[00:00:01] Speaker 02:
We'll now hear 25-1424, Carter v. Beebe.

[00:00:11] Speaker 04:
Good morning, Your Honors. May it please the Court. My name is Ashley Hernandez-Schlegel, and I represent the appellant, former Fire Chief David Beebe, in this matter.

[00:00:20] Speaker 04:
Chief Beebe appeals the District Court's finding that he is not entitled to qualified immunity on Mr. Carter's procedural due process claim. The district court erred in denying Chief Beebe's claim for qualified immunity because Mr. Carter failed to satisfy his burden to prove both prongs of the qualified immunity analysis. Specifically, Mr. Carter failed to prove that he was denied due process to which he contractually agreed that would be afforded to him, and he failed to set forth any case law in which it is clearly established that notwithstanding an individual's contractual waiver of a post-termination hearing, every reasonable official in Chief Beebe's position should have known that a post-termination hearing should have nonetheless been provided.

[00:01:03] Speaker 04:
Given Mr. Carter's failure to satisfy his burden to overcome Chief Beebe's qualified immunity and the importance such qualified immunity has for public officials, Chief Beebe respectfully requests that this court overturn or overrule the district court's ruling with respect to him and dismiss the remaining claim of due process.

[00:01:25] Speaker 03:
You're not contesting that the just cause language in the collective bargaining agreement created a due process property interest.

[00:01:37] Speaker 04:
I think for purposes of this appeal, Your Honor, we're not. I do think that there was question on summary judgment, but for purposes of this appeal, we are not.

[00:01:45] Speaker 03:
All right. So assuming that there's a due process property interest, we're talking about whatever process is due.

[00:01:54] Speaker 03:
And I'm interested in getting you started by asking you whether under the Loudermill case, the Supreme Court's decision in Loudermill, How can a collective bargaining agreement limit the constitutionally required procedures to protect the property interest?

[00:02:14] Speaker 04:
And I think that's an excellent question, Your Honor, and I think that's something that Mr. Carter's argument turns on. Loudermill involved a state-created procedural process. The state-created process, the statual process, gave that the employee the property interest in his employment or her employment. And then there was a certain process that was provided, and that was done legislatively. Here we have a negotiated bargain for contractual agreement in which the union employees who were part of that agreement agreed to a certain procedural process.

[00:02:47] Speaker 04:
And so it's a contractual waiver issue versus a state procedural issue.

[00:02:53] Speaker 03:
Well, is it a waiver issue, or is it more a question of whether – THE COLLECTIVE BARGAINING AGREEMENT CAN GRANT THE PROPERTY INTEREST BUT CONDITION THE PROPERTY INTEREST ON THE PROCEDURES TO BE FOLLOWED.

[00:03:12] Speaker 03:
I MEAN, YOUR ARGUMENT IS CAST IN TERMS OF WAIVER, BUT IT STRIKES ME THAT IT'S MORE A MATTER OF WHETHER THE SCOPE OF THE AGREEMENT ITSELF AND WHETHER UNDER LOUDER MILL, FOR EXAMPLE, THE LIMITATION, FOR EXAMPLE, the failure to explicitly provide for a post-termination hearing can be squared with the Loudermill holding.

[00:03:42] Speaker 03:
And I understand the distinction, but I guess what I'm really asking you is, is it really a matter of waiver, or is it a matter of whether this is just something that negotiated, collected bargaining agreements can do?

[00:03:57] Speaker 04:
And, Your Honor, I think that...

[00:03:59] Speaker 04:
the collective bargaining agreement, contractual agreement, the Supreme Court has found that you can waive certain procedural due process rights. And the CBA explicitly does provide which process is due.

[00:04:15] Speaker 05:
Well, that's different. I mean, the waivers that the Supreme Court has recognized have to be clear and unmistakable. And I think your position relies on the absence of additional protection, the absence of a post-termination hearing, basically agreeing to what's in the CBA is essentially like an implicit waiver. Is that how you're positioning your argument?

[00:04:38] Speaker 04:
So, Your Honor, it's a little more complex than that because I think looking at this case specifically and with Mr. Carter specifically, he was an individual who was negotiating this contract. He was one of the lead negotiators on the contract.

[00:04:54] Speaker 04:
And he signed the contract itself as well on behalf of the union. And so the procedures that are provided for in the CBA, there is explicit language as to what is afforded. Granted, there's not something that says you waive a post-termination hearing.

[00:05:14] Speaker 03:
Does it really matter that he was involved in the negotiation? Let's say he wasn't. Wouldn't your argument be the same?

[00:05:23] Speaker 04:
Not exactly.

[00:05:23] Speaker 03:
I don't think so.

[00:05:24] Speaker 04:
Because I think the law and what the Supreme Board and the Tenth Circuit has said is that there has to be the knowing, voluntary, intelligent waiver.

[00:05:31] Speaker 03:
Well, I'm back to whether we're even talking about waiver.

[00:05:35] Speaker 03:
It seems to me you've got a collective bargaining agreement. It doesn't provide for a post-termination hearing. It does provide for a just cause discharge. So there's your property interest. And the question is, how does the CBA stand up against the Supreme Court's procedural due process law. And you mentioned that there are cases relating to collective bargaining agreements. What are those cases? How do they help you?

[00:06:04] Speaker 04:
Well, so there is a district from New Mexico case, the Burt case, in which CBA... A district court case? Yes, it is a district court case. There's also an unpublished Tenth Circuit case, the Herrera case, that specifically discusses the proposition of waiver in the CBA context. I'll start with Burt. Burt really goes into a post-suspension hearing, and there wasn't one provided, and the CBA specifically said there wouldn't be one provided until a judicial ruling on the issue at hand came down.

[00:06:46] Speaker 04:
And so the court there did find that there was no due process violation because the CBA specifically laid out the process that would be provided.

[00:06:56] Speaker 04:
Herrera dealt with the CBA as well, and the CBA specifically said that there would be an arbitration proceeding.

[00:07:11] Speaker 04:
However, in that case, the union decided not to pursue the arbitration proceeding.

[00:07:19] Speaker 04:
never requested anything further. There wasn't anything specifically saying that there was a post-termination hearing that could be provided. And so the 10th Circuit there also said that there was no due process violation because of the language in the CBA.

[00:07:34] Speaker 05:
So it seems that your waiver argument is that By agreeing to specific procedures, he's waived his due process rights. Well, I don't think it's entirely his due process rights. He received pretty considerable. Well, he waived the rights that he's asserting now.

[00:07:49] Speaker 04:
He waived his right to a post-termination hearing. By agreeing to other procedures. That's your position, right? By agreeing to the procedures that are set forth in the CBA.

[00:07:58] Speaker 02:
And those procedures are said to be the only procedures. That's the final decision is the one by the fire chief. Correct. For all purposes.

[00:08:06] Speaker 04:
Correct. Yes, the fire chief makes the final decision. There is an appeal based on new or additional information, and the fire chief does make the decision on that appeal as well. But there is no further post-termination hearing, and that is explicitly laid out because the process is explicitly laid out within the CBA.

[00:08:29] Speaker 03:
Is it fair to say that at this point, in terms of the arguments presented on appeal, that's really what we're talking about? is the post-termination hearing. Yes, Your Honor. We're not getting into the process that was afforded pre-termination at this stage. We're just talking about whether he should have had a post-termination hearing. I think that's the crux, but I also think that the pre-termination process... But you didn't argue that on appeal, did you?

[00:08:57] Speaker 04:
We did, Your Honor, that the pre-termination process was considerable.

[00:09:01] Speaker 03:
But did you say it goes to whether he gets post-termination hearing? a post-termination hearing on appeal, not at summary judgment, on appeal.

[00:09:09] Speaker 04:
So on appeal, our argument is that there's the waiver of the post-termination and ultimately all of the hallmarks of due process were still met through the procedure set forth in the CBA.

[00:09:22] Speaker 03:
All right. Let me kind of recast the question a little bit because I think it might be helpful in thinking about this. Again, kind of going back to Loudermilk, the court there, at least with respect to the state statute, says the state legislature can't include the bidder with the suite. In other words, if you're going to give a due process protected interest, then the Constitution requires the appropriate accompanying procedural protections, and the legislature can't take that away.

[00:10:00] Speaker 03:
So no bitter and sweet, but does that mean it's your position that a collective bargaining agreement can have the bitter and the sweet?

[00:10:12] Speaker 04:
Yes, Your Honor, it is.

[00:10:13] Speaker 03:
And do you have to get to prong two of qualified immunity for your position? Do you have to show that your position is, or that I guess the best way of putting it is that Mr. Carter can't show otherwise under clearly established law.

[00:10:30] Speaker 03:
Do we have to get that far?

[00:10:33] Speaker 04:
You can take either prong in whatever order you decide.

[00:10:37] Speaker 03:
Well, I understand that, but do you think we have to go to prong two?

[00:10:42] Speaker 04:
I don't necessarily think you have to if you find that the waiver and, you know, is applicable in its knowing voluntary and intelligent, which we argue it is. But even if there is a question regarding that, if you get to prong two and there's no clearly established law, there's been no case that's been presented in either the district court level or on appeal that specifically says that a post-termination hearing in a collective bargaining agreement cannot be waived. And so that is Mr. Carter's burden to provide.

[00:11:15] Speaker 04:
And because there is no case law on that, And the case law actually says that due process can be waived.

[00:11:24] Speaker 04:
Chief Beebe was, there's no saying that he was unreasonable or that every reasonable fire chief in his position wouldn't have made the same decision.

[00:11:36] Speaker 05:
Is a CBA not treated like a state-created process?

[00:11:41] Speaker 04:
No, because it is not unilateral. This was a negotiated contract. So there is that. that difference.

[00:11:50] Speaker 05:
But I think that the... But your position is that there would need to be a case provided on the clearly established prong to kind of bridge that gap.

[00:12:01] Speaker 04:
Yeah, a case, it doesn't have to be exactly the same, but with particularized facts like this case within the Supreme Court or Tenth Circuit or the majority of cases in other circuits, but there has been not one single case that's been provided that would have put Chief Beebe on notice that his actions were unconstitutional. Sure, there was case law providing general due process rights like Ladermill, but that's distinguishable in this case because of the CBA, and the district court did not consider that at all.

[00:12:38] Speaker 04:
The district court limits its analysis to a footnote, footnote 26, which is in...

[00:12:46] Speaker 04:
the sixth appendix of the appellate record, page 108.

[00:12:51] Speaker 04:
And that's it. And so I think without that case, even if we can't get past the due process constitutional prong one analysis, prong two provides this court with justification to overturn and provide qualified immunity to Chief Beebe. And I'll reserve the rest of my time unless there are further questions.

[00:13:13] Speaker 01:
Good morning, your honors. Mark Murphy on behalf of Benjamin Carter, the appellee in this case. May it please the court.

[00:13:22] Speaker 01:
Before I start, I just want to note that this case, and I'm sure you've read the record, it's been over three years since Mr. Carter lost his position, a position that he had held since 2009 with the fire district. At the time, he was also the president of the IAF local there.

[00:13:44] Speaker 01:
And so I just want to understand the context of that.

[00:13:49] Speaker 01:
There's no case law that suggests what the appellants are asking with respect to a CBA because that case law doesn't exist. What we have here, and Judge Matheson talked about this earlier, The case that's controlling here is Loudermill. Loudermill has been decided in 1985. The district court, we're here to defend the district court's decision that qualified immunity is not appropriate.

[00:14:20] Speaker 01:
Loudermill was what the district court relied on, and this court's case in Copland Brown.

[00:14:26] Speaker 02:
Are you saying that the rights under Loudermill can never be waived?

[00:14:30] Speaker 01:
No, absolutely not.

[00:14:32] Speaker 02:
So the question then is whether... the CBA provisions constitute a waiver. Sure. That is a legitimate issue. That's a distinction between this case and Loudermilk.

[00:14:45] Speaker 01:
Well, Loudermill did two things. Loudermill acknowledged and recognized there's pre-termination process and there's post-termination process, right? And in the pre-termination process, you have to do certain things. You have to provide notice and all that we've talked about. This is not an issue here. But in the post-termination process, Post-termination, Loudermil says, you need a full-blown hearing. And that's what Copland Brown says, and that's what the district court judge says. You need a full-blown hearing.

[00:15:13] Speaker 03:
Do you have a case, though, that deals with a collective bargaining agreement? Because Loudermil was about a state statute. And I understand your argument that you want to apply that to CBA.

[00:15:26] Speaker 01:
Sure.

[00:15:27] Speaker 03:
But has any Supreme Court, Tenth Circuit, other circuit, any court ever done that?

[00:15:34] Speaker 01:
Everybody doesn't want your honor.

[00:15:35] Speaker 03:
Applied Loudermill to a collective bargaining agreement.

[00:15:39] Speaker 01:
It happens all the time when the courts look at what the case.

[00:15:41] Speaker 03:
If you've got a case, I'm asking you for a case.

[00:15:43] Speaker 01:
Sure, we have Burt, which the appellants relied on. We have Henai, the case that was in the district courts.

[00:15:50] Speaker 03:
You have a Tenth Circuit or a Supreme Court case. It's your burden on qualified immunity. to show clearly established law. So I'm just, I'm not, I need to know what your best, what's your best, what's your best circuit case, what's your best Supreme Court case?

[00:16:05] Speaker 01:
I always say that, well, the Supreme Court case, it has to be Loudermill that says.

[00:16:08] Speaker 03:
Yeah, that, Loudermill, I asked you for a case that addresses the collective bargaining agreement, and Loudermill doesn't. So the question is whether there is a case that does.

[00:16:21] Speaker 01:
Herrera is a case that talks about waiver claims. And the issue in that case, which the appellants talked about, Herrera had, and this is the whole, the crux of the issue, was a CBA. If the CBA provides for a post-termination hearing, then it can satisfy Labermill. That didn't happen here.

[00:16:40] Speaker 02:
There's no process. Right. And so...

[00:16:43] Speaker 02:
I thought you said the right to a post-termination hearing can be waived. Do you say that can't be waived?

[00:16:51] Speaker 01:
The right to a post-termination hearing can't be waived. You say it can't be waived? It cannot be waived. What's your authority for that? The authority is Loudermilk. There are lots of

[00:17:09] Speaker 02:
clear Supreme Court cases that say this is a constitutional right. And there are lots of other cases that say that for each of these rights, it can be waived. So when you say the right to a post-determination hearing under Loudermilk can't be waived, what's your authority for that?

[00:17:28] Speaker 01:
Your Honor, I was talking about the Herrera case. In the Herrera case, if you look at it, the facts of that case are helpful because that did have a CBA, but that CBA had a post-determination arbitration process. And the issue there was whether that process satisfied the constitutional requirement of Lara Mill. And it did because it had all the elements of a post-determination. You could call witnesses, you could cross-examine it, you could have counsel present.

[00:17:56] Speaker 02:
And are you saying that that opinion...

[00:17:59] Speaker 02:
stands for the clearly established law that you cannot waive the right to a post-termination hearing?

[00:18:08] Speaker 01:
In a CBA, what a CBA can do, Your Honor, is set forth the floor of the constitutional right, the due process right. Loudermill says you have the requirement to have a full-blown hearing after you've been terminated. So what does that mean? Here...

[00:18:28] Speaker 01:
Mr. Carter had no right to any process afterwards, and that's what the court found. What the court then said in its footnote is, looking at the Henne case, if this was a contract, if this was a labour contract, and many labour contracts, I'm sure Your Honour knows, have a grievance and arbitration process, and it's a very robust grievance and arbitration process that provides for exactly what Loudermill is requiring, which is a post-termination hearing. We don't have that here, and that's the problem. And interestingly, in the actual contract, The resolution, the city's resolution specifically says you can't bargain over the process of discipline.

[00:19:08] Speaker 01:
So the process of discipline, and you see that in the court's case, and that was one of the issues here.

[00:19:13] Speaker 02:
I'm sorry.

[00:19:14] Speaker 02:
That's something that surprises me. I must have overlooked that. Where does it say that the parties can't bargain over discipline?

[00:19:22] Speaker 01:
It's in the resolution. It's in the resolution.

[00:19:26] Speaker 02:
And you argued that point in your brief?

[00:19:30] Speaker 02:
It's in the facts of the district court case. Did you argue that point in your brief? I don't think we mentioned that in our brief, Your Honor. Okay, that makes me feel a little better that I didn't overlook it.

[00:19:40] Speaker 01:
No, but... So I'm trying to explain to you with respect to the CBA here. All the CBA says here is the fire chief's decision is final. Final for all purposes. That's it. There's no hearing. There's no post-termination. Now, if the CBA, like many CBAs, like the CBA in Ferreira... The question is, by saying that in the contract,

[00:20:03] Speaker 02:
Is that a sufficient waiver or a waiver at all of the right to a post-termination hearing?

[00:20:09] Speaker 01:
It's no waiver at all, Your Honor. Why not? Because... Mr. Carter, any public employee that has a vested interest, a property interest in their job, that's the first prompt. The question has to be, do you have a vested interest, and then what process is used? And as Judge Matheson explained at the top of his argument, we have that done. There's just cause. So that's the property interest. What does just cause require? What process does just cause require?

[00:20:39] Speaker 01:
That's answered in Loudermill, right?

[00:20:43] Speaker 02:
that's not being contested here. What's being contested is whether that right under Loudermill can be waived. And I thought you said that constitutional rights can be waived, but you're saying that particular constitutional right can never be waived. Is that right?

[00:21:03] Speaker 01:
Your Honor, I can't stand here and say it can never be waived because if there's a clear and unmistakable waiver, for instance, in the contract in Penn Plaza, the Supreme Court case, the union and the company, the contractors, negotiated a provision that allowed arbitration of discrimination claims. And there was a clear and unmistakable waiver of that due process claim. But why was that waiver allowed by the Supreme Court? Because there was a specific post-termination arbitration process that allowed for the due process, the right to the due process that was allowed.

[00:21:39] Speaker 01:
The same thing happened in Burt, the Burt case that the opponents are relying on. That also had a collective bargaining agreement, and the union negotiated a collective bargaining agreement, not saying we're not going to have a post-hearing trial, not saying we're not going to have a post-termination hearing saying it's going to be delayed until after a criminal judicial determination. And in that case, what happened was there were criminal allegations or criminal charges of a sexual nature against the member, who I believe is a police officer.

[00:22:12] Speaker 01:
So they were putting the liberty interest first and said, we're going to have a post-termination hearing to talk about your job, but only after the criminal determination.

[00:22:24] Speaker 01:
Which makes sense. So in that sense, it was delayed. It wasn't waived like in this case where the district is saying and Chief Beebe is saying, I get to say every I just get to be the final decision maker. I'm not having a hearing. I'm not allowing you to call witnesses. I'm not allowing you to cross the salmon. I'm not allowing you to have an attorney. That's all what Loudermil says. Now, where we have that.

[00:22:50] Speaker 05:
Let me just make sure I understand your position because I'm a little bit lost.

[00:22:53] Speaker 01:
Okay.

[00:22:55] Speaker 05:
The way I understand your position is you're establishing, you satisfy prong two with Loudermil. That's your primary argument. Correct. And your argument is that you cannot waive a post-termination hearing.

[00:23:08] Speaker 01:
Correct. Okay.

[00:23:09] Speaker 05:
Okay.

[00:23:10] Speaker 05:
And you don't have a case that says that piece, right?

[00:23:13] Speaker 01:
And we would say that there's no case on that because it's so well established through Loudermill and Copland Brown and 30 years of jurisprudence that in the fire service and law enforcement and public employment, if I say Loudermill, everyone knows what Loudermill means. It means pre-termination hearing and post-termination hearing. That is without doubt.

[00:23:35] Speaker 05:
So let's assume that it is waivable. Is it your then kind of secondary position? that it was not clearly and unmistakably waived on the face of this CBA just by reference to a different process.

[00:23:48] Speaker 01:
Absolutely. And it clearly established any fire chief, any police chief, any public employment manager would understand what Loudermill requires of that person to do.

[00:24:01] Speaker 05:
And what is your best case on what a waiver, a proper waiver that the Supreme Court or our court has recognized in this context requires? What is your best clear and unmistakable waiver case?

[00:24:14] Speaker 01:
I think it would probably be Penn Plaza from the Supreme Court.

[00:24:17] Speaker 01:
And then, again, the Herrera case and the Henni case, which the district court relied on. All those cases talk about the intersection between due process and collective bargaining. Here, we didn't have any of that. And so that is the real problem. And I will call your attention to Your Honor, is to the Copland Brown case out of this circuit that talked about this issue where the official was trying to suggest, I was just following the law. I didn't know that this was the law.

[00:24:50] Speaker 01:
And it had to do with the lateral mill, the post-hearing process.

[00:24:54] Speaker 01:
the right to a post-determination hearing. And what that court said was, defendants in this case were not mere minions obeying commands, but rather were directors and supervisors of the New Mexico State Personnel Office. Thus, they have expertise in hiring and firing of state employees, including relevant state and federal law. Accordingly, we found that law in question was clearly established and a reasonable director or supervisor of the state would have known that his or her activity violated plaintiffs of constitutional rights.

[00:25:24] Speaker 01:
That's the same thing here. Loudermill has been around for 40 years, 50 years. Copland Brown recognized that. When Copland Brown talked about it, the case talked about how this is a right that has been established over 30 years. So for the chief to say, I didn't know that Mr. Carter had a right to a post-determination hearing, or I didn't have any cases that say that, That's because there are no cases that say that. That lot of mail is so well established that that's what you need to do.

[00:25:56] Speaker 01:
Can a CBA provide for post-termination hearings? Sure, it happens all the time. In fact, most CBAs do that. This CBA, if you look at this CBA, interestingly, it has a grievance arbitration process. It just doesn't include discipline.

[00:26:12] Speaker 01:
So that's the curious thing here, right? The contract allows for an arbitration. I pick an arbitrator. The other side picks an arbitrator. We go and we call our witnesses and we cross-examine. Except when? Except if it's a discharge, if it's a discipline.

[00:26:27] Speaker 02:
They have a separate chapter on discipline as opposed to grievance.

[00:26:33] Speaker 01:
There's no separate chapter is just this is what happens beforehand. You get your notice. You get to write. That's all pre termination.

[00:26:40] Speaker 02:
That's what it's titled.

[00:26:42] Speaker 01:
Right. And then the only thing that talks about post termination is the chief is the final decision maker.

[00:26:47] Speaker 02:
And in fact, the newer it's article 21 is three little over three pages long. entitled disciplinary procedure and grievance procedure is the next chapter.

[00:26:59] Speaker 01:
Right.

[00:27:00] Speaker 02:
Article 22. Right. And it's just a little over a page. Correct. So it actually has, it's a longer chapter on discipline than grievance. You seem to suggest there wasn't anything about it.

[00:27:11] Speaker 01:
No, what I suggested, Your Honor, was that all that process is the pre-termination process and the judge found what happened here. Pre-termination wasn't enough to satisfy post-termination. And what the contract says there is with respect to post-termination, is the fire chief has the final decision. That's all that says in that provision. So that's the lacking, the nature of this contract, collective bargaining agreement, is that it's lacking any kind of consistency or faithfulness to Loudermill, Copland-Brown, and the case law that requires, in order to satisfy what processes do, What process is due here was, three years ago, was a post-termination hearing.

[00:27:58] Speaker 01:
That's what process was due. That didn't happen. And the chief should have known as a reasonable manager that was what was required. So the district court correctly denied his request for qualified immunity. Thank you.

[00:28:14] Speaker 02:
Thank you.

[00:28:17] Speaker 02:
You have about two minutes, I think, for rebuttal.

[00:28:31] Speaker 04:
Your Honors, I'll make this brief. I think the highlight here is that there is no case in which Loudermill is discussed in the CBA context that would have put Chief Beebe on notice that his conduct was unconstitutional in following the CBA to the T. And just to correct the record there, post-termination there is an appeal option in the CBA that Chief Beebe did follow.

[00:29:04] Speaker 04:
And then, you know, the CBA is clear that there is, that that is the post-termination process to which these union employees are due. Now, I think that interestingly, you know, Burt and Herrera both stand for the fact that in this circuit, Courts have found that the CBA can waive certain procedural due process rights.

[00:29:36] Speaker 04:
Herrera is particularly interesting because it says that there was no post-termination hearing. The union did not proceed to, did not pursue the arbitration provision that was in there, and there was no other option. So this employee, you know, was not entitled to, outside of what the union might want to do, a post-termination hearing, which is the most aligned case to what we can, you know, we have here.

[00:30:11] Speaker 04:
And that would not have put Chief Beebe on notice that he was required to go outside of the CBA provisions and provide a post-termination hearing.

[00:30:20] Speaker 02:
Your time has expired.

[00:30:24] Speaker 04:
Oh, then that's enough.

[00:30:25] Speaker 02:
Thank you, Your Honors. Appreciate it. Thank you, Counsel.

[00:30:29] Speaker 02:
Thank you, Council. Case is submitted. Thank you. Council are excused.