[00:00:00] Speaker 03:
Can you hear me okay?

[00:00:01] Speaker 03:
Nope.

[00:00:02] Speaker 03:
You're going to need to come closer or speak up.

[00:00:04] Speaker 02:
Okay.

[00:00:05] Speaker 02:
Can you hear me now?

[00:00:06] Speaker 03:
Barely.

[00:00:08] Speaker 02:
My voice is a little raspy.

[00:00:10] Speaker 02:
Do you want some water?

[00:00:17] Speaker 02:
That might help.

[00:00:17] Speaker 03:
Does that help?

[00:00:18] Speaker 03:
Yeah.

[00:00:19] Speaker 03:
Just try to keep your voice up and we'll let you know if we can't hear you.

[00:00:21] Speaker 02:
Excuse me.

[00:00:23] Speaker 02:
My name is Van Pounds.

[00:00:24] Speaker 02:
I'm the plaintiff appellant in this case, and I'd like to reserve two minutes for rebuttal if possible.

[00:00:31] Speaker 03:
You may, but you'll want to look at the clock in front of you to keep your own time.

[00:00:35] Speaker 03:
I'll remind you if you get off track, but otherwise it's your responsibility to keep track of your time.

[00:00:41] Speaker 02:
Okay, thank you, Your Honor.

[00:00:42] Speaker 02:
This case stems from defendants' disclosure of a secret derogatory report in reaction to my filing as a candidate for judicial office.

[00:00:54] Speaker 02:
Defendants say that they were disclosing the report merely in response to a newspaper reporters public records request.

[00:01:03] Speaker 02:
But the overwhelming evidence demonstrates that that was not true.

[00:01:10] Speaker 02:
The reporter's public records request asked for documentation that explained my demotion and pay cut.

[00:01:19] Speaker 02:
But I had never been demoted.

[00:01:21] Speaker 02:
And the report that they disclosed, I was completely unaware of its existence.

[00:01:25] Speaker 02:
Nobody had ever given me notice of that.

[00:01:30] Speaker 04:
Given your notice of the report, you obviously knew that your position had changed and that your salary had been reduced by some small amount.

[00:01:37] Speaker 02:
Yes, Your Honor, but it wasn't as a result of a demotion.

[00:01:40] Speaker 04:
But you know what had happened to you, you just didn't know about the report.

[00:01:44] Speaker 02:
Correct, Your Honor.

[00:01:46] Speaker 02:
When they disclosed the report, they gave the impression that it was explaining a disciplinary action, and I had never been disciplined at all.

[00:01:56] Speaker 02:
And the evidence adduced after that, clearly the defendants in this case admitted numerous times, they confirmed that the report was not responsive, it did not match with the public records request.

[00:02:13] Speaker 02:
If you look back to Defendant Light's March 26, 2018 email where he confirmed there was no match.

[00:02:22] Speaker 02:
On the first appeal of this case, defendants admitted that I was not demoted and that there was no adverse action ever taken against me as a result of the report.

[00:02:35] Speaker 01:
potential positions on their part.

[00:02:37] Speaker 01:
First there's no adverse action and then they say there is, right?

[00:02:41] Speaker 02:
Well, that came very late in the game, Your Honor.

[00:02:44] Speaker 01:
Right.

[00:02:45] Speaker 02:
I mean, DCBS, the employing agency, in deposition

[00:02:52] Speaker 02:
DCBS confirmed that not only that I had never been disciplined, but that I had never been negatively affected as a result of the secret report, and that there was no causal connection between either of my subsequent job changes.

[00:03:08] Speaker 02:
And that should be dispositive.

[00:03:10] Speaker 02:
That's the employing agency.

[00:03:11] Speaker 02:
And defendant lied on deposition, testified that no action was taken against me as a result of the secret report.

[00:03:19] Speaker 02:
and that my employment status had never changed as a result of the report.

[00:03:25] Speaker 02:
Now, significantly, right after that, he tried to change his testimony after conferring with defense counsel, and apparently at the behest of defense counsel, he tried to say, oh well, it really was secretly used against you, you know, but when pressed on that, there was no foundation

[00:03:45] Speaker 02:
no foundation at all to that newfound belief.

[00:03:49] Speaker 02:
And as a matter of fact, it's contradicted by his March 26, 2018 email.

[00:03:54] Speaker 04:
What was the sequence in time?

[00:03:56] Speaker 04:
between the time of compiling the information that was then included in the report and your job change that resulted in a slight decrease in salary?

[00:04:06] Speaker 04:
What's the timing relationship between those two things?

[00:04:09] Speaker 02:
It's years apart, Your Honor.

[00:04:11] Speaker 02:
The secret report was created in May of 2015.

[00:04:16] Speaker 02:
I did a job rotation as part of the department's reorganization, because divisions were being combined.

[00:04:23] Speaker 02:
I actually rotated out of a position, and my boss rotated into my position.

[00:04:26] Speaker 02:
And that was in November of 2015.

[00:04:29] Speaker 02:
So the report was created in May of 2015.

[00:04:33] Speaker 02:
My job rotation was in November of 2015.

[00:04:37] Speaker 02:
And then my subsequent, I actually applied for at the end of the job rotation, I applied for a senior policy analyst position.

[00:04:45] Speaker 02:
was selected for that in April of 2017.

[00:04:48] Speaker 02:
So that's almost two years later.

[00:04:53] Speaker 04:
But the two events in 2015, your job

[00:04:58] Speaker 04:
The job reassignment, was that the job reassignment that resulted in your very slight decrease in salary?

[00:05:04] Speaker 02:
No, your honor.

[00:05:05] Speaker 04:
Okay, so when did that happen?

[00:05:06] Speaker 01:
It was the analyst position.

[00:05:07] Speaker 02:
That happened in April of 2017.

[00:05:09] Speaker 02:
Got it, okay.

[00:05:10] Speaker 01:
So I wanted to focus in terms of the constitutional question you presented.

[00:05:21] Speaker 01:
I've read varying statements in the briefs, but it would help, I think, for me to have you illuminate what exactly was the clearly established right that you view as being violated.

[00:05:38] Speaker 02:
Actually, there's a number of cases, and I think you've read... Tell me the right, and then we'll get to the cases.

[00:05:43] Speaker 02:
Okay, Your Honor.

[00:05:45] Speaker 02:
I had a right, a clearly established right, to speak out as a private citizen on a matter of public concern.

[00:05:55] Speaker 02:
That had been established since Pickering.

[00:05:57] Speaker 04:
But what you're objecting to is the release of the report.

[00:06:00] Speaker 04:
Did you have a right to have that report not released in response to the inquiry?

[00:06:05] Speaker 02:
Yes, your honor.

[00:06:07] Speaker 01:
Okay, so where is that coming from?

[00:06:09] Speaker 01:
I understand the pickering argument about you can obviously go out and speak and then that has a whole host of things.

[00:06:16] Speaker 01:
But as Judge Fletcher points out, the focus of the litigation is the report and the report being released to two different locations, one to the reporter and one to the governor.

[00:06:28] Speaker 01:
So let's just take the reporter.

[00:06:30] Speaker 01:
What was the clearly established right

[00:06:36] Speaker 01:
to prevent that report being disclosed to the reporter.

[00:06:43] Speaker 02:
Right.

[00:06:43] Speaker 02:
I think this court could look at Kozalter versus... No, tell me the right.

[00:06:48] Speaker 02:
Oh, I'm sorry.

[00:06:49] Speaker 01:
You see, we've got to get the right defined and then we can do what I think you want to do is tell us about the cases.

[00:06:54] Speaker 02:
Well, I think the right to speak as a private citizen matter of public concern is the right, but the defendants were clearly on notice that even a minor act of retaliation

[00:07:06] Speaker 02:
would be unlawful if it would reasonably likely to deter protected speech.

[00:07:14] Speaker 02:
And I was engaging in protected speech.

[00:07:16] Speaker 02:
I was running as a candidate for judicial office.

[00:07:20] Speaker 02:
And I was speaking out against the way that judges had been selected.

[00:07:24] Speaker 02:
They were being unilaterally selected by one person.

[00:07:27] Speaker 02:
I was speaking out on that.

[00:07:29] Speaker 03:
And so I had a white- So it was your contention that you're right at that

[00:07:34] Speaker 03:
point was to not have them release any records in response to the public records request?

[00:07:41] Speaker 02:
Well, my right was that they could not interfere with my speech in a manner that would deter protected speech.

[00:07:51] Speaker 03:
Okay, so tell me how the release of the report in response to a public records request infringes on that right.

[00:07:59] Speaker 02:
Well, Your Honor, it wasn't in response to the public records request.

[00:08:02] Speaker 02:
I think that's one point there, is it wasn't in response.

[00:08:07] Speaker 02:
It was merely a pretext.

[00:08:09] Speaker 02:
It was a pretext because they've admitted that it didn't match up with the request.

[00:08:13] Speaker 03:
Okay, so your point is that it wasn't responsive.

[00:08:15] Speaker 03:
It was not responsive to the records request.

[00:08:17] Speaker 03:
You're saying they over responded, in effect.

[00:08:20] Speaker 02:
Way over responded.

[00:08:22] Speaker 03:
If the report was responsive to the records request, let's just assume for purposes of my question that it was responsive,

[00:08:29] Speaker 03:
Would you still have a First Amendment claim?

[00:08:33] Speaker 02:
Good question.

[00:08:35] Speaker 03:
Well, thank you.

[00:08:37] Speaker 03:
Can you answer?

[00:08:38] Speaker 02:
Your Honor, I mean, in this case, what you're asking is if it was true.

[00:08:41] Speaker 02:
If it was true.

[00:08:42] Speaker 03:
If it was responsive.

[00:08:44] Speaker 03:
I'm trying to understand, as I think you've received a number of questions from the panel, what exactly is the right?

[00:08:51] Speaker 03:
And my question really goes at trying to

[00:08:56] Speaker 03:
If it was responsive to the request, I'm trying to define the right by understanding what it wouldn't be.

[00:09:03] Speaker 03:
So this is why I'm asking this question.

[00:09:05] Speaker 03:
If it was responsive to the request, would you still have a First Amendment?

[00:09:08] Speaker 02:
Frankly, I've never analyzed in that way, Your Honor, because it's clearly not responsive to the request.

[00:09:14] Speaker 03:
Okay, so that is critical to your argument about the right... Well, I think that's the gist of it right there, Your Honor.

[00:09:21] Speaker 01:
I mean, if I'd been on... And that's the retaliation factor you're saying is because it's not responsive.

[00:09:26] Speaker 02:
It was not responsive on this.

[00:09:28] Speaker 02:
I mean, if I'd been on notice that it existed, if I'd been given a chance to respond to it, I mean, you know, we'd be in a different situation.

[00:09:37] Speaker 03:
If I'd been given a chance... Every time there's a public records request that gets made,

[00:09:44] Speaker 03:
I'm trying to understand the practical consequences of your expansive definition of the right here that would require a government agency to consider what litany of things with respect to responding to public records requests would they have to go through to ensure that they're not violating a First Amendment right.

[00:10:06] Speaker 03:
I mean, I've never seen anything so expansively defined.

[00:10:09] Speaker 03:
And that's part of our problem on the qualified immunity question is we need to be able to look at something that says not only is this a right, but that we have case law that says it's a clearly established right.

[00:10:25] Speaker 02:
Well, in this case, I think it's significant, Your Honor.

[00:10:28] Speaker 02:
The defendants had three weeks to consider their course of conduct.

[00:10:33] Speaker 02:
Three weeks, during which time they had the opportunity to consult with legal counsel.

[00:10:38] Speaker 02:
Apparently, they did.

[00:10:40] Speaker 02:
But since then, they've refused to disclose the full extent of their deliberations.

[00:10:46] Speaker 02:
They tried to hide behind claims of attorney-client privilege, but they had three weeks.

[00:10:49] Speaker 02:
This was not like a police officer's situation where they have to make an immediate choice.

[00:10:56] Speaker 02:
They had plenty of time to discuss this and to deliberate on it.

[00:11:00] Speaker 04:
But does that cut for you or against you?

[00:11:03] Speaker 04:
That is to say, they thought about it.

[00:11:05] Speaker 04:
And after having thought about it, they released the report.

[00:11:10] Speaker 04:
And they might have made a mistake, but we're talking qualified immunity.

[00:11:16] Speaker 02:
Well, Your Honor, if it was in their favor, I submit that they would disclose it.

[00:11:22] Speaker 02:
This is something that, if it helped them, if their legal advice helped them,

[00:11:27] Speaker 02:
Why not show it?

[00:11:28] Speaker 04:
You know, I'm not talking about what the legal advice was.

[00:11:31] Speaker 04:
I'm talking about the fact that you're now talking about was to say they sought legal advice, they thought about it, and then they acted.

[00:11:42] Speaker 04:
So that suggests to me that they're trying to

[00:11:46] Speaker 04:
obey whatever the legal requirements are.

[00:11:49] Speaker 04:
They might have made a mistake, I get that, but it sounds as though they thought about it and decided it was okay.

[00:11:58] Speaker 02:
Well, actually I think it may cut the other way, Your Honor.

[00:12:02] Speaker 02:
It actually shows very clearly their intent on this.

[00:12:05] Speaker 02:
They had plenty of time to consider it and they still did it.

[00:12:08] Speaker 02:
They knew that it didn't match with the request

[00:12:12] Speaker 02:
Defendant lights email on March 26 confirms that.

[00:12:15] Speaker 02:
The testimony during depositions confirms that.

[00:12:19] Speaker 02:
The admissions on the previous appeal in the case confirmed that.

[00:12:23] Speaker 02:
So the fact that they had plenty of time to consider it shows that they served their retaliatory dish very cold.

[00:12:30] Speaker 02:
They were very cold when they did this.

[00:12:32] Speaker 01:
And point of fact... So let me see if I can define the right that I think you're talking about.

[00:12:40] Speaker 01:
It seems to be it would be...

[00:12:43] Speaker 01:
that the over-disclosure resulted, was in effect, an act of retaliation to deter protective speech.

[00:12:57] Speaker 01:
Would that be accurate?

[00:12:58] Speaker 02:
That is absolutely correct, Your Honor.

[00:13:00] Speaker 01:
So now, we'll go to part two, which I know you were anxious to get to.

[00:13:04] Speaker 01:
What cases would best support that as a clearly established right?

[00:13:13] Speaker 02:
Well, if you were looking at only one case, I might point to Ulrich versus City and County of San Francisco.

[00:13:19] Speaker 02:
I mean, you're not going to find, I don't think you'll, I couldn't find, and I don't think you'll find a case that's going to be identical with this or closely identical to this.

[00:13:29] Speaker 02:
Because I would submit that no reasonable public official would have done what the defendants did in this case.

[00:13:36] Speaker 02:
If they had, maybe they'd have some precedent, but I don't think any reasonable official would have done what they did on this.

[00:13:44] Speaker 01:
Let me take what I think is the Ulrich case, and quite a big difference there.

[00:13:48] Speaker 01:
That really is kind of an internal situation with respect to claimed professional

[00:13:58] Speaker 01:
competence and then whether they rescinded or didn't rescind the job privileges, et cetera.

[00:14:04] Speaker 01:
So I was having trouble linking that up with what we just now defined as the right.

[00:14:10] Speaker 02:
The closest link would be the fact that they actually disclosed in Ulrich an investigation and that they used that to mar the plaintiff's employment record.

[00:14:22] Speaker 02:
And that's about the closest I saw.

[00:14:24] Speaker 02:
I mean, here's a situation where it's a secret report, secretly prepared, three years in advance, no action ever taken against me.

[00:14:33] Speaker 02:
They pull it out, they dust it off.

[00:14:35] Speaker 02:
And they disclose it to a newspaper reporter.

[00:14:38] Speaker 02:
And that newspaper reporter writes up an article that says, I'm the least credible person in the unit.

[00:14:44] Speaker 02:
The state says that I'm the least credible person in the unit.

[00:14:49] Speaker 02:
What do you think happened to my candidacy after that?

[00:14:53] Speaker 01:
So my question, as I was reading through this, is why you didn't bring other claims as well, such as a privacy claim.

[00:15:01] Speaker 01:
with respect to your employment records or a defamation claim or some other claim.

[00:15:08] Speaker 02:
I did bring a due process claim, Your Honor.

[00:15:10] Speaker 01:
I understand you brought due process, but you didn't bring any what we might consider more common law rights or a challenge to the disclosure under the public records disclosure, right?

[00:15:24] Speaker 02:
I did raise some of those arguments initially, but those were all viewed to be state law claims, and so the court knocked those out on that.

[00:15:35] Speaker 02:
And so I was left with the due process claim in the First Amendment claims.

[00:15:40] Speaker 02:
due process claim that knocked out.

[00:15:42] Speaker 02:
So here I am with the First Amendment claim.

[00:15:45] Speaker 02:
So it seemed like it's gotten whittled down over time.

[00:15:48] Speaker 02:
But the bottom line is, in this case, the defendants did wrong and they need to be held accountable and they should not be able to hide behind qualified immunity.

[00:16:01] Speaker 03:
Thank you, counsel.

[00:16:02] Speaker 03:
I will put a couple minutes on your clock for rebuttal since you're out of time.

[00:16:07] Speaker 03:
I'm sorry.

[00:16:07] Speaker 03:
No, that's okay.

[00:16:08] Speaker 03:
We'll hear from you again after we hear argument from the opposing counsel.

[00:16:13] Speaker 03:
Thank you.

[00:16:19] Speaker 00:
Excuse me.

[00:16:20] Speaker 00:
Good morning.

[00:16:20] Speaker 00:
May I please record Pinesha for the state defendants asking this court to affirm?

[00:16:26] Speaker 00:
A plaintiff here seeks damages from state officials because he disagrees with how they responded to a valid public records request from a reporter.

[00:16:33] Speaker 00:
But the undisputed facts show established that the disclosed records were at least colorably responsive to the reporter's request.

[00:16:39] Speaker 00:
And the undisputed facts also established that the relevant decision makers concluded as much after taking a close look at the question of responsiveness.

[00:16:48] Speaker 00:
And that's precisely the kind of decision on a close question that is entitled to qualified immunity, regardless of whether the ultimate conclusion was right or wrong.

[00:16:56] Speaker 00:
Because these public officials took a close look at a close question and complied with what they believed the state law required them to do.

[00:17:04] Speaker 00:
And that kind of decision making is what qualified immunity is supposed to protect.

[00:17:10] Speaker 00:
In my view, that's sort of the crux of the case.

[00:17:13] Speaker 00:
I mean, I think my understanding is that plaintiff's view is perhaps it should be different because the summary judgment record supports an inference of personal animus towards plaintiff.

[00:17:21] Speaker 00:
But there's no personal animus exception to the public records disclosure.

[00:17:26] Speaker 00:
And so even if we accept plaintiff's view of the facts, these public officials, when faced with a public records request and something that was colorably responsive, I think very responsive in my view,

[00:17:38] Speaker 00:
had no choice but to disclose it.

[00:17:40] Speaker 04:
So what happens if I were to conclude that in fact they responded inappropriately in releasing this report?

[00:17:49] Speaker 00:
Inappropriately meaning over inclusively, Your Honor?

[00:17:51] Speaker 04:
No, that it was not in fact responsive to the request.

[00:17:54] Speaker 04:
So assume that we're operating on that proposition and second that they're doing it with animus.

[00:18:05] Speaker 04:
What then?

[00:18:06] Speaker 04:
Where are we?

[00:18:07] Speaker 00:
So I guess the first part of your question, Your Honor, whether it was responsive or not, in some ways it doesn't matter whether in fact it was responsive.

[00:18:14] Speaker 00:
What matters is whether all reasonable officials would have viewed it as non-responsive.

[00:18:18] Speaker 00:
I think in order to rule against qualified immunity, Your Honor would have to conclude that all reasonable officials would have viewed this as non-responsive, not just that you view it as non-responsive.

[00:18:26] Speaker 00:
And I don't think the record supports that.

[00:18:28] Speaker 00:
and ask for personal animus.

[00:18:31] Speaker 00:
Again, even if you accept plaintiff's view that there was some personal animus mixed in here, which we dispute, but even if you accept that view, the state public records law does not authorize us to withhold public records in that situation.

[00:18:46] Speaker 00:
The public records are disclosable no matter what.

[00:18:48] Speaker 03:
An obligation to check or share your response with the subject of a public records request prior to responding?

[00:18:58] Speaker 00:
I don't think that there's a state law obligation to.

[00:19:00] Speaker 00:
The record suggests that sometimes this agency, as a courtesy, does do that.

[00:19:04] Speaker 00:
And I believe we did do that here, Your Honor.

[00:19:08] Speaker 01:
You did it afterwards, right?

[00:19:11] Speaker 01:
You disclosed the report.

[00:19:14] Speaker 00:
Before we disclosed the report, I think what happened was there was the first question from the reporter that asked about sort of salary history, job title, rotation history.

[00:19:21] Speaker 00:
We did not let him know before we responded to that.

[00:19:23] Speaker 00:
There was a second request from the reporter.

[00:19:25] Speaker 00:
asking for information relating to the reasons for these rotations and so forth.

[00:19:30] Speaker 00:
Before releasing the report that we viewed responsive to that request, we did speak with plaintiff.

[00:19:36] Speaker 00:
And this is when we offered him a name clearing hearing.

[00:19:38] Speaker 00:
He made a response that we interpreted as rejecting the name clearing hearing, and then we went forward.

[00:19:46] Speaker 01:
Even though, in a way, the report

[00:19:54] Speaker 01:
At one point, you took the position it didn't result in any adverse action, and then later it seemed to me the state changed its position and said, no, no, it's an adverse action.

[00:20:03] Speaker 01:
So that's one separate question I'd like you to address.

[00:20:06] Speaker 01:
But secondly, is there no exception within the Oregon public records law

[00:20:18] Speaker 01:
that would permit the state to not disclose this information because at this point it's a preliminary report on somebody's employment.

[00:20:30] Speaker 00:
So your first question, your honor, sort of two answers.

[00:20:34] Speaker 00:
One is that we had to accept that there was no demotion because

[00:20:38] Speaker 00:
at the pleading stage, which is when the first appeal came through, plaintiff alleged that he had never been disciplined.

[00:20:44] Speaker 00:
And the record wasn't, the report wasn't in the record.

[00:20:47] Speaker 00:
We knew that this report existed, but it wasn't in the record.

[00:20:50] Speaker 00:
All we knew was plaintiff's allegations that he had never been disciplined.

[00:20:53] Speaker 00:
So we had to accept that.

[00:20:55] Speaker 00:
And in truth, the way I've looked back in response to plaintiff's allegation at the arguments that I made both orally and in briefing and consistently with the way that I remember it is that I was agnostic about whether the job rotation was a demotion.

[00:21:10] Speaker 00:
To the extent that we said there was no adverse employment action, we were pointing out that there was no adverse employment action in relationship to his

[00:21:17] Speaker 00:
candidacy for public office, which happened many years later.

[00:21:20] Speaker 00:
When I kept hammering that there was no adverse action, I said there was no adverse action.

[00:21:27] Speaker 00:
He suffered no change in his employment after he declared candidacy, because to us that was the key issue.

[00:21:33] Speaker 00:
And then as to whether he had a demotion when this report was released, I tried to be agnostic about it because I had to accept the allegations and the pleadings, not with saying the fact that I didn't believe that to be true.

[00:21:49] Speaker 00:
That's how I explain what plaintiff views as a change in position, Your Honor.

[00:21:53] Speaker 00:
And then as to whether state public records law allows us to withhold records in this instance, I'm aware of no statutory provision to that effect.

[00:22:05] Speaker 00:
Plaintiff doesn't cite any.

[00:22:06] Speaker 01:
Every single record for a state public employee that relates to their job, whether it's promotion, demotion,

[00:22:19] Speaker 01:
just daily, monthly, yearly reviews of performance.

[00:22:25] Speaker 01:
That's all public record in your view.

[00:22:28] Speaker 00:
There are a number of exceptions for confidential matters and a number of other exceptions specifically laid out in ORS chapter, I think it's 192, but none of them are applicable to the circumstances your honor identified.

[00:22:40] Speaker 01:
Here you have an investigation, a report that the individual was never apprised of.

[00:22:49] Speaker 01:
until it was disclosed.

[00:22:53] Speaker 01:
And that, in your view, a mere investigation undertaken by a state agency employing a public official, there's no way to or exception that would prevent you from disclosing that in your view.

[00:23:10] Speaker 00:
Not that I'm aware of, Your Honor, because ultimately the question is do these records exist?

[00:23:14] Speaker 00:
And they do.

[00:23:15] Speaker 00:
You know, whether there's an objection to how those records were compiled, maybe it supports some other kind of claim, I'm not sure about that, but the records exist, we have an obligation to disclose them.

[00:23:26] Speaker 04:
I'm not quite sure how this case comes out, but I do have to say I'm somewhat sympathetic with Mr. Pounds.

[00:23:34] Speaker 04:
A report was prepared that was unfavorable to him.

[00:23:36] Speaker 04:
He knew nothing about it.

[00:23:39] Speaker 04:
he decides to run for public office, then because of inquiry from the newspaper, a report that he knew nothing about, that's unfavorable to him, that says some pretty nasty things about him, all of a sudden is revealed.

[00:23:56] Speaker 04:
I'm not sure what kind of a cause of action we have, but that's not very nice behavior.

[00:24:02] Speaker 00:
It's certainly unpleasant.

[00:24:04] Speaker 00:
Your Honor, to say that it's not nice behavior, I guess I don't accept the idea that there was some sort of animus baked into this.

[00:24:11] Speaker 00:
But I appreciate that this is not a situation that's pleasant for Mr. Pounds.

[00:24:16] Speaker 04:
Well, it's a secret report as far as he's concerned.

[00:24:20] Speaker 04:
And you give him a very short time to decide whether or not it should be released.

[00:24:25] Speaker 04:
And you don't quite give him an opportunity to say, don't release it.

[00:24:29] Speaker 04:
You offer him an opportunity for some further hearing.

[00:24:34] Speaker 04:
I don't think he's been treated very well, frankly.

[00:24:38] Speaker 00:
I hear what you're saying, Your Honor.

[00:24:39] Speaker 00:
And I think the message has already been received by the relevant state actors.

[00:24:44] Speaker 00:
I will relay this concern as well.

[00:24:47] Speaker 00:
That being said,

[00:24:50] Speaker 00:
He had an opportunity for a name clearing hearing.

[00:24:53] Speaker 01:
So the opportunity for a name clearing hearing came after the disclosure?

[00:24:59] Speaker 00:
Before the disclosure, Your Honor.

[00:25:00] Speaker 00:
Before the disclosure.

[00:25:01] Speaker 00:
Correct, Your Honor.

[00:25:02] Speaker 01:
And would you have then responded to the public records request that you couldn't disclose it because of a pending matter?

[00:25:13] Speaker 01:
Tell me what the sequence would be.

[00:25:14] Speaker 00:
So I think we would still have to disclose what we disclosed.

[00:25:19] Speaker 00:
The purpose of the name clearing hearing is to comply with due process requirements.

[00:25:23] Speaker 00:
And because the appeal here doesn't involve a due process claim, I'm not prepared to speak as intelligently as I would about that if this did have that.

[00:25:31] Speaker 01:
Trying to understand, the name clearing hearing would seem to be kind of a nougatory remedy for him.

[00:25:43] Speaker 01:
And I just wanted to understand, you would still make the disclosure, but then he could

[00:25:49] Speaker 01:
in parallel, now we've disclosed, have a name clearing hearing.

[00:25:53] Speaker 00:
And that name clearing hearing would result in other records that could be disclosed in parallel.

[00:25:56] Speaker 04:
And this of course would, whatever name clearing hearing and whatever result we have would, I suspect, be after the election.

[00:26:06] Speaker 04:
There's to say it wouldn't do him a darn bit of good with respect to the election that he's now running for office.

[00:26:12] Speaker 00:
Like a speed result.

[00:26:13] Speaker 00:
I'm not sure about the timing, Your Honor.

[00:26:14] Speaker 00:
But again, this idea of a name clearing hearing is a due process question.

[00:26:17] Speaker 04:
It doesn't take much of an imagination to suspect that by the time you get an answer to a name clearing hearing, after there has been a report that he was, whatever those bad words were about him, that you can undo the damage with respect to the election.

[00:26:35] Speaker 00:
You know, the record is unclear as to what the timing of that name clearing hearing would have been, but there are some dates about sort of a two-day time frame.

[00:26:45] Speaker 04:
How far in advance of the election was this report released?

[00:26:53] Speaker 00:
I'm sorry, Your Honor, I'm not sure the answer to that question.

[00:26:56] Speaker 00:
I think it was relatively far in advance because it happened very soon.

[00:26:59] Speaker 00:
The reporter's request came within days or weeks of when Mr. Powell has declared his candidacy, which would have had to have been well before the election.

[00:27:07] Speaker 00:
And I want to return to this idea of this name clearing hearing.

[00:27:10] Speaker 00:
Again, the name clearing hearing is germane to a due process claim, which is not before this court.

[00:27:15] Speaker 00:
It doesn't bury a relationship to a First Amendment claim.

[00:27:18] Speaker 01:
No, but it bears a relationship to the chronology of the release.

[00:27:23] Speaker 00:
Right, right.

[00:27:24] Speaker 00:
And what I'm saying is, I don't think that due process prevents a state employer from putting negative material in somebody's personnel file or saying negative things about their job performance.

[00:27:37] Speaker 00:
but what it does perhaps require is a name clearing hearing.

[00:27:39] Speaker 00:
I'm not saying it does because I'm not prepared to talk intelligently right now about due process, but I know that

[00:27:43] Speaker 00:
Name clearing is a concept that's germane to due process.

[00:27:46] Speaker 00:
And the way I understand that to work is that allows other information to come into the public record so that anybody who looks at these records will get a two-sided picture.

[00:27:57] Speaker 00:
And that's what due process provides, because due process doesn't prevent state employers from taking negative personnel actions.

[00:28:03] Speaker 00:
Instead, there is this other process to make sure that there is a two-sided picture.

[00:28:07] Speaker 01:
So he had made two allegations, one having to do with the disclosure to the reporter,

[00:28:12] Speaker 01:
and the other to the governor.

[00:28:14] Speaker 01:
Did any, the fact that this report went to the governor, was there any negative or downside vis-a-vis Mr. Pounds or did it just sort of sit over there in the governor's office?

[00:28:27] Speaker 00:
I'm not aware of any evidence that there was any sort of damage to Mr. Pounds as a result of that specific action.

[00:28:36] Speaker 00:
I suspect maybe what he would like to suggest is that this impacted his election or his candidacy in some way that perhaps the governor's office may have done something with this information in a way that affected his candidacy.

[00:28:49] Speaker 00:
I understand that to be what he's gesturing at, but I'm not aware of any evidence to that effect.

[00:28:53] Speaker 00:
Thank you.

[00:28:58] Speaker 00:
So unless the court has any other questions, I just want to repeat that we had public officials faced with a very close question here.

[00:29:04] Speaker 00:
And qualified immunity protects them in making these types of difficult decisions on close issues.

[00:29:11] Speaker 00:
And for that reason, the district court ruled correctly.

[00:29:13] Speaker 03:
Thank you.

[00:29:14] Speaker 00:
Thank you.

[00:29:14] Speaker 00:
We ask the court to affirm.

[00:29:22] Speaker 02:
Thank you, Your Honor.

[00:29:24] Speaker 02:
Just to clear up a couple of things, I was running as a candidate against the governor's appointee.

[00:29:30] Speaker 02:
I think that's significant.

[00:29:32] Speaker 02:
And the defendants knew that when they disclosed it to the governor's office, and they knew that when they disclosed it to the newspaper reporter.

[00:29:39] Speaker 01:
But what... Well, let's just separate out the governor and disclosure to the governor.

[00:29:47] Speaker 01:
What impact did that have, are you alleging, from a constitutional standpoint?

[00:29:52] Speaker 02:
Well, I think you have to look at the intent, Your Honor.

[00:29:56] Speaker 02:
This was basically giving my opponent, the governor's appointee, ammunition.

[00:30:02] Speaker 01:
I mean, they didn't know that... Get that from the public disclosure.

[00:30:06] Speaker 01:
It didn't have anything to do with the governor himself.

[00:30:10] Speaker 02:
Well, as far as what was actually done with it, they haven't disclosed that yet.

[00:30:16] Speaker 02:
I mean, they've closed off any communications to the governor's office because it was to the governor's general counsel and they say that's privileged, so they won't tell exactly what happened there.

[00:30:27] Speaker 02:
The name clearing hearing in this case, after I objected to the disclosure, they came back and tried to undermine any due process claim I had with an offer of a name clearing hearing, which basically said that you can request a hearing.

[00:30:43] Speaker 02:
It's going to be within two days.

[00:30:45] Speaker 02:
Oh, by the way, we're not telling you you can't subpoena any witnesses.

[00:30:49] Speaker 02:
We're not telling you who made the allegations against you because we've taken all the names out, so that was secret.

[00:30:56] Speaker 02:
But you can have your name clearing hearing, which was kind of a joke, I'm sorry.

[00:31:00] Speaker 02:
And then they were going to disclose the records anyway.

[00:31:03] Speaker 02:
So, I mean, they'd already made it clear they were gonna do that.

[00:31:05] Speaker 02:
So if there was an illusion of fairness coming out of that name clearing hearing, that should be gone at that point.

[00:31:15] Speaker 02:
With regard to the Oregon Public Records Law,

[00:31:18] Speaker 02:
There are a huge number of exemptions in this case.

[00:31:23] Speaker 02:
This was a

[00:31:25] Speaker 02:
at best, a preliminary investigation, because it was not complete.

[00:31:29] Speaker 02:
It was performed by an employee who had never received any training in investigations.

[00:31:35] Speaker 02:
It was done in a manner that was in violation of state HR policy, because I was not interviewed, because I was never given an opportunity to respond.

[00:31:44] Speaker 02:
So it couldn't be a complete investigation at that point.

[00:31:48] Speaker 01:
And if you look in the organ... I did look through all...

[00:31:51] Speaker 01:
the exemptions in Oregon, and they're very similar to Washington and other standard public records, state public records, and I couldn't exactly see an exemption that would fit your category.

[00:32:03] Speaker 01:
Do you have one?

[00:32:04] Speaker 02:
There were a couple of them, arguably, Your Honor, and I'm sorry I don't have that.

[00:32:08] Speaker 02:
There are long statutes on this, but there were a couple, I think, that applied, and one indication here is that the fact that all of these other people's names were taken out,

[00:32:20] Speaker 02:
which indicates some level of confidentiality, and when you have those types of confidential statements that are provided to a government agency as part of an investigation, then those are closed.

[00:32:32] Speaker 02:
Those are exempt from disclosure.

[00:32:35] Speaker 02:
It's it's one of those things as a matter of fact if you make a public records request I've made public records request and more often than not I get turned down because it's like You know it's exempt can't give it to you So it's not a surprise when you hear that in this case They turned the other way and they were falling all over themselves to disclose this this defamatory derogatory report

[00:32:58] Speaker 02:
I would also point out that the Oregon's public records law only authorizes disclosure of requested records.

[00:33:08] Speaker 02:
There's no specific exemption for not disclosing

[00:33:13] Speaker 02:
records that haven't been requested, because by definition, if it's not requested, public officials are not authorized to disclose it.

[00:33:23] Speaker 03:
Mr. Pounds, we understand, and I think you mentioned in your opening argument that that's okay, but that's the linchpin of your claim.

[00:33:31] Speaker 03:
So I think we understand your argument.

[00:33:33] Speaker 03:
If you'd like to take a few seconds to wrap up, I'd appreciate it.

[00:33:37] Speaker 02:
Your Honor, I would just say this, and I think that given the evidence before this Court,

[00:33:41] Speaker 02:
This is a de novo review, and I think this court is empowered to find issues in this case, and I think that the clear undisputed evidence in this case establishes that I was speaking as a private citizen on a matter of public concern.

[00:33:55] Speaker 02:
That's indisputable.

[00:33:57] Speaker 02:
I think given the nature of the documents they released that attacked my reputation for honesty and trustworthiness, there's no question it was adversarial at that point.

[00:34:08] Speaker 02:
It was an adversarial, it was an adverse employment action.

[00:34:12] Speaker 02:
And lastly, I think there's no question at all that their disclosure of that report was substantially motivated by my speech, and I would request this court find that.

[00:34:21] Speaker 02:
Appreciate it, Your Honors.

[00:34:23] Speaker 03:
Thank you very much.

[00:34:24] Speaker 03:
Thank you to both sides for your argument.

[00:34:26] Speaker 03:
That case is now submitted and this court will stand in recess.