as the rule.

[00:44:20] Speaker 00:
I'm close to the end of my time.

[00:44:21] Speaker 00:
I didn't have any other points that hadn't been covered in comments.

[00:44:25] Speaker 00:
I'm happy to answer any remaining questions with my time left.

[00:44:28] Speaker 00:
Otherwise, I will surrender it.

[00:44:31] Speaker 02:
I guess we have this oddity that somehow we can find the 2018 board rules

[00:44:39] Speaker 02:
But a lot of the record is from before 2018.

[00:44:42] Speaker 02:
I don't think we have a Twitter post from O'Connor Radcliffe in 2018, August or beyond, which is when we have this rule.

[00:44:50] Speaker 02:
You're both saying the rules were the same, but is there a way for us to find that so we can cite it?

[00:44:55] Speaker 02:
Or is it possible for you to submit it?

[00:44:57] Speaker 02:
How would we find the 2017 board rules?

[00:45:00] Speaker 00:
I, let me go out on a wing here, on a limb here.

[00:45:03] Speaker 00:
I think my colleague and I could probably stipulate if we had a few days to do this and we could just submit for you an agreed copy of the authorities that we believe apply to the time period covered by this case.

[00:45:17] Speaker 00:
I just, I realize that you might not have everything at your fingertips, but we could probably do that for you without much effort.

[00:45:25] Speaker 00:
If the panel allowed it, I'd be happy to work with Dan and Mr. Shinoff to do that.

[00:45:31] Speaker 05:
So I don't know if Judge Talman has, I guess, I think we can take- I'm a little uncomfortable assuming the role of the fact-finder here, if the record is not complete.

[00:45:41] Speaker 03:
It's not just fact-finding.

[00:45:42] Speaker 03:
These are public rules.

[00:45:44] Speaker 03:
It's just a question of, and the current ones are publicly available.

[00:45:48] Speaker 03:
It's just that this is historical, that's the problem.

[00:45:51] Speaker 00:
And to be clear, I wasn't proposing more evidence.

[00:45:54] Speaker 00:
I was proposing giving you copies of bylaw policies.

[00:45:57] Speaker 02:
I think if it's possible to have a submission, if it could be joint, it would be great.

[00:46:02] Speaker 02:
If it can't be joint, I guess I suggest perhaps it be a motion for judicial notice.

[00:46:08] Speaker 02:
But I think it is a legal authority.

[00:46:10] Speaker 02:
So ideally, you would agree on what the law was at the time and could tell us, because it's just hard for us to find it at this point, because I think it's been removed from the website.

[00:46:20] Speaker 00:
I'd be happy to work with my colleague to do that if the panel directs me to do so.

[00:46:27] Speaker 02:
I think that would be great.

[00:46:29] Speaker 00:
If the panel is going to give that direction, I just want you to know I'm going to be gone from the 28th of January to February 10, and I won't have internet.

[00:46:38] Speaker 00:
So if you need it before, let us know.

[00:46:40] Speaker 00:
Otherwise, give me maybe a week after I get back to work with my colleagues.

[00:46:44] Speaker 03:
The representation of both of you is that the 2017 provisions and 2018 provisions are basically the same.

[00:46:52] Speaker 00:
They're substantially the same.

[00:46:54] Speaker 00:
I can't tell you they're identical, but in substance, they are the same.

[00:46:58] Speaker 03:
Oh, so yes, it would be better to have it formally submitted, but on the other hand, there's no emergency time, right?

[00:47:07] Speaker 00:
My time is up.

[00:47:08] Speaker 00:
And unless you have questions, I'm prepared to submit.

[00:47:12] Speaker 00:
Thank you, Your Honor.

[00:47:13] Speaker 02:
Thank you very much.

[00:47:14] Speaker 02:
Thank you.

[00:47:15] Speaker 02:
Let's do three minutes for rebuttal.

[00:47:18] Speaker 01:
Thank you very much.

[00:47:23] Speaker 03:
There's- Does the language that Mr. Briggs quoted in regard to a recognition by the Brown Act of the social media context, I've never quite understood your Brown Act argument anyway, but this seems to specifically take it into account, does it not?

[00:47:46] Speaker 01:
I don't believe so.

[00:47:48] Speaker 01:
Why?

[00:47:49] Speaker 01:
I believe that the Brown Act

[00:47:52] Speaker 01:
creates this sharp line in terms of when the board gets to speak.

[00:47:59] Speaker 01:
And I think that what is being proposed here is truly an over broad restriction on the First Amendment rights of board members who also happen to be private individuals.

[00:48:14] Speaker 01:
So I think that is a significant issue.

[00:48:19] Speaker 01:
And there's a reason

[00:48:21] Speaker 01:
obviously that the US Supreme Court remanded this case to the Circuit Court.

[00:48:28] Speaker 01:
And they noted in Linkey, they did that because they believed that there was an ambiguity.

[00:48:35] Speaker 01:
And I believe that the ambiguity is the issue of actual authority.

[00:48:39] Speaker 01:
Because if it was that clear, I believe that the US Supreme Court would have sided with the plaintiffs and would have said, as a matter of law,

[00:48:49] Speaker 01:
Uh, this comports with the, with the Linkey test.

[00:48:52] Speaker 01:
And I, I simply don't believe that to be the case.

[00:48:56] Speaker 01:
Um, and Mr. Briggs, his, his offer, I'm, I obviously, I would work with Mr. Briggs on providing you with that.

[00:49:06] Speaker 01:
That won't be a problem whatsoever.

[00:49:08] Speaker 01:
We'll, we'll, we'll do that jointly.

[00:49:10] Speaker 01:
Uh, Mr. Briggs is a gentleman, um, and we've always worked very well together.

[00:49:15] Speaker 01:
So the issue, it's interesting, he raised the issue of district area representatives and district area representatives is under the California Voting Rights Act and these members are part of a particular area.

[00:49:38] Speaker 01:
But there's nothing to indicate that, okay, so we have five board members

[00:49:44] Speaker 01:
Have each of them been authorized to speak and solicit information on, let's say, for example, superintendent's salary?

[00:49:51] Speaker 01:
Those issues are discussed at a board.

[00:49:55] Speaker 03:
They've been authorized, at least in the language I read you before, to do on websites some specific things, to communicate decisions that have been made by the board.

[00:50:13] Speaker 01:
Yes.

[00:50:14] Speaker 03:
And that's some of what was on this website.

[00:50:16] Speaker 03:
So why are we talking about other things at this point?

[00:50:20] Speaker 01:
So if you take a look at Linkey, I mean, Linkey said,

[00:50:25] Speaker 01:
in that particular decision, that executive doesn't lose their constitutional rights to simply repeat something that occurred someplace else.

[00:50:37] Speaker 01:
That doesn't make it state action.

[00:50:39] Speaker 01:
And I think that's an important distinction because otherwise- Where is that in the opinion?

[00:50:46] Speaker 01:
I'm sorry?

[00:50:48] Speaker 03:
Where in the opinion is that statement?

[00:50:52] Speaker 01:
In the statement about

[00:50:54] Speaker 01:
It was about the executive.

[00:50:57] Speaker 01:
It was about Mr. Fried, and it was the issue of his ability to speak on other issues that came up.

[00:51:09] Speaker 01:
I mean, there's several references in the opinion.

[00:51:15] Speaker 03:
One reference similar to what you're saying that I found was in the section about

[00:51:22] Speaker 03:
not the actual authority section, but the section about the, it must purport to use the state authority.

[00:51:34] Speaker 03:
And it seems to say that just repeating what's already been determined isn't necessarily using the authority.

[00:51:42] Speaker 03:
But there's other industries here that they're using the authority.

[00:51:46] Speaker 03:
But I didn't see anything in the actual authority discussion that referred to that.

[00:51:52] Speaker 01:
I think they do say that the focus on the appearance skips over the actual issue, which is the crucial step of actual authority.

[00:52:02] Speaker 01:
And so if this court is saying that it's as a matter of law, then it's curious to me that the Supreme Court would remand this back to the circuit court on an issue of law.

[00:52:21] Speaker 03:
Do you have any information that you would put on with regard to customer usage?

[00:52:26] Speaker 01:
Yeah, customer usage, yes, I would.

[00:52:28] Speaker 01:
In terms of customer usage, I would put on information.

[00:52:31] Speaker 01:
I would put on evidence about the superintendent and the superintendent's designee being responsible to provide that information and communicate with the public.

[00:52:42] Speaker 01:
communicate about events and have these robust discussions and solicit information on behalf of all board members because it doesn't serve the board

[00:52:54] Speaker 01:
at all for one board member to have a piece of information.

[00:52:59] Speaker 01:
That's why you have a public meeting.

[00:53:02] Speaker 01:
At that public meeting, the public has a right to speak to matters that are within the jurisdiction of the district, but they also have the opportunity to speak to any matter that's on the agenda.

[00:53:16] Speaker 01:
And so if what's on the agenda is the superintendent's salary, they have an opportunity to speak to that.

[00:53:22] Speaker 01:
And the majority of the board gets to hear that information simultaneously.

[00:53:27] Speaker 01:
Otherwise, you have people that are working on different pieces of information.

[00:53:33] Speaker 01:
And that doesn't serve to benefit the board.

[00:53:37] Speaker 03:
You have it down there.

[00:53:39] Speaker 03:
During some of Alcona Ratcliffe's website has surveys about subjects, one or more.

[00:53:50] Speaker 03:
Do we know whether those are her surveys or surveys put out by the board?

[00:53:54] Speaker 03:
Do we know?

[00:53:55] Speaker 01:
I do not know.

[00:53:56] Speaker 01:
I don't want to misrepresent anything to the court.

[00:54:04] Speaker 01:
I would assume they aren't, but I don't know.

[00:54:09] Speaker 01:
Aren't what?

[00:54:11] Speaker 01:
I assume that they are not her surveys, but I'm strictly guessing.

[00:54:18] Speaker 03:
Well, if they in fact are surveys that the board puts out and says, you know, we want to gather this information, how would they get to people other than through their representatives?

[00:54:33] Speaker 01:
Through the district social media site that's overseen by the superintendent and the superintendent's designee.

[00:54:39] Speaker 01:
The superintendent is the spokesperson for the district and that social media site serves a very particular purpose.

[00:54:48] Speaker 01:
I mean, I know that it may not be of any consequence to this court, but there's no indication that the board had any control over the website of TJ Zane or Michelle O'Connor Radcliffe.

[00:55:02] Speaker 01:
There were no funds provided to support it.

[00:55:05] Speaker 01:
No staff time provided to support it.

[00:55:08] Speaker 01:
This isn't independent, in my opinion.

[00:55:11] Speaker 01:
These are independent web pages that don't have the indicia of state action.

[00:55:24] Speaker 02:
My colleagues have other questions?

[00:55:27] Speaker 02:
OK.

[00:55:28] Speaker 02:
Well, thank you both for these very helpful arguments.

[00:55:30] Speaker 02:
This case is submitted, and we really appreciate your advocacy.

[00:55:34] Speaker 02:
And we are adjourned for the day.

[00:55:36] Speaker 00:
Thank you, Your Honor.

[00:55:36] Speaker 00:
Have a good weekend.

[00:55:38] Speaker 02:
Thank you.

[00:55:38] Speaker 01:
May I just ask one question?

[00:55:41] Speaker 01:
Mr. Briggs made a very gracious offer, and I'm happy to provide that with Mr. Briggs' help.

[00:55:49] Speaker 01:
Would that be beneficial to the court?

[00:55:52] Speaker 02:
It would be.

[00:55:53] Speaker 02:
If you could tell us the laws that governed at the time, it would be very helpful.

[00:55:56] Speaker 02:
Thank you.

[00:55:57] Speaker 01:
We will do that.

[00:55:57] Speaker 02:
Thank you both.

[00:55:58] Speaker 02:
And we really appreciate your cooperation.

[00:56:00] Speaker 02:
And it doesn't seem urgent.

[00:56:01] Speaker 02:
So if you need to do it after the vacation, that's also fine.

[00:56:04] Speaker 01:
Thanks, Janet.

[00:56:06] Speaker 02:
Thank you very, very much.

[00:56:07] Speaker 01:
Thank you.

[00:56:09] Speaker 02:
This clerk for this session stands adjourned.