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

[00:00:00] Speaker 03:
Our final case this morning is Von Bush versus Board of County Commissioners for Gary County, number 253026.

[00:00:12] Speaker 03:
And we will start with Council for Appellant, Ms.

[00:00:16] Speaker 03:
Davis.

[00:00:17] Speaker 00:
Good afternoon, Your Honors.

[00:00:18] Speaker 00:
May it please the Court?

[00:00:19] Speaker 00:
Chloe Davis on behalf of Appellant Tammy Von Bush.

[00:00:24] Speaker 00:
Your Honors, just to make it aware, I do intend to reserve three minutes for rebuttal.

[00:00:29] Speaker 00:
if time permits after the court's questions.

[00:00:32] Speaker 00:
Your Honors, this appeal arises out of Ms.

[00:00:34] Speaker 00:
Vaughn Bush's employment as the Director of the County Health Department with the Defendant Appellee Board of County Commissioners for Geary County, Kansas.

[00:00:42] Speaker 00:
Ultimately, Your Honors, this appeal comes down to one question.

[00:00:46] Speaker 00:
Was Ms.

[00:00:47] Speaker 00:
Vaughn Bush's speech made pursuant to her official duties as the Director of the Health Department?

[00:00:53] Speaker 00:
Your Honors, without going

[00:00:54] Speaker 00:
Too far into the facts, I would like to highlight some important facts that were established in Ms.

[00:00:59] Speaker 00:
Von Bush's amended complaint.

[00:01:01] Speaker 00:
Ms.

[00:01:01] Speaker 00:
Von Bush served as the director of the county's public health department beginning in 2017, and she stayed in that position until her termination in November of 2021.

[00:01:11] Speaker 00:
Between 2017 and 2021, she received positive performance feedback from the county.

[00:01:17] Speaker 00:
She specifically was described as a good leader and doing an exemplary job.

[00:01:22] Speaker 00:
These compliments included making good use of budgets allocated to the department.

[00:01:29] Speaker 00:
However, in January of 2021, a new county commissioner, Patricia Giordano, was elected to the board of commissioners.

[00:01:36] Speaker 00:
Following this commissioner's election to the board, Ms.

[00:01:39] Speaker 00:
Von Busch noted concerning behavior by Commissioner Giordano.

[00:01:43] Speaker 00:
This behavior included a refusal to allocate necessary funding to the health department and repeatedly exhibiting unprofessional behavior toward county employees and members of the public.

[00:01:54] Speaker 00:
This behavior prompted Ms.

[00:01:56] Speaker 00:
Von Busch to complain about Commissioner Giordano, including Commissioner Giordano's unprofessional, troubling behavior

[00:02:03] Speaker 00:
at monthly public forum meetings and in private social settings.

[00:02:07] Speaker 00:
In response, Commissioner Giordano retaliated against Ms.

[00:02:10] Speaker 00:
von Busch by sending harassing emails, making disparaging comments about Ms.

[00:02:15] Speaker 00:
von Busch and being combative towards Ms.

[00:02:17] Speaker 00:
von Busch.

[00:02:19] Speaker 00:
Commissioner Giordano's retaliatory response to Ms.

[00:02:22] Speaker 00:
von Busch prompted Ms.

[00:02:23] Speaker 00:
von Busch to further express concern about Commissioner Giordano's fitness for office to the public in both public meetings and private social settings.

[00:02:32] Speaker 00:
Shortly thereafter, Ms.

[00:02:34] Speaker 00:
Von Busch received a notice of discipline for quote, creating conflict, end quote, and quote, spreading gossip, end quote.

[00:02:41] Speaker 00:
November of 2021, Ms.

[00:02:43] Speaker 00:
Von Busch was ultimately terminated from employment for voicing those concerns.

[00:02:49] Speaker 00:
I think one thing that is important to mention here, Your Honors, although I'm sure that this court is well aware of the pleading standard at the pleading stage, the Ashcroft-Iqbal standard is just that the complaint

[00:03:01] Speaker 00:
provide enough factual material for the court to draw a reasonable inference in favor of the plaintiff.

[00:03:09] Speaker 03:
Ms.

[00:03:09] Speaker 03:
Davis, I've got a few questions that go to that.

[00:03:12] Speaker 03:
But before I get there, I need to ask you what impact our recent decision in Timmons v. Plotkin has on this case.

[00:03:24] Speaker 00:
I apologize, Your Honor.

[00:03:25] Speaker 00:
I'm not familiar with that case.

[00:03:28] Speaker 00:
I did not include it in my briefing.

[00:03:30] Speaker 00:
So I apologize that I'm not prepared with an answer to your question today.

[00:03:34] Speaker 03:
Well, it issued last week and it's a Garcetti-Pickering case.

[00:03:40] Speaker 03:
And I think both parties and the court are going to have to consider that case in relation to yours.

[00:03:51] Speaker 03:
But if you haven't looked at it, I'm not going to push questions about it at this time.

[00:03:59] Speaker 03:
So let's get to the complaint.

[00:04:02] Speaker 03:
How does the amended complaint describe your client's official duties?

[00:04:09] Speaker 00:
Your honor, it does not.

[00:04:11] Speaker 00:
It does provide some feedback on some of the performance evaluations that she received, which does kind of describe some of the things that she would have been doing in her position.

[00:04:22] Speaker 00:
However, the complaint within the four corners of the complaint does not, does not describe any of her official duties in her position.

[00:04:28] Speaker 03:
And the problem though, is that the first Garcetti Pickering factor

[00:04:33] Speaker 03:
asked the question whether the statements at issue are pursuant to the employee's official duties.

[00:04:40] Speaker 03:
And if we don't have anything in your complaint about what those official duties are, how do we apply that factor?

[00:04:51] Speaker 00:
Understood, Your Honor.

[00:04:53] Speaker 00:
I think the distinction here is that

[00:04:57] Speaker 00:
Complaining about Commissioner Giordano and her unfitness for office or her unprofessional behavior would not fall within the duties of a public county health department director.

[00:05:08] Speaker 00:
I think that that's a reasonable inference that could be drawn by the court based on the basic understanding of a county public health department.

[00:05:19] Speaker 00:
Complaining about a

[00:05:21] Speaker 00:
with specific county commissioner and their unprofessional behavior for their unfitness for office would not fall within those duties, your honor.

[00:05:28] Speaker 03:
Well, does the amended complaint say whether Ms.

[00:05:32] Speaker 03:
Von Bush addressed Ms.

[00:05:34] Speaker 03:
Giordano's conduct and fitness for office, for example, at the September 27 board meeting?

[00:05:43] Speaker 00:
It does not, your honor.

[00:05:43] Speaker 00:
The specific paragraph that references the September 2021 meeting

[00:05:49] Speaker 00:
outlines her complaints that have to do with funding the health department.

[00:05:55] Speaker 00:
What the amended complaint was trying to do was set up why the retaliation occurred specifically, but Commissioner Giordano continued to complain about the behavior of Commissioner Giordano following the September 2021 board meeting in both

[00:06:13] Speaker 00:
public forum meetings and in private settings.

[00:06:16] Speaker 03:
One thing I would like to also emphasize... The only specific date and location that you have in your complaint about her statements is the September 27 board meeting.

[00:06:30] Speaker 03:
So you just said that it doesn't allege that she said anything about Ms.

[00:06:36] Speaker 03:
Giordano there.

[00:06:37] Speaker 03:
Let's say though that she did talk about

[00:06:41] Speaker 03:
the budget for the health department.

[00:06:47] Speaker 03:
Why wouldn't comments from the director of the health department to the board about the budget of her department, why wouldn't that be within the scope of her official duties?

[00:07:02] Speaker 03:
Isn't that her job is to defend her budget?

[00:07:09] Speaker 00:
Your honor, I would like to make the distinction that I think that it is more Ms.

[00:07:14] Speaker 00:
Vaughn Bush's job to work with the resources that she's allocated.

[00:07:17] Speaker 00:
At the end of the day, her position does not have any final say over the budgetary allotments awarded to the department.

[00:07:24] Speaker 00:
And she had been given previous feedback on her successful ability to do just that, which is within the four corners of the complaint, your honor.

[00:07:33] Speaker 03:
Well, I'm not sure that that really answered my question.

[00:07:37] Speaker 03:
If she stands up in front of the board, which controls her budget, allows her and her staff to do her job, and she voices concerns about cuts to the budget or elimination of the department or whatever it is, why isn't that within the scope of her official duties?

[00:07:58] Speaker 03:
I mean, isn't it the job of a department head to protect the department, including the financial health of the department?

[00:08:06] Speaker 00:
Your honor, I think the inference would be drawn that and I apologize.

[00:08:10] Speaker 00:
I'm reiterating what I said earlier.

[00:08:12] Speaker 00:
Um, but it's her job to run the department based on the budget allocated to her.

[00:08:17] Speaker 00:
So I would say the inference would not be that it's her job to push back on, on the board of County commissioners as to what that amount may be.

[00:08:25] Speaker 03:
So not within the scope, is that what you're saying?

[00:08:32] Speaker 00:
Okay.

[00:08:33] Speaker 03:
All right.

[00:08:34] Speaker 03:
All right.

[00:08:35] Speaker 03:
Okay.

[00:08:37] Speaker 03:
Well, where do where did she make these comments about Ms.

[00:08:39] Speaker 03:
Giordano where the complaint only talks about private social settings and public forums, but it doesn't say to whom she made the statements, where she made the statements, what exactly the statements were, were they made to the board.

[00:08:59] Speaker 03:
Were they made in public forums?

[00:09:01] Speaker 03:
I mean, the complaint really is pretty thin in terms of telling us what exactly happened here.

[00:09:10] Speaker 00:
To answer your question directly, Your Honor, these statements were made in various locations and I understand that the complaint doesn't specify whether the complaint or whether the comments were made at her home or at a store in the community.

[00:09:21] Speaker 00:
I understand, Your Honor, that it doesn't state that.

[00:09:24] Speaker 00:
Ultimately, the comments in reality were made in various places throughout the community that would be considered private social settings.

[00:09:33] Speaker 00:
One thing I would like to highlight, Your Honor, is that

[00:09:35] Speaker 00:
The term, the language private social settings is not a legal analysis.

[00:09:40] Speaker 00:
It's not a legal conclusion.

[00:09:42] Speaker 00:
It's not even an element of the Garcetti test, the Garcetti Pickering test.

[00:09:46] Speaker 00:
It is a factor to be considered and whether or not an official is speaking to their official duties or not.

[00:09:53] Speaker 00:
However, the language private social setting is not a legal conclusion, Your Honor.

[00:09:58] Speaker 00:
And so therefore our position is that under leading standard, it satisfies that standard.

[00:10:04] Speaker 03:
Well, the court thought that those allegations about private social settings were too conclusory.

[00:10:12] Speaker 03:
Why wasn't the court correct about that?

[00:10:16] Speaker 00:
Your Honor, so it would be our position that, again, private social setting isn't a legal conclusion.

[00:10:24] Speaker 00:
And I think this is where it speaks to the degree of how specific do the pleadings need to be

[00:10:32] Speaker 00:
in order to satisfy the Ashcroft Iqbal standard.

[00:10:36] Speaker 00:
And our position is that it just needs to provide enough factual information for the court to draw an inference that plaintiff could prevail based on these facts.

[00:10:46] Speaker 00:
And as I mentioned, Your Honor, the phrase private social settings is not a legal conclusion.

[00:10:52] Speaker 00:
And so therefore, factually, if accepted as true, the inference could be drawn that if she's making those comments in a private social setting, that she would not be making them pursuant to her duties.

[00:11:02] Speaker 01:
So how are we supposed to know that?

[00:11:04] Speaker 01:
Because there are other cases where people have made statements outside of a work setting, purportedly statements between friends that were ultimately found to be within the scope of their duties.

[00:11:21] Speaker 00:
Your Honor, I believe that you're referring to the Casey case.

[00:11:25] Speaker 00:
If I'm incorrect, I apologize.

[00:11:29] Speaker 00:
I think one distinction that's important here, which I did want to touch on, is that the lower court and the defendants at times seem to conflate Ms.

[00:11:41] Speaker 00:
Von Bush's language or her comments, her speech.

[00:11:46] Speaker 00:
Part of her speech was within the scope of her department, theoretically.

[00:11:51] Speaker 00:
If we are going to give that leeway, that the speech about funding the department is within her duties,

[00:11:57] Speaker 00:
There's a secondary part of her speech that is about the professionalism and fitness for office of Commissioner Giordano.

[00:12:05] Speaker 00:
And the lower court and the county seem to conflate those two things.

[00:12:09] Speaker 00:
You'll see it in the last paragraph of the lower court's decision.

[00:12:13] Speaker 00:
The court characterizes it as complaints about funding the health department and the behavior of Commissioner Giordano and the influence on the department.

[00:12:23] Speaker 00:
However,

[00:12:25] Speaker 00:
The speech was two separate topics.

[00:12:28] Speaker 00:
And to circle back to your question, Your Honor, the speech about Ms.

[00:12:34] Speaker 00:
Giordano's, Commissioner Giordano's, professionalism or fitness for office made in private social settings or to the public at large, despite who it was made to, whether it was a friend or any other member of the public would satisfy the pleading standard.

[00:12:52] Speaker 01:
Okay, so let me, I wanna, on the social setting idea, I guess my only point to you would be is I have a hard time looking at that in understanding what was said in social settings and who the recipient of the speech was.

[00:13:10] Speaker 01:
So it makes it difficult to determine if you can satisfy that.

[00:13:14] Speaker 01:
But let me ask you a hypothetical.

[00:13:17] Speaker 01:
So let's presume you're at the September meeting.

[00:13:21] Speaker 01:
And your client is addressing the board and making, stating concerns about the budget and this and that.

[00:13:34] Speaker 01:
And she says, and Commissioner Giordano is attempting to cut our budget.

[00:13:41] Speaker 01:
She's acting unprofessionally.

[00:13:43] Speaker 01:
We need to push back on that and make sure the budget is preserved so we can keep doing our good work.

[00:13:51] Speaker 01:
What do you got there?

[00:13:52] Speaker 01:
I mean, isn't that indistinguishable?

[00:13:55] Speaker 01:
If that speech is mixed up with the budgetary speech, which we don't know where it was said and not said, I mean, isn't that problematic?

[00:14:08] Speaker 00:
It is problematic, Your Honor, especially in light of the stage of these proceedings at the pleading stage.

[00:14:14] Speaker 00:
Again, I think it circles around to what degree of detail is required in the pleadings.

[00:14:20] Speaker 00:
To answer your question more directly, I think the court at that point would be required to split hairs and decide, okay, the complaints about funding the department unprotected because it falls within the scope of the job.

[00:14:35] Speaker 00:
The complaints about professionalism

[00:14:38] Speaker 00:
does not fall within the scope of the job because it's not the director's job to supervise or oversee the behavior of that commissioner.

[00:14:46] Speaker 01:
So if your client is up basically

[00:14:50] Speaker 01:
and I'm not saying this is how it happened, but on a diatribe to the board and talking about things that are within the scope of her job and then throws in a couple of personal zingers about the county commissioners, then we have to parse through those and determine which ones are in the scope and which ones are not.

[00:15:13] Speaker 00:
I think such an analysis, ultimately the answer is yes.

[00:15:16] Speaker 00:
I think such an analysis would be much more appropriate at like a summary judgment proceeding stage.

[00:15:21] Speaker 00:
That's why you guys are tasked with the hard decision of deciding what the standard is at the pleading stage and how specific pleadings need to be.

[00:15:30] Speaker 00:
One thing I think, and I see that I'm on time, if I could just answer your question, Judge Carson, a little bit more in depth.

[00:15:38] Speaker 00:
One thing I think that's important as well is to note that Ms.

[00:15:42] Speaker 00:
Von Busch was disciplined for this exact thing.

[00:15:45] Speaker 00:
They call it gossiping, they call it creating conflict.

[00:15:48] Speaker 00:
And so clearly the county didn't think that that behavior fell within her job duties because they ultimately disciplined and terminated her for it.

[00:16:00] Speaker 00:
Your honors, if there are no further questions, if I could just briefly conclude.

[00:16:04] Speaker 03:
Please do.

[00:16:06] Speaker 00:
In summary, Your Honors, the judges are tasked today with figuring out whether Ms.

[00:16:10] Speaker 00:
Vaughn Bush's speech fell within the job that she was paid to do.

[00:16:15] Speaker 00:
Ultimately, monitoring and complaining about the behavior of Commissioner Giordano did not fall within the job duties of Ms.

[00:16:22] Speaker 00:
Vaughn Bush as the county's public health department director.

[00:16:27] Speaker 00:
The other thing that the court is tasked with looking at today is the pleading standard, which is well established under Asheville

[00:16:35] Speaker 00:
excuse me, Ashcrock v. Ickball.

[00:16:38] Speaker 00:
And here, it would be our position that that pleading standard was satisfied.

[00:16:43] Speaker 00:
I did not get to touch on the secondary prong of the Garcetti Pickering Test.

[00:16:49] Speaker 00:
If I could have a few brief minutes on rebuttal potentially after we hear from the other side, it would be appreciated.

[00:16:54] Speaker 00:
But ultimately, we ask that the lower court's decision be reversed and remanded.

[00:17:00] Speaker 00:
Thank you.

[00:17:01] Speaker 03:
Thank you, counsel.

[00:17:02] Speaker 03:
Mr. Linden?

[00:17:04] Speaker 02:
Good afternoon, Your Honor.

[00:17:05] Speaker 02:
May it please the Court?

[00:17:07] Speaker 02:
Patrick Linder for the Board of County Commissioners of Geary County, Kansas.

[00:17:11] Speaker 02:
The present appeal turns upon a question of the sufficiency of the pleadings.

[00:17:15] Speaker 02:
What does a former government official need to plead in order to allege a plausible retaliation claim under 42 USC Section 1983, specifically as to whether she had engaged in protected speech under the First Amendment?

[00:17:30] Speaker 02:
It is not enough to merely allege that one engaged in protected speech.

[00:17:35] Speaker 02:
There must be sufficient fact information to demonstrate on the face of the pleadings that the speech was, one, not made as part of the former official's duties, or two, that it concerned issues of public concern.

[00:17:49] Speaker 02:
Here, the plaintiff on Bush's amended complaint lacked the information sufficient to plausibly allege that she engaged in protected speech outside of the scope of her official duties, and that such speech involved issues of public concern.

[00:18:02] Speaker 02:
As a result, the district court's dismissal of plaintiff's action should be affirmed.

[00:18:08] Speaker 03:
Counsel, let me just, again, I don't want to spend time on it if you haven't looked at it, but if you had an opportunity to

[00:18:16] Speaker 03:
look at this Timmons versus Plotkin decision?

[00:18:19] Speaker 02:
I did not get a chance to review it before today.

[00:18:23] Speaker 02:
During Palin's argument, I did take a brief review of that.

[00:18:27] Speaker 02:
I did see that there was discussion about the scope of what constitutes in accordance with official duties.

[00:18:33] Speaker 02:
That one does look at the nature of the duties being performed, not simply whether it concerns information learned in the course of one's official duties.

[00:18:41] Speaker 02:
But here, I think the application of Timmons in my very brief opportunity to review this needs to be viewed in the context of our plaintiff's context here.

[00:18:49] Speaker 02:
She was the director of the Gary County Health Department.

[00:18:53] Speaker 02:
She was a top level employee with essentially broad duties and broad responsibilities for the administration.

[00:18:59] Speaker 02:
And I would say a good governance of that that department.

[00:19:05] Speaker 02:
And that touched all aspects of it.

[00:19:07] Speaker 03:
It's viability.

[00:19:09] Speaker 03:
counsel did it touch this?

[00:19:11] Speaker 03:
Was her speech about Ms.

[00:19:13] Speaker 03:
Giordano's conduct and fitness for office within the scope of her official duties?

[00:19:21] Speaker 02:
That I don't think we can clearly answer on the face of the amended complaint because we don't know what the particular concerns being raised were.

[00:19:28] Speaker 02:
Were they concerns about her conduct in relation to communications about the health department or issues concerning the health department?

[00:19:35] Speaker 02:
Was it involving other aspects of the county's operations?

[00:19:39] Speaker 02:
So I don't think we have enough information from the amended complaint to make that call.

[00:19:47] Speaker 02:
And that does get a little bit into the second pickering factor, but first let me walk through the first step of the pickering analysis, because I think it is truly important here.

[00:19:59] Speaker 02:
Again, Ms.

[00:19:59] Speaker 02:
Von Busch was the director of the health department.

[00:20:02] Speaker 02:
She had broad levels of responsibility.

[00:20:04] Speaker 02:
And as this Court has said in the first element of the Pickering Test, determining what is within the scope of an employee's duties for purposes of determining whether it is speech as part of those duties or outside of those duties, this Court has indicated that this is a heavy barrier for most employees.

[00:20:24] Speaker 02:
And here, I think the burden is even steeper given the nature of the employment at issue here.

[00:20:30] Speaker 02:
When you're the head of a department,

[00:20:32] Speaker 02:
that is a very broad range of duties, a very broad range of responsibilities.

[00:20:36] Speaker 02:
I would say that those duties extend to the full extent of the operations of that department, as opposed to a more subordinate employee that may have a more constrained scope of duties.

[00:20:47] Speaker 02:
So here, what we know from the first amended complaint, it starts with an articulation of various concerns that Ms.

[00:20:54] Speaker 02:
Von Bush had identified, and then steps to a discussion about raising certain

[00:21:00] Speaker 02:
quote, issues at board meetings.

[00:21:03] Speaker 02:
There's no express connection in the amended complaint between that first articulation concerns and the issues.

[00:21:09] Speaker 02:
The only issue that is clearly articulated as being a issue of speech to the board meetings was, I believe, the issue, a rumor about the health department being abolished or dissolved.

[00:21:22] Speaker 03:
Could I just ask you about the board meetings and what we can glean

[00:21:29] Speaker 03:
or maybe infer from the complaint about the board meetings.

[00:21:34] Speaker 03:
Are these meetings where this is where the board conducts its business?

[00:21:40] Speaker 03:
In other words, it actually does consider budget issues and other matters and votes on them.

[00:21:49] Speaker 03:
I mean, it's truly they're governing through the board meeting.

[00:21:54] Speaker 03:
Or are these board meetings more of a public forum?

[00:21:58] Speaker 03:
The reason I'm asking this is that I've been wondering whether if Ms.

[00:22:05] Speaker 03:
Von Bush is going to the board meetings and she's really there to make a statement to the community at large, does that help her in saying that, look, I'm speaking beyond the scope of my

[00:22:23] Speaker 03:
official duties, I'm there to talk to the public and I'm a concerned citizen too.

[00:22:30] Speaker 03:
So what can you tell us about the board meetings?

[00:22:33] Speaker 03:
And understanding that we are only looking at the complaint.

[00:22:41] Speaker 03:
You may be able to tell us a lot about the board meetings, but we just have to look at the complaint.

[00:22:47] Speaker 02:
Again, I don't think the complaint makes that truly clear and I wasn't involved in this stage of the representation in front of the district court.

[00:22:55] Speaker 02:
So I honestly don't have clear knowledge one way or the other of.

[00:22:59] Speaker 02:
The board meetings in question, what was what was involved, but even if they were more of an informal nature, not formal meetings to set set county policy, if there were communications by the board as a body with its constituents, that's still a function of the government.

[00:23:15] Speaker 02:
And I don't think that the plaintiff is Von Bush can necessarily step outside of her role.

[00:23:20] Speaker 02:
As the head of the health department, speaking on health department issues and say that she's speaking as a private citizen.

[00:23:27] Speaker 02:
I don't think those 2, I think they are so closely intertwined that you can that you can separate the 2, even in a more informal context.

[00:23:34] Speaker 02:
If it was just a. A meeting for public comment, but even a meeting for public comment is still in a formal function of the board.

[00:23:42] Speaker 02:
If that's indeed what these meetings were, which again, we don't know from the amended complaint or whether they were.

[00:23:47] Speaker 02:
meetings to officially decide – deliberate and decide upon county policies.

[00:23:52] Speaker 02:
But those are still official functions.

[00:23:56] Speaker 02:
So, getting back to the first element of the Pickering Test, we have the initial statement of concerns, some allegations about raising issues that are largely unspecified.

[00:24:10] Speaker 02:
before the board, but the issue that is specified is certainly a matter that is directly connected to Ms.

[00:24:16] Speaker 02:
Von Bush's duties as the director of the health department.

[00:24:20] Speaker 02:
And so at least under the first element of the Pickering's test to what we know about what you said at board meetings, we know that this was not speech protected by the First Amendment.

[00:24:30] Speaker 02:
Now, with regard to, there has been some discussion about the conversations in private contexts,

[00:24:37] Speaker 02:
And I will agree, I think, I believe it was Judge Eide who made the, made the comment that's very nonspecific as to what those conversations were, the context in which they were held, what was said, and even really what the specific discussion about these other topics were.

[00:24:56] Speaker 02:
I minded Judge Ide's recent opinion in Peterson versus Williams.

[00:25:01] Speaker 02:
It's an unpublished decision.

[00:25:04] Speaker 02:
The West's law side is 20-20 WL 142-1959, which I think echoes this case a great deal in that there too, there were very vague allegations as to what the nature of the speech was, the context in which it was being held, but I think echoes the portions of the complaint here that are talking about these

[00:25:25] Speaker 02:
private discussions.

[00:25:27] Speaker 02:
We don't know what was said.

[00:25:28] Speaker 02:
We don't know to whom it was said, the context in which it was said.

[00:25:33] Speaker 02:
And the Peterson case makes a place of considerable focus upon those circumstances, knowing what was said, what was the context to know if what was said in those situations was a matter of public interest.

[00:25:47] Speaker 02:
And I would also submit

[00:25:49] Speaker 02:
whether or not those communications were also in some way tied to Ms.

[00:25:54] Speaker 02:
Von Bush's role and duties as the director of the health department.

[00:25:57] Speaker 03:
Well, counsel, the complaint paragraphs 22 and 23 alleges that the board's disciplinary notice said that Ms.

[00:26:09] Speaker 03:
Von Bush had been spreading gossip

[00:26:12] Speaker 03:
quote unquote, spreading gossip, and that her performance evaluation said that she had not shown quote, good judgment in addressing a rumor with the board of county commissioners, end of quote.

[00:26:27] Speaker 03:
So why doesn't that help make the private social settings allegations more than just conclusory?

[00:26:40] Speaker 03:
Why doesn't that make them sufficient?

[00:26:42] Speaker 02:
I don't think necessarily that from those two paragraphs, you can tie that to the private context discussions as opposed to the statements in front of the board.

[00:26:53] Speaker 02:
The mentioned of rumor, I believe, is elsewhere in the amended complaint as being discussed in the context of the board meetings.

[00:27:01] Speaker 03:
Would you agree that gossip and rumor would not be within the scope of her official duties?

[00:27:09] Speaker 02:
I think it would depend on what the gossip was about.

[00:27:12] Speaker 02:
Is it related to operations in the health department or Ms.

[00:27:17] Speaker 02:
von Bush's dealings with Commissioner Giordano about the health department?

[00:27:21] Speaker 02:
You know, while you might characterize it as gossip or rumors, if it is tied to something that is part of her official duties, I think it is still within that scope.

[00:27:32] Speaker 02:
So unless we know what the speech was and the context of it, I don't think we can say that a sufficient claim has been pleaded here

[00:27:40] Speaker 02:
even with regard to the alleged conversations that are in a private context.

[00:27:47] Speaker 02:
We just don't have enough factual information in the pleadings before us.

[00:27:57] Speaker 02:
The other aspect of this that also I think is problematic in lacking the information about what happened or what was discussed in those private meetings is there's been some discussion about, well,

[00:28:09] Speaker 02:
board member Joe Donner was engaging in unprofessional behavior or misconduct.

[00:28:15] Speaker 02:
I think that starts leading into questions of, well, are we talking about issues that rise to a level of actual misconduct or are we talking about issues of personal grievance or differences of opinion?

[00:28:27] Speaker 02:
The latter have not generally be considered matters of public interest.

[00:28:33] Speaker 02:
Now, if there was an allegation here, which we don't have,

[00:28:36] Speaker 02:
that Commissioner Giordano had violated the law or acted in a way that was in violation of a county policy.

[00:28:44] Speaker 02:
That might be a very different question, but again, we don't have any of those sorts of allegations here.

[00:28:50] Speaker 02:
So ultimately, it's a lack of factual detail here that supports the district court's result.

[00:28:59] Speaker 02:
The petition, or I'm sorry, the amended complaint we have here

[00:29:03] Speaker 02:
does not provide us any factual information that takes Ms.

[00:29:08] Speaker 02:
von Busch's speech and places it either outside of the scope of her official duties, which again were very broad, or clearly identifies if there were matters outside of that official scope,

[00:29:22] Speaker 02:
makes it clear that those were issues of public interest.

[00:29:25] Speaker 02:
And so because of this, the petition, or I'm sorry, the amended complaint, is insufficient to state a plausible claim for retaliation under Section 1983.

[00:29:36] Speaker 02:
And as a result, the district court reached the correct result in deciding to dismiss the claims on the amended petition.

[00:29:45] Speaker 02:
If the court does not have any other questions, I am happy to yield the floor back to Council for Appellate.

[00:29:52] Speaker 03:
Could I just ask you whether the district court erred by failing to address Ms.

[00:29:59] Speaker 03:
Juan Bush's statements about Ms.

[00:30:02] Speaker 03:
Giordano's fitness for office?

[00:30:08] Speaker 02:
I don't believe that that is error, or even if it is error, that is reversible error here.

[00:30:15] Speaker 02:
Because again, as I stated a few moments ago, we don't have enough information from the amended complaint as to what the nature of that

[00:30:22] Speaker 02:
allegation was.

[00:30:23] Speaker 02:
I mean, fitness for, unfitness for, you know, that role, that's a very broad term.

[00:30:30] Speaker 02:
And I think without some level of factual detail, so what was the conduct that was the basis of this speech?

[00:30:38] Speaker 02:
Or what was it about?

[00:30:40] Speaker 02:
I don't think we have sufficient information here, again, to cross the threshold to a plausible claim.

[00:30:50] Speaker 03:
Well, thank you council.

[00:30:52] Speaker 03:
If there are no further questions for Mr. Linden, and I will take you up on your offer to yield some of your time and let Ms.

[00:30:59] Speaker 03:
Davis take, you've got 1 minute.

[00:31:03] Speaker 03:
Thank you for your time.

[00:31:05] Speaker 03:
Take us to the end of today's session.

[00:31:08] Speaker 00:
Thank you, your honor.

[00:31:09] Speaker 00:
I did just want to touch on the 2nd prong of the Pickering Garcetti test.

[00:31:14] Speaker 00:
It was not raised by the appellant on appeal, however, it was touched on by the county on appeal.

[00:31:20] Speaker 00:
So I do just want to take a second to emphasize that it's fairly well established in the case law that

[00:31:28] Speaker 00:
Although speech related to personal disputes or personnel disputes with unemployment would not be protected.

[00:31:34] Speaker 00:
However, this was not about personnel disputes.

[00:31:37] Speaker 00:
Ms.

[00:31:37] Speaker 00:
Vaughn Bush's speech was related to the unprofessionalism and unfitness for office of Ms.

[00:31:43] Speaker 00:
Giordano.

[00:31:44] Speaker 00:
And so therefore it was aimed or intended to expose her impropriety or her malfeasance and her unfitness for office.

[00:31:53] Speaker 00:
It really had nothing to do with the day-to-day going on of the county health department.

[00:31:58] Speaker 00:
Your Honours, I also did want to touch on the Timmons v. Plotkin case briefly.

[00:32:05] Speaker 00:
If I understand correctly what I was able to look at briefly, essentially, as pled in the amended complaint, Ms.

[00:32:15] Speaker 00:
Von Bush

[00:32:16] Speaker 00:
did have these conversations and expressed her speech in private social settings.

[00:32:20] Speaker 00:
So it'd be our position that in line with the recent decision, it would be protected speech based on a brief, brief, very brief reading of the case motion, Your Honors.

[00:32:30] Speaker 03:
Understood.

[00:32:31] Speaker 03:
Understood.

[00:32:32] Speaker 03:
Thank you, counsel.

[00:32:32] Speaker 03:
Thanks to both of you for your arguments this morning.

[00:32:35] Speaker 03:
The case will be submitted.

[00:32:37] Speaker 03:
Counsel are excused and the court will stand in recess until tomorrow morning at 830 a.m.

[00:32:44] Speaker 03:
Thank you.