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this morning, which is 24-3169.

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I know I messed this up.

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Stamatsky versus Board of Commissioners of Gary County, Kansas.

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I'm sure Councilor Peralta can correct me, please.

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Good morning, Your Honors.

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My name is Chloe Davis, and I'm here on behalf of Appellant Michelle Steinmetz versus the County of Gary County, Kansas.

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May it please the court, Your Honors.

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This appeal arises out of Ms.

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Steinmetz's employment as the Director of the County of Gary County Visitors Bureau for the Board of County Commissioners of Gary County, Kansas.

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Ms.

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Steinmetz began serving in this role in 2017, and she remained in this role until her constructive discharge in June of 2021.

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Between 2017 and 2021, Ms.

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Steinmetz received favorable employment feedback from the county.

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Her work product was described as good and excellent.

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However, in 2021, when a new commissioner was elected to the board, Ms.

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Steinmetz began to notice concerning behavior.

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For example, Commissioner Giordano, which was the newly elected commissioner,

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requested that Ms.

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Steinmetz allocate government funds to certain line items without proper board approval, which was outside of county policy.

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Commissioner Steinmetz also refused to allocate necessary funding to the visitor's bureau, which was also outside of county policy.

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Ms.

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Davis, if I may jump right in.

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In rejecting the retaliation claim, the district court cited

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our decision in Leverington.

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And in that case, a certain language sticks out to me which says that essentially what actually the crux of the matter, and I think Leverington used that word, in a public concern inquiry is what is actually said.

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Well, it gives me some pause when I look at the amended complaint.

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that the amended complaint never says what your client said.

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It speaks in generalities about what she talked about in terms of subjects and topics, but doesn't use the language of what she said, which if you look at a number of our cases, they in fact say I said X, Y, and Z at X setting.

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Why isn't that a problem for you?

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Yes, Your Honor, and I do believe that that is the crux of what's before the court today, is essentially the proper pleading standard.

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I will agree, Your Honors, that the Ameda complaint does not contain the exact words of what Ms.

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Steinmetz said at the meetings and her speech.

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In Leverington, I do believe, however, that they had the exact language of what Ms.

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Leverington said to the police officer,

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were able to determine based on her speech that it was her speaking to personnel issues or a personal issue with the officer that was involved.

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I would also point out, however, Your Honor, that this court does have decisions where the exact speech was not analyzed and the court was able to analyze the speech based off of topics and categories, which is reflected in the Garcia case.

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The court yet determined in Garcia that

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The speech was related to personnel matters or personal grievances in the workplace.

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However, they were able to still analyze the topics or categories of the speech as opposed to having the actual speech.

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Your Honors, our main argument here today in relationship to the amended complaint not including the exact language would be that Ashcroft doesn't require that.

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It requires a

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a pleading standard where there's enough factual information to state a plausible claim for relief.

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And here we believe that requiring the pleading to contain the exact language of what was stated would be beyond that threshold or that standard.

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Well, go ahead.

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Well, on paragraph 32, and I'm going to be referencing your amended complaint, on paragraph 32,

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It seems to me at least one thing that gives me some pause, I'm not saying it's definitive, but one thing that gives me some pause is that even if you get out of the realm of language, one has to sort of piece together exactly what it is that is alleged to be problematic, well, of concern, of public concern in the speech.

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For example, in paragraph 32, it says that plaintiff raised concerns about, quote, spending allocations

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But that doesn't tell us what those concerns were.

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It doesn't tell us how those concerns relate to other paragraphs in the complaint.

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And so, I mean, you're making us work here in a way that I'm not sure that ICBAL does require.

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I mean, for example, you go to paragraph 17, and it speaks about allocations related to the Convention and Visitors Bureau.

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Are you saying that that's a matter of public concern?

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Your Honor, I think the distinction here would be that it was Commissioner Giordano's interference with the allocations to the visitor's bureau.

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And looking back at the language of paragraph 32, I should have included references, for example, the speech referenced in paragraphs 17, 18, and 19, because those are the concerns that Ms.

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Steinmetz spoke out about.

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Both the interference with the allocation,

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the allocation issues themselves being outside of county policy, and then the allocation to certain line items, which were also outside of county policy.

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So 17, 18, and 19, as it relates to, and the Giordano doing things that are against county policy, let me just put that in one category for a second.

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The idea that he wouldn't approve defendants, well,

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He wouldn't approve allocations related to the Convention and Visitors Bureau.

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Why doesn't that just put us in the zone of, you know, that's a personnel problem.

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I mean, that's her purview, right?

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And he wouldn't give her the money she wanted to do her job in that position.

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What is a public concern about that?

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Why do I care about that?

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Sure.

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Thank you, Your Honor.

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Commissioner Giordano refusing to allocate proper funding to the Visitors Bureau would fall beyond a personnel grievance issue because it does impact the community at large.

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They are dealing with tax dollars and properly funding certain departments would be, I think, an issue that would go beyond any personnel grievances between Ms.

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Stymates and Commissioner Giordano.

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Let's try Garcetti in which you had

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I think at the heart of a public concern, a prosecutor and decisions that a prosecutor makes about the liberty of individuals.

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Well, the Supreme Court said that was a personnel problem, right?

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That's your personal problem.

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And so why is if that?

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is a personnel problem, why would I care about the Convention and Visitors Bureau if the Supreme Court didn't care about that public issue in Garcetti and, well, it wasn't a public issue, the issue about the prosecutor there?

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Yes, Your Honor.

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I think here there would not be a large difference in the analysis there.

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However, I think I would just revert to the answer about the fact

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that the refusal to allocate necessary funding does impact the community at large and not just Miss Steinmetz.

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So in Garcetti, it impacted one person's freedom of speech who was the plaintiff appellant.

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Here, refusal to properly allocate funding would impact the community at large.

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Let's focus for a second on paragraph 16, and in particular, the line that says, Defendant Giordano would request that plaintiff allocate funds to certain lying items that were essentially against county policy.

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Give me your best argument as to why that is a matter of public concern.

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And what you would identify is probably the lead case that I should look to.

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Is it Garcia or some other case in determining that I should view that as a matter of public concern?

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Your Honor, so there are several cases actually that indicate that public officials doing things that are outside of that public entity's policies are considered matters of public concern because it shows the public officials impropriety or unethical behavior.

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And I apologize.

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You initially listed 17, 18, and 19.

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Don't you believe that that's in that within the zone of what you're concerned about too?

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Yes, Your Honor.

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I would also include 16.

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I apologize.

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Okay.

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Okay, please go on.

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So I won't go back to where I was at in my outline just because we've already discussed it.

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But I will just reiterate here, Your Honors, that the applicable standard is the Ashcroft-Iqbal standard and not some other heightened pleading standard.

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And we would argue that Judge Melgren's decision would demand a higher pleading standard based on the fact that- Can I ask you, weren't you counsel in the Von Busch case?

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I was.

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OK, how do you distinguish that case from this one?

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So first, Your Honor, I will clarify that in the Vaughn Bush case, they were analyzing a different prong of the Garcetti pickering test.

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But it was the same problem.

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Same defendants, same problem in the complaint.

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Yes, Your Honor, it was the same pleading standard issue.

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And the point I believe that that case hinged on was the courts could not determine whether or not the

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speech related to Ms.

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Von Bush's official duties because the complaint did not include any description of those official duties.

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While that would apply here, it would be our position that that was not an issue at the lower court.

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Judge Melgren didn't reach that analysis.

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He found that these, that Ms.

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Stymates was speaking as a private citizen and that she was not speaking to matter, or I'm sorry,

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not speaking to her official duties.

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But another panel from this court determined that the complaint in that case also did not meet the requisite pleading standards.

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And I guess I'm just trying to figure out whether it's the same defendants, the complaint's similar.

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Granted, it was a different prong, but ultimately it all comes down to the same issue, not enough facts to substantiate the different elements that you're required to meet.

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So I'm just trying to figure out what is the difference fundamentally as a substantive matter.

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As a substantive matter, Your Honor,

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The pleading standard, there would be no difference.

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We would argue the same thing that we argued on that case, that Ashcroft's standard does not require the specific speech to be included in the complaint.

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So as a substantive matter in terms of pleading standard, what the court determined in von Busch would also apply here.

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I like to think of myself as a pragmatist.

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Why not just add two, three more paragraphs in the complaint?

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You could have solved both of these problems in both of these cases, it seems to me.

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Yes, Your Honor.

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Several years later, I do wish that I could go back and do that.

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It would have made things much easier.

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Not that I wouldn't want to be here today.

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Oh, yes.

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Oh, when I was on that side of the bench, I loved it.

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Yeah.

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Yeah.

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If that were a path still available, I would have taken it.

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But you were alerted to it by their motion.

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I was.

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And didn't respond.

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If this had been a pro se complaint, I think a lot of the magistrate judges would say, you need to tighten up your complaint.

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You need to add some stuff.

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That's for pro se's.

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And the pro se would put what facts were available.

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Here we have counsel.

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And we don't need to.

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help you in those ways.

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You have a responsibility.

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So why not respond to the motion?

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Yes, sir.

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So you mean the initial.

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So the complaint was a complaint.

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There's a motion to dismiss on this ground.

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And the easiest way to respond would be to request an opportunity to amend the complaint.

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Yes, your honor.

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I

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To answer your question directly, I was approximately one year out of law school at this time.

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That's not an excuse, which leads me back to my answer that, looking back, I should have done that.

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What I will say here is that, looking back at my analysis at that point in time, I did believe that what I had included, which was that Ms.

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Steinmetz spoke out about Commissioner Giordano's improper funding allocation, what I described in the complaint.

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I did feel at that point in time, and I still do,

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that it satisfies the Ashcroft Iqbal standard.

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Council, let me ask you this, though.

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You said that the duties component number one on Garcetti is not at issue.

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Well, your opposing council is putting that forward as an alternative grounds for affirmance.

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So it is before us, right?

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Yes, Your Honor.

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And to that point, first, I would request that

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The court opts not to exercise the discretion instead of remand.

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However, and I would like to reserve at least one minute, but I do want to finish my answer to your question.

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We would argue that these statements were made at public forum meetings to other members of the public and not in any way pursuant to her official duties.

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And I think that there are several cases that indicate that

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Because these statements were made at events that were outside of her duties, she was not at any type of visitors bureau event sponsored by the visitors bureau full of visitors bureau personnel that this would fall outside of her official duties.

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She was not the commissioner's supervisor.

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She had no duty to report this behavior on the part of the commissioner.

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So we would argue that it does fall outside of the

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outside of her official duties.

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You'll get your minute.

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Let me ask you this question.

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I take it Count 2 is not at issue here, right?

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Correct.

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Okay.

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Thanks.

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May it please the court.

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Patrick Linden on behalf of the Board of County Commissioners for Geary County, Kansas.

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The present appeal turns upon the question of what is necessary for a former government official to allege a plausible claim that she engaged in speech protected by the First Amendment as part of pleading an employment retaliation claim under 42 USC Section 1983.

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And here we're talking about the first two prongs of a five-prong test.

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It is not enough to merely allege that one engaged in protected speech to survive a motion to dismiss.

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Rather, there must be sufficient fact information in a plaintiff's pleadings to demonstrate, one, that the speech was not made as part of the former official's duties, or two, that it involved matters of public concern.

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Here, the district court dismissed plaintiff's claims, finding that the plaintiff's amended pleadings

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lacked sufficient information to plausibly allege that she had engaged in protected speech regarding matters of public concern.

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While that decision was correct, it is Appellee's position that based upon the applicable cases and the conclusory allegations of the pleadings, that there is also an affirmative basis, an alternative basis rather, to affirm the dismissal of plaintiff's claims in this matter.

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Well, let me start with public concern.

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At least as I read your brief,

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It suggested that she needed to plead counsel, needed to plead specific quotations in her complaint to provide the sufficient facts to support a public concern argument.

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Is that your position?

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Quotations would certainly be most likely to get you over the threshold.

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I think you need factual information, not just a conclusory statement of public concern.

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Well, she does more than, I mean, this amended complaint does more than say the plaintiff spoke on matters of public concern.

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She identifies topics, as she pointed out, that the plaintiff spoke on.

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Does she not?

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She does include topics.

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However, there is not enough about the context of those topics, the form of discussion, to really get an understanding of whether those

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issues rose to a level of public concern because there's a continuity there.

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Let's try this.

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In footnote four of a case called Morris, which is one of our cases, our court said this, quote, a narrow range of speech where the subject matter is clearly identified, that there's a narrow range of speech where the subject matter is clearly of public import.

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And that narrow range of speech

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included the area of corruption.

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Why isn't it enough then, and to be clear, what the court was saying that is if you identify certain topics, they are invariably of public concern and therefore they should be matters that within the scope of the legal test would be sufficient.

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Well, why isn't it enough

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that plaintiff here pled that Mr. Defended Giordano was doing things that were against county policy.

[00:19:06] Speaker 01:
Why doesn't that sniff of corruption and why therefore wouldn't it be enough to say that to let you know that the public in that county really cares about him violating county policy?

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I would respond that irregularities or deviations from public policy do not equate corruption per se.

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And therefore, you need more.

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I hear you saying that, but why is that necessarily the case?

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If we're construing the well-pled facts and the lightness favorable to the plaintiff, if the plaintiff says that he was violating county policy, well, it would have been lovely if there were more facts in there, but why is it that a topic that the public would care about?

[00:19:50] Speaker 01:
When it goes to allegation of dollars, mind you, and public dollars,

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I think it's a matter of the significance of the issue.

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I mean, as I think it was discussed in during Appellant's opening argument, that there are a range of these issues.

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Not every deviation from a county's policy rises to a level of public concern.

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It could be simply an issue of minimal importance.

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And we need more in the pleadings to know whether it crosses that line.

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Otherwise, every minor tick tacky variation from county policy

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suddenly becomes the basis for a potential Section 1983 claim.

[00:20:28] Speaker 02:
I think there needs to be some articulation of what the issue of public concern was and to give the court, the district court in this instance, enough information to understand that yes, this rose to a level where it was a matter of public concern and not simply a matter of disagreement between two government officials about how county policy should be executed.

[00:20:49] Speaker 01:
If there are government dollars at play,

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And there is an intentional allocation of those dollars in a way that violates county policy.

[00:21:00] Speaker 01:
What is it that you think we should have that would allow us to determine that it is a matter of public concern?

[00:21:08] Speaker 01:
I mean, I get your point.

[00:21:09] Speaker 01:
I mean, I get your point that there's a point where it's essentially de minimis.

[00:21:13] Speaker 01:
But really what I'm trying to focus on is in the context of a motion to dismiss.

[00:21:19] Speaker 01:
I mean, you can win later.

[00:21:21] Speaker 01:
I mean, an emotion for summary judgment.

[00:21:23] Speaker 01:
Why isn't that enough in a motion to dismiss to get you over the hurdles?

[00:21:28] Speaker 02:
You know, in this instance, I think if we're talking about budgeting on line items, it might be the criteria.

[00:21:35] Speaker 02:
What are the line items?

[00:21:37] Speaker 02:
Are we talking about a matter of a few dollars on the CVB's budget?

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Are we talking an item of $1,000 or $10,000 on the line on budget?

[00:21:47] Speaker 04:
Isn't that what Discovery is for?

[00:21:49] Speaker 02:
Ultimately, Discovery would reveal that.

[00:21:51] Speaker 02:
But here, we are trying to at least determine if there is enough to pass the initial threshold.

[00:21:58] Speaker 04:
The initial threshold being plausible.

[00:22:00] Speaker 02:
Plausibility, that there is enough that the issue at play is truly a matter of public concern.

[00:22:06] Speaker 02:
And here, the allegations are so vague and conclusory, we don't know if it crosses that threshold.

[00:22:12] Speaker 02:
What does plausible mean?

[00:22:15] Speaker 02:
Plausible means, at least in my mind, more likely than not.

[00:22:20] Speaker 02:
It's not quite a preponderance, but does it pass?

[00:22:24] Speaker 02:
I start sounding like we're talking about a pornography case, but does it pass the smell test?

[00:22:30] Speaker 02:
You kind of know it if you see it.

[00:22:33] Speaker 02:
But here, again, we're dealing with something that is so vague.

[00:22:36] Speaker 01:
That's worrisome.

[00:22:38] Speaker 02:
Well, I reach for that simply because of the

[00:22:42] Speaker 02:
We're talking about something where there is not a clear, bright line that is drawn by the cases, nor is it really possible, given the large variety of circumstances that can come up.

[00:22:52] Speaker 03:
So what's the underlying principle?

[00:22:54] Speaker 03:
You kind of said, does this case deserve to go forward?

[00:22:59] Speaker 03:
And that sounds like a pragmatic decision, not a statistical one.

[00:23:06] Speaker 03:
And it seems like it depends a lot on context.

[00:23:10] Speaker 03:
For example,

[00:23:11] Speaker 03:
We're much more lenient, I think, in finding the complaint plausible when the essential facts are known by the defendant, not by the plaintiff.

[00:23:23] Speaker 03:
Here we have something that the plaintiff knew, probably knew better than anybody else.

[00:23:29] Speaker 03:
Does that factor into whether this is plausible, meaning there's enough here to justify proceeding?

[00:23:40] Speaker 03:
I think that's an important... Just using the word plausible gets me very... doesn't get me very far.

[00:23:46] Speaker 02:
You draw an important point.

[00:23:47] Speaker 02:
I mean, the plaintiff is the master of their own complaint, and here we're dealing with the plaintiff's own speech, which presumably she knew the contents of, the context of it, what was said.

[00:23:56] Speaker 02:
She is in a position to provide that information.

[00:23:59] Speaker 02:
It is not information necessarily that a defendant would have, because here if there are allegations of speech in private context, that may not be circumstances where a defendant has

[00:24:10] Speaker 02:
is aware of those particular contexts or what was said.

[00:24:14] Speaker 02:
So is that bare allegation enough to put a defendant on notice of what was said, the topics of the speech, whether it's a matter of public concern?

[00:24:24] Speaker 02:
I would submit that it's not.

[00:24:28] Speaker 04:
Well, I think Judge Hart's question is a good one, and it's something I've been thinking about a little bit.

[00:24:33] Speaker 04:
I mean, the point, I think, is to separate those cases which potentially have some merit and from those that are completely hypothetical, conjectural, what have you.

[00:24:45] Speaker 04:
Doesn't this complaint, I mean, whether or not the exact language that was used, doesn't

[00:24:52] Speaker 04:
You get the gist of it.

[00:24:53] Speaker 04:
The plaintiff is complaining that she was fired after reporting misconduct in her private capacity.

[00:25:01] Speaker 04:
That's a plausible allegation.

[00:25:03] Speaker 04:
It seems like we're playing a game of gotcha with these 12b6 motions, that if you don't have enough in there, then we're going to, you know, you're going to ask the judge to toss your case.

[00:25:13] Speaker 04:
But ultimately, could her complaint have been more thorough?

[00:25:16] Speaker 04:
Sure.

[00:25:17] Speaker 04:
Is it a paragon of pleading?

[00:25:19] Speaker 04:
No.

[00:25:20] Speaker 04:
But does it set out a plausible claim for relief?

[00:25:24] Speaker 02:
Again, I would argue that it doesn't.

[00:25:28] Speaker 02:
There is one important gap here in the pleading.

[00:25:32] Speaker 02:
The pleading starts out with a discussion of things that the plaintiff observed and this issue with the line items.

[00:25:38] Speaker 02:
and the interference, these are things that the complaint says that the plaintiff observed.

[00:25:43] Speaker 02:
Then it shifts to what was said.

[00:25:45] Speaker 02:
And if you take a look at what was actually stated, there is no connection directly made between the two.

[00:25:52] Speaker 02:
There is no allegation that what she said in private or in public context were the same issues identified earlier in the pleading.

[00:26:03] Speaker 02:
Now, I guess it was a question whether you can raise an inference whether she spoke on those things.

[00:26:08] Speaker 02:
I would respond that I don't know if that is a reasonable inference based upon what is alleged and given the fact that, again, the plaintiff is the master of their own complaint.

[00:26:18] Speaker 02:
If there was a connection, why was that not stated in the pleading?

[00:26:22] Speaker 01:
Well, again, we can go back to whether it should have been more artfully crafted.

[00:26:28] Speaker 01:
Yes, but I don't know whether it takes a great leap

[00:26:34] Speaker 01:
to look at paragraph 32 which uses exactly the language of allocations, spending allocations, which could encompass both

[00:26:44] Speaker 01:
the comment about Giordano's spending money on lying items that were beyond policy or, you know, yes, I think that was the allegation in 16 or it could relate to the convention bureau.

[00:26:57] Speaker 01:
But what we do know is the same language, spending allocations were raised by her in her private capacity.

[00:27:04] Speaker 01:
That's what 32 says.

[00:27:06] Speaker 01:
You go back to 16 and 17, you know, I don't think it takes a rocket scientist to connect those two.

[00:27:12] Speaker 01:
I mean, so why is that not

[00:27:14] Speaker 01:
Sufficient.

[00:27:16] Speaker 02:
Again, I don't think that connection is explicitly made.

[00:27:19] Speaker 02:
I think it's inferential.

[00:27:21] Speaker 02:
And I would submit that it's not necessarily a reasonable inference.

[00:27:24] Speaker 01:
It is inferential, but inferences are taken in the light most favorable to the plaintiff.

[00:27:29] Speaker 02:
Reasonable inferences, yes.

[00:27:30] Speaker 01:
OK.

[00:27:31] Speaker 02:
Reasonable inferences, yes.

[00:27:34] Speaker 02:
So I'm down to three minutes.

[00:27:35] Speaker 02:
I want to just briefly, with the court's permission, talk about the issue that the district court decided on the public

[00:27:43] Speaker 02:
whether or not the speech was in connection with the plaintiff's public duties.

[00:27:47] Speaker 02:
And here, I think, as Judge Garcia noted, there is some tension between our case and the way the district court handled it here and the Von Bush case that this court recently decided back in December.

[00:28:00] Speaker 02:
And in that case, on very similar allegations, the only difference being different plaintiff, different position, and an allegation of termination in Von Bush versus constructive termination in this case,

[00:28:11] Speaker 02:
A three-judge panel of this court found that the plaintiff's petition did not pass muster in the sense that it did not plead speech that was outside of the scope of the former official's public duties.

[00:28:24] Speaker 02:
And I think, given that the two complaints closely parallel each other in their substance on this issue, we would disagree with how the district court resolved that issue.

[00:28:35] Speaker 02:
Reading the district court judge's order and memorandum,

[00:28:39] Speaker 02:
It appears that a lot of the court's concern was, or its rationale was, that she was not being paid for the speech.

[00:28:49] Speaker 02:
I am not certain where that finding came from.

[00:28:52] Speaker 02:
It is not alleged in the petition anywhere.

[00:28:54] Speaker 02:
In fact, we have the same problem in this case as we did in von Busch, in that the petition does not, or the complaint, does not say what the plaintiff's duties were, what the scope of the duties were,

[00:29:06] Speaker 02:
and to demarcate how the speech in question was outside of the scope of those duties.

[00:29:11] Speaker 02:
All we have is an inclusory statement.

[00:29:13] Speaker 01:
It does say that she was there in a private individual capacity.

[00:29:18] Speaker 01:
It says that she showed up and spoke in that capacity.

[00:29:23] Speaker 01:
I mean, you can claim that's conclusory, but it seems to me that when you say you're in a private individual capacity, that's a capacity as opposed to some other capacity, which would be an official capacity.

[00:29:34] Speaker 01:
And so she says that throughout.

[00:29:38] Speaker 01:
So why isn't that enough?

[00:29:40] Speaker 02:
I think that is conclusory, though.

[00:29:42] Speaker 02:
We don't know, again, the context of the speech, the nature of the speech.

[00:29:47] Speaker 04:
How would she do it in a way that's not conclusory?

[00:29:52] Speaker 04:
How do you say, I'm speaking in my private capacity in a non-conclusive way?

[00:29:57] Speaker 02:
You know, ultimately, and this gets to an issue that was also addressed in the non-push discussion.

[00:30:02] Speaker 04:
Wait, are you going to answer my question?

[00:30:04] Speaker 02:
Yes.

[00:30:05] Speaker 02:
It is that I think she has to allege

[00:30:08] Speaker 02:
on that first prong, that also the speech falls outside the scope of her official duties.

[00:30:13] Speaker 02:
I mean, she could say all day long that, oh, I'm speaking in my personal capacity.

[00:30:16] Speaker 02:
But if it is on the very things that she has official responsibility for, I don't think her own statement to that necessarily is merits credit.

[00:30:25] Speaker 01:
If she alleged that, wouldn't we be here with you telling us that that was a conclusory statement, that she spoke outside of her official duties?

[00:30:32] Speaker 01:
That is a conclusory statement.

[00:30:34] Speaker 02:
Well, that is.

[00:30:35] Speaker 02:
But what I'm saying is that,

[00:30:37] Speaker 02:
You have to look at the scope of what her duties were.

[00:30:40] Speaker 02:
We don't know that information.

[00:30:42] Speaker 01:
We know that she was a county employee.

[00:30:44] Speaker 01:
I mean, the first paragraph, I'm an employee of the Defended Board of County Commissioners.

[00:30:50] Speaker 01:
And then she later tells us, when I showed up at these meetings, I was speaking in my individual capacity.

[00:30:56] Speaker 01:
Doesn't that establish, by the virtue of the complaint, a juxtaposition between those two?

[00:31:01] Speaker 02:
I do think there's a difference here when you're talking about an employee who's the head of the organization talking about issues for that organization.

[00:31:09] Speaker 02:
And I don't think they can necessarily easily step outside of that role.

[00:31:13] Speaker 02:
She was the head of the Convention Business Bureau talking about matters of import to that organization.

[00:31:19] Speaker 02:
I see that I am running out of time.

[00:31:22] Speaker 02:
First, are there any other questions from the panel?

[00:31:26] Speaker 02:
All right, very good.

[00:31:28] Speaker 02:
Well, we would therefore ask that the court affirm

[00:31:31] Speaker 02:
order dismissing the claims against the Board of County Commissioners in all respects.

[00:31:36] Speaker 02:
I appreciate the panel's time.

[00:31:37] Speaker 02:
Thank you.

[00:31:40] Speaker 01:
One minute fifteen, please.

[00:31:44] Speaker 01:
Yes.

[00:31:48] Speaker 00:
Thank you, Your Honors, for allowing rebuttals.

[00:31:51] Speaker 01:
Just wait a second.

[00:31:56] Speaker 00:
Okay.

[00:31:57] Speaker 00:
Okay.

[00:31:57] Speaker 00:
Thank you, Your Honors, for allowing rebuttal.

[00:31:59] Speaker 00:
I did want to touch on, well, I want to make two main points here, of course, between fielding questions.

[00:32:05] Speaker 00:
I would like to bring to the court's attention the Garcia case, which was attached as an attachment to the brief.

[00:32:13] Speaker 03:
That's district court case, right?

[00:32:15] Speaker 00:
Correct, Your Honor.

[00:32:17] Speaker 00:
It is actually the case that Judge Melgren cited.

[00:32:19] Speaker 00:
It's in a footnote when he reached what I see as the crux of his decision, where he says that there's not enough detailed information to get to the speech to determine whether or not it touched on a matter of public concern.

[00:32:33] Speaker 00:
In Garcia, the Garcia court specifically said that although that complaint did not include the exact specific language, that it did include topics or categories of information and speech.

[00:32:48] Speaker 01:
Although great wisdom does come from district courts.

[00:32:51] Speaker 01:
I was going to say we're a fan of district courts here.

[00:32:53] Speaker 00:
It is a district court.

[00:32:56] Speaker 01:
So I think you might be better served by seeing if you could find a case from this court that would help you.

[00:33:02] Speaker 00:
Yes, Your Honor.

[00:33:03] Speaker 00:
And I agree.

[00:33:05] Speaker 00:
I think more so I'm pointing out that Garcia does not support Judge Melgren's conclusion there.

[00:33:15] Speaker 00:
I would also like to point out, and the judges have already kind of touched on this.

[00:33:22] Speaker 01:
Time is fleeting.

[00:33:23] Speaker 01:
Your time has up again, so you better make your point quick.

[00:33:25] Speaker 00:
Yes, Your Honor.

[00:33:26] Speaker 00:
She was at a public monthly meeting in her private individual capacity.

[00:33:30] Speaker 00:
She was complaining about the commissioner trying to allocate funds outside of county policy, and then she was constructively discharged.

[00:33:39] Speaker 01:
Thank you, counsel.

[00:33:40] Speaker 01:
Thank you.

[00:33:41] Speaker 01:
Case is submitted.