[00:00:00] Speaker 04:
Case number 20-5295, Jody Breiterman, appellant, versus United States Capitol Police.

[00:00:07] Speaker 04:
Ms.

[00:00:07] Speaker 04:
Chambers for the appellant, Ms.

[00:00:09] Speaker 04:
Cindyann for the appellant.

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All right, Ms.

[00:00:15] Speaker 02:
Chambers, we'll hear from you.

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Thank you.

[00:00:19] Speaker 03:
May it please the court, Anita Chambers for appellant Jody Breiterman.

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There are two issues before us.

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First, the balancing of interest under the First Amendment, second,

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the standard for comparator evidence under Title VII.

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As to the First Amendment claim, the underlying facts are critical.

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On January 29th, 2015, a male officer left a loaded handgun in a restroom of the Capitol Visitor Center.

[00:00:45] Speaker 01:
Council, may I suggest that we have regular briefs so we're familiar with the facts.

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Yes, Your Honor, I will skip ahead.

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As it relates to the First Amendment claim,

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and construing all facts in light most favorable to Mr. Breitermann, Breitermann showed that her interest outweighed that of the government.

[00:01:06] Speaker 02:
In Hull versus Ford, the DC Circuit instructed- Before we get to that argument, can we get to whether or not under Garcetti, she's speaking as a private citizen.

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Isn't this an instance where

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The same as Garcetti, she's disclosed something that she has specifically been tasked to investigate.

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I mean, this was her job.

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She was doing her job by taking this photo.

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In this photo that was disclosed, isn't it completely akin to the memo that was disclosed by the prosecutor in Garcetti and therefore outside the protection of the First Amendment?

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Your honor, I think that this case is distinguishable from from Garcetti for a few reasons.

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And first, I just want to point out as a preliminary matter that the lower court did find that Breitermann was speaking out as a private citizen on a matter of public concern.

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But going to your question, we review all of this de novo.

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So yes, your honor.

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And so Breitermann was one of several officers who reported to the scene and took a photo.

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Several other officers took a photo.

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the actual incident is different than the memo in Garcetti because the event was in a publicly viewable space.

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So not, it wasn't that a Capitol police officer could be the only person taking that photo.

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Anyone who had access to that bathroom could have taken that photo, could have viewed that photo.

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And so in that way, the actual subject matter is distinguishable from that of Garcetti.

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But the matter was under investigation.

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So disclosure of a matter that was under investigation seems to be contrary to the powerful government's interest.

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Well, Your Honor, Ms.

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Breitman didn't know whether or not the matter was under investigation.

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She was never contacted.

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She was never told that there was an investigation and the officer who left the gun

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was carrying the gun and on duty just days after.

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So she did not know that there was an investigation.

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Further, the record shows that there are other comparators who took photos, for example, of a car crash where there was an active criminal investigation and Capitol Police did not demote those officers.

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So going back to the balancing of interests, what is key here is that Breitermann's disclosure was regarding something that was a pattern at Capitol Police.

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The reporter who reported on this incident.

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Can I interrupt to just follow up on Judge Silverman's question?

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Does it matter whether she knew that it was under investigation or does it matter that or is the relevant point that it was under investigation?

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And do you have any authority to support that First Amendment protection turns on whether she knew that it was under investigation?

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Your Honor, I believe that the elements to prove a First Amendment retaliation claim do not include that requirement of whether something was in investigation or even more specifically to whether it was a matter of public concern or under her duties.

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So, so no, and I don't have any authority on that particular point.

[00:04:57] Speaker 02:
All right, thank you.

[00:05:01] Speaker 03:
So, going back to the incident of the gun.

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The reporter had been writing articles on unattended guns left at Capitol Police for months prior to publishing the photos that Breitermann provided.

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And so this was a pattern.

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This was not an isolated incident.

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This was a pattern of unattended guns that were continuing to happen.

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So when Breitermann

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spoke to the reporter Hess and provided the photo.

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She was doing it out of public concern for a continual harm that was not being addressed.

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And it continued to happen for many months.

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In fact, when the investigator talked to Breitermann, the reporter talked to Breitermann, she knew of two other instances of unattended guns, which Breitermann did not know about.

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What about the government's concern that as a supervisor,

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she would jeopardize her relationship with subordinates by turning over information to the press that embarrassed other people, whether they were under investigation or not.

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Wouldn't that undermine her trustworthiness from the point of view of subordinates?

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Well, there's a couple of points on that.

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First,

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Capitol police does not consistently discuss a supervisor and its role in discipline.

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In other cases where there are officers who are of higher rank than Ms.

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Brightman commanders, Capitol police makes no mention about trust supervision or the impact on subordinates.

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Well, are there circumstances like this?

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Well, I mean, if I were an officer under your clients,

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supervision, I would not feel confident that she would support me in situations similar to this.

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Right.

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Well, Your Honor, Ms.

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Brewerman, before this had occurred, had been an officer, had been a sergeant for 13 years and was very well regarded as the record shows.

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So this was truly a matter of

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A very public public safety issue that was continually to be a problem that she spoke out about.

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And so that that's the difference.

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And I understand your point about trusting a subordinate.

[00:07:27] Speaker 01:
But again, this reporter on the support and trusting the supervisor.

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The subordinate trusting the supervisor and

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Well, I think that Miss Breiderman's track record of the past 13 years and the fact that she was a sergeant speaks for itself.

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And also this officer who left the gun was not one of her subordinates.

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It's true.

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But if I were one of her subordinates, I would feel vulnerable to similar treatment.

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Isn't that logical?

[00:08:00] Speaker 03:
Yes, Your Honor.

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But when other

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supervisors have done things like solicited sex in a text message to a subordinate, Capitol Police did not raise the issues of trust or trusting a subordinate and did not demote that commander.

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So I agree with you, but Capitol Police has not been consistent in the way it administers discipline.

[00:08:28] Speaker 01:
You make a point, incidentally, of how much time it took

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as indicating a procedural irregularity.

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But don't you, isn't it possible that the government was thinking, this is a touchy case.

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We have to put a lot of attention to it and reasonable men and women could debate on what the proper remedy was.

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I think that just took into account.

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And of course, your client had indicated

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the likelihood of protesting.

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So you want to make sure you're doing the right thing.

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So I don't see why the length of time it took them to decide what to do and that there was debate on that question undermines the government's interest at all.

[00:09:20] Speaker 03:
Well, your honor, that was just one factor in showing pretext because Capitol police itself admits that that is probably one of the longest investigations it has done.

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And further, the investigation became a phishing expedition into looking into Breitermann's phone and doing another investigation into text messages she had with supervisors.

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So the length of time and the scope, I think, show that the length of time was unreasonable and Capitol Police admits that itself.

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Further, the officer who actually left the gun

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was not put on any type of suspension, was not reframed.

[00:10:06] Speaker 01:
But of course, she didn't know that.

[00:10:12] Speaker 03:
Well, she saw him a few days after the incident carrying a gun and on duty.

[00:10:18] Speaker 01:
Yes, but that doesn't in any way indicate what discipline is going to be imposed.

[00:10:24] Speaker 01:
And in fact, discipline was imposed.

[00:10:27] Speaker 01:
Correct.

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He received a few days suspension while Miss Breitermann

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got demoted.

[00:10:35] Speaker 01:
You're not saying there are comparators, are you?

[00:10:39] Speaker 03:
This particular comparator, no, Your Honor.

[00:10:42] Speaker 03:
In the record, we provided other comparators, including people of more senior rank than Ms.

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Breiterman.

[00:10:51] Speaker 02:
Can you just explain why the emergency suspension was a procedural irregularity?

[00:11:01] Speaker 03:
Yes, Capitol Police testified that emergency suspensions are rare.

[00:11:07] Speaker 03:
They're limited to very specific situations that did not meet Ms.

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Brighterman's situation.

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But for Ms.

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Brighterman, they put her on emergency suspension and then kept her on suspension for 11 months.

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So it's by Capitol Police's own admission that this is unusual.

[00:11:28] Speaker 02:
And if she put on emergency suspension for 11 months or she was put on emergency suspension for a day and then put on administrative leave with pay for 11 months?

[00:11:41] Speaker 03:
The latter, Your Honor.

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It was initially an emergency suspension and then she was put on administrative paid administrative leave where she had to stay at her house during working hours and not leave.

[00:11:52] Speaker 02:
And paid administrative leave is not a procedural irregularity, right?

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Correct.

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The issue is the length of time, the 11 months.

[00:12:03] Speaker 02:
So the irregularity is using emergency suspension to initiate things and having the administrative leave with pay last for 11 months rather than what?

[00:12:22] Speaker 02:
I mean, how long was it supposed to last under the procedures?

[00:12:27] Speaker 03:
Well, I think the procedures don't specify a timeframe, but all other comparators that were in the record, the record doesn't show anyone else on administrative leave for anywhere near 11 months.

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If anything, the officers just received a few days suspension or lesser punishments like written warnings.

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And just one point, if I may, what is critical is that the information that Ms.

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Brightman was trying to disclose, it was embarrassing.

[00:13:03] Speaker 03:
It did paint Capitol Police in a negative light, but that is why it's so important that the First Amendment protects this type of disclosure.

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This type of information is helpful for the public to know.

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It's helpful for public safety.

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In fact, Capitol Police and Congress

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tried to enact things in light of learning of this information.

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So though it may have been embarrassing to capital police and negative, that is precisely why it is so important to protect.

[00:13:32] Speaker 01:
Council, one of the things that puzzles me and I see very little in the case law that illuminates, I think there's only one case we could find where the matter was even mentioned.

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Does it make any difference whether someone openly

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expresses a view as opposed to whether one leaks to the press about a fellow officer?

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I don't believe that that is one of the elements that's necessary for stating a retaliation claim under the First Amendment.

[00:14:09] Speaker 03:
And I agree with you, Your Honor, that there is limited case law about that nuanced distinction of whether it's publicly expressed or not.

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In this case, Capitol police asked Breitermann if this was her photo.

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She admitted that it was.

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And so ultimately Capitol police and many of its officers knew that the photo that was in the article was from Breitermann.

[00:14:35] Speaker 02:
Judge Rao, I apologize.

[00:14:36] Speaker 02:
I may have been interrupting you while you were about to ask a question.

[00:14:39] Speaker 02:
Did you have a question for counsel?

[00:14:42] Speaker 04:
No, that's fine.

[00:14:42] Speaker 04:
Thank you.

[00:14:45] Speaker 03:
I see I'm over my time.

[00:14:47] Speaker 02:
All right.

[00:14:47] Speaker 02:
If there are no further questions, we'll hear for counsel for the Capitol police and we'll give you a couple of minutes on rebuttal.

[00:14:54] Speaker 02:
Ms.

[00:14:54] Speaker 02:
Chambers.

[00:14:55] Speaker 02:
Thank you.

[00:14:59] Speaker 00:
Good morning.

[00:14:59] Speaker 00:
May it please the court.

[00:15:01] Speaker 00:
My name is Kelly Sendian.

[00:15:02] Speaker 00:
I represent the United States Capitol police.

[00:15:06] Speaker 00:
This case is about a management employee

[00:15:11] Speaker 00:
who believes that she had a unilateral right to disclose confidential information she obtained on behalf of the department to the media without prior authorization and in direct violation of the department's policies.

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As a result of her actions, she was disciplined.

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Judge Kelly reviewed this case below and determined that the First Amendment did not preclude the department's discipline in this matter.

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Judge Kelly also determined that appellant failed to produce any facts, any material facts showing a dispute as to whether the appellant was discriminated against,

[00:16:01] Speaker 00:
or retaliated against in violation of the Congressional Accountability Act.

[00:16:08] Speaker 00:
Now, Ms.

[00:16:09] Speaker 00:
Chambers has argued that this case only concerns two issues, whether the department's interest outweighs those of Ms.

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Breitermann's.

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and whether the comparators in this case were appropriately similarly situated for a jury to reach the question as to whether Ms.

[00:16:30] Speaker 00:
Brighterman was discriminated against.

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I submit that those are not the only issues in this case.

[00:16:39] Speaker 00:
As Judge Wilkins correctly pointed out, Garcetti

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In the case of Garcetti, the Supreme Court determined that where an individual speaks as an employee, as opposed to a citizen, the rights of the First Amendment do not apply to restrict an employer's actions as to that individual.

[00:17:05] Speaker 01:
And the reason for this is because what the First Amendment... Excuse me, counsel, isn't that a somewhat slight overstatement?

[00:17:14] Speaker 00:
I don't believe it is, Your Honor.

[00:17:16] Speaker 00:
And the reason why is because what the First Amendment does is it allows an employee, irrespective of their status as a government employee, to speak on matters on which they would be allowed to speak on anyway as a citizen of this country.

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And so when you have an employee who instead is reporting about issues

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related to, and I shouldn't say related to, but specifically reporting on issues as a part of their job, the department gets to determine how that is done.

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The department gets to determine who it's done for.

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The department gets to determine whether that information is provided and in what form.

[00:18:04] Speaker 00:
And here you had an employee who was responsible for investigating a matter, in this case, an unsecured weapon in a bathroom at the Capitol.

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That employee went to the scene as part of her job.

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She documented the scene.

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She took notes on the scene and she took a picture.

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And then she provided that information to a media outlet without any consultation with the department.

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despite a specific restriction that requires officers to run such media inquiries through the department's public information office.

[00:18:48] Speaker 04:
Ms.

[00:18:48] Speaker 04:
Sinead, doesn't the public have some interest in knowing about, you know, potential problems with safety in the Capitol Police?

[00:18:59] Speaker 04:
I mean, can we can we should we think about that as a matter of public interest.

[00:19:04] Speaker 04:
And, you know, on which Miss Breiterman was was trying to get information out to the public.

[00:19:13] Speaker 00:
The public interest, the interest of the public or the interest of Ms.

[00:19:18] Speaker 00:
Breiterman in disclosing the information doesn't become an issue unless we determine that she's speaking on a matter of public concern.

[00:19:27] Speaker 00:
So while the public may have an interest in public safety concerns, such as an unsecured weapon in the Capitol, that doesn't become a factor

[00:19:39] Speaker 00:
unless we first determine that the information that Miss Breiterman was communicating to the media specifically concerned a matter that she would speak to anyway as a citizen rather than.

[00:19:55] Speaker 01:
Let me ask a question, counsel.

[00:19:56] Speaker 01:
Suppose instead of providing the picture to the press, Miss Breiterman had volunteered to testify before Congress

[00:20:09] Speaker 01:
because the incident had been disclosed in another way.

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And she had volunteered to testify before Congress because she thought it was a systemic problem.

[00:20:24] Speaker 01:
Would she be demoted?

[00:20:25] Speaker 01:
Would she be subject to discipline?

[00:20:30] Speaker 00:
I think the example that you've come up with, Your Honor, concerning a congressional hearing in which she's required to testify or volunteers to testify.

[00:20:41] Speaker 00:
She volunteered.

[00:20:45] Speaker 01:
She volunteered to send a letter to Congress saying this is a dreadful situation that a gun was allowed to be left in a bathroom in a situation where the Speaker of the House and other

[00:21:00] Speaker 01:
senior members could have been threatened.

[00:21:03] Speaker 01:
And I volunteer to testify before Congress.

[00:21:09] Speaker 01:
Wasn't your position so extreme that you could punish her for that?

[00:21:18] Speaker 00:
Potentially yes, Your Honor.

[00:21:19] Speaker 00:
And the reason why is because of the first part of what she said, which is she sends a letter to Congress disclosing information regarding her job responsibilities and what she found as part of an investigation into a matter the department asked her to investigate.

[00:21:38] Speaker 00:
She does not have the authority to disclose that information.

[00:21:42] Speaker 00:
the department determines who that information goes to.

[00:21:46] Speaker 00:
So even if it were a congressional hearing on the topic matter, and she volunteered this information to members, going over the heads of the department, it would still be a problem for the very reasons that I identified.

[00:22:04] Speaker 00:
The department gets to control what information, how information it gathers

[00:22:09] Speaker 00:
through its employees is used.

[00:22:12] Speaker 01:
Excuse me.

[00:22:16] Speaker 02:
I didn't want to interrupt you, Judge Silverman.

[00:22:18] Speaker 01:
If I could just take another step.

[00:22:22] Speaker 01:
Suppose she had reported that up through the chain of command and she was told, we don't think it's of significance.

[00:22:35] Speaker 01:
So he left the gun in the toilet on the top of the toilet.

[00:22:39] Speaker 01:
So what we think is of no consequence whatsoever.

[00:22:44] Speaker 01:
Is she then still forbidden from going to the public or Congress.

[00:22:51] Speaker 00:
Well, to be clear, what she's forbidden from doing here is revealing evidence and information she gathered as part of an investigation that she was directed to gather.

[00:23:05] Speaker 00:
That's what she's what she is prevented from doing under the Garcetti test.

[00:23:10] Speaker 00:
And so I would argue if that is what she intends to do with Congress, if she intends to take evidence from an investigation and provide it to personnel outside of the department without authorization, if she intends to take the facts she gathers and testify as to that without authorization, then yes, Garcetti applies.

[00:23:31] Speaker 04:
So Ms.

[00:23:32] Speaker 04:
Sinian, it seems that your argument

[00:23:35] Speaker 04:
ultimately must rely very heavily on the fact that she cannot speak as a citizen on any matter that is part of her job.

[00:23:45] Speaker 04:
So even if she follows the procedures and she reports them, she can never speak about this matter to the press or to Congress because she gathered this information in her official capacity.

[00:23:59] Speaker 04:
Is that your position?

[00:24:00] Speaker 00:
So to be clear, I want to make sure that we're not we're not being overly broad here.

[00:24:07] Speaker 00:
So what I'm saying is it's not any matter related to her job because there is case law that suggests that you can speak to issues related to your job.

[00:24:17] Speaker 00:
What I'm suggesting is in this instance, she developed a work product for the department.

[00:24:23] Speaker 00:
She went out, she gathered information, she investigated, she created a work product in the form of a photograph, and she took that information and that work product and released it when she did not have authorization to do it.

[00:24:36] Speaker 00:
That is the problem in this case.

[00:24:39] Speaker 00:
Now, if she were to in some other way speak about concerns she had about public safety issues that didn't concern the factual matter that she gathered on behalf of the department, there may be some reason to believe that that speech would be speech of a citizen.

[00:24:59] Speaker 00:
But here, there is no evidence that what she was speaking about had to do with the same speech rights that would be available to any citizen by virtue of them being a citizen.

[00:25:14] Speaker 00:
What she was speaking to specifically had to do with the documents and work products she gathered on behalf of the department while investigating a matter.

[00:25:24] Speaker 00:
And that's where she ran into specific issues because we have a policy that prevents her from doing exactly what she did.

[00:25:34] Speaker 00:
And I want to be clear as to why this policy exists.

[00:25:38] Speaker 00:
The department does hundreds of investigations.

[00:25:41] Speaker 00:
hundreds.

[00:25:42] Speaker 00:
And we cannot have a situation in which employees are determining because they feel there may be a concern.

[00:25:50] Speaker 00:
And they only have a small view of the picture that the department itself has.

[00:25:55] Speaker 00:
They have a very narrow view as to what is happening in the department.

[00:26:00] Speaker 00:
And so making a decision ad hoc that they are able to disclose whatever they choose to disclose because it may be of interest to the public

[00:26:09] Speaker 00:
is detrimental to the mission of this organization.

[00:26:13] Speaker 02:
Let's suppose there's an officer whose duty was to respond on January the 6th and responded.

[00:26:24] Speaker 02:
And that officer, she has concerns based on what she saw on January 6th as far as security failures, et cetera.

[00:26:36] Speaker 02:
And she takes those to the press.

[00:26:39] Speaker 02:
Are you saying that officer is or is not speaking as a private citizen?

[00:26:48] Speaker 00:
So that's a great example, Your Honor, because that's exactly what has happened after January 6th.

[00:26:54] Speaker 00:
We've had a number of officers speak to the press about their experiences on that day.

[00:27:01] Speaker 00:
And those communications are protected because what they're speaking about is not a work product they created on behalf of the department.

[00:27:12] Speaker 00:
What they're speaking about is an experience that they had on that day that was very public.

[00:27:18] Speaker 00:
That's what they're speaking about.

[00:27:20] Speaker 00:
What they're speaking about is their opinions as to the department's successes.

[00:27:25] Speaker 00:
and or failures.

[00:27:27] Speaker 00:
That's what they're speaking about.

[00:27:29] Speaker 00:
They're not describing specific information or releasing work product that they created on behalf of the department.

[00:27:41] Speaker 00:
That they have not been permitted to do.

[00:27:43] Speaker 04:
Ms.

[00:27:43] Speaker 04:
Cindy, and how that is different though, because they were there in the Capitol in their official capacity and they were protecting the Capitol

[00:27:52] Speaker 04:
as part of their official capacity.

[00:27:54] Speaker 04:
So why is that an example in which they would be speaking as a citizen?

[00:28:02] Speaker 04:
Is it only because they didn't take a specific photograph or write a specific report?

[00:28:07] Speaker 04:
I mean, I'm not sure that the distinction about whether one is speaking as a citizen or as an employee can really turn on that distinction.

[00:28:16] Speaker 00:
Right, and I don't think it turns on solely the distinction as to whether they were in their official capacity as it concerns whatever it is they're speaking to.

[00:28:27] Speaker 00:
I think what it turns on is the idea that when the department commissions work, when it requests an employee to perform a particular task,

[00:28:40] Speaker 00:
that that employee does not get to choose how that task is done.

[00:28:45] Speaker 00:
The department gets to choose that.

[00:28:47] Speaker 00:
Who that task is done for, the department gets to choose that.

[00:28:51] Speaker 01:
Excuse me, counsel, just a second.

[00:28:53] Speaker 01:
If Ms.

[00:28:53] Speaker 01:
Brightman had not been involved in this investigation at all, she didn't find the gun.

[00:29:03] Speaker 01:
But let's suppose she got a copy of the picture or

[00:29:10] Speaker 01:
She didn't get a copy of the picture.

[00:29:12] Speaker 01:
She went to the roll call to tell the story because she thought it was injurious to the public and to the congressman they're charged with protecting.

[00:29:26] Speaker 01:
But it was not part of her job.

[00:29:27] Speaker 01:
It was not part of her investigation.

[00:29:30] Speaker 01:
Is your position different then?

[00:29:34] Speaker 00:
I think, Your Honor, it would depend on highly individualized facts, but I think we're closer to the point as to where she would be speaking as a citizen.

[00:29:45] Speaker 00:
And I say that because if you look at the information she disclosed here,

[00:29:50] Speaker 00:
It literally was, I reported to the scene at X time.

[00:29:54] Speaker 00:
The scene was X location.

[00:29:57] Speaker 00:
This is what we saw at X location.

[00:30:00] Speaker 00:
Here is the evidence.

[00:30:02] Speaker 00:
In other words, she was providing the very information that the department requested her to provide.

[00:30:09] Speaker 00:
And that would typically be provided as part of a criminal report.

[00:30:13] Speaker 01:
My hypothetical is she's not involved in the investigation at all, but she learns about it.

[00:30:20] Speaker 01:
And she goes to the press with it.

[00:30:22] Speaker 00:
I understand.

[00:30:23] Speaker 00:
And so what I'm distinguishing is in that situation, she would not have had the type of information that she provided here.

[00:30:32] Speaker 01:
Well, she got it.

[00:30:33] Speaker 01:
Let's assume she got it from somewhere, somehow.

[00:30:37] Speaker 01:
And she disclosed that to the press.

[00:30:38] Speaker 01:
Now, what's your position on that?

[00:30:40] Speaker 00:
My position would be that she's still disclosing information the department commissioned from an officer.

[00:30:46] Speaker 00:
So the fact that she received it from the officer who was actually investigating and chooses to disclose it, she's still speaking as an employee.

[00:30:56] Speaker 00:
If she's simply speaking about her concerns about public safety, and let's assume that she had a concern about the way the department handles these cases and that she felt that they were inadequate in the way that the department handles these cases, and she provided an opinion as to that subject matter, we would not have the issue that we have under Gatchetti.

[00:31:18] Speaker 00:
We have the issue because she specifically released information that was a work product.

[00:31:25] Speaker 04:
Ms.

[00:31:25] Speaker 04:
Cindy, isn't your argument strongest on the second prong here about balancing the employer's interest versus the employee's interest?

[00:31:35] Speaker 04:
I mean, this question about whether she's speaking as a citizen seems to be a much more difficult question than perhaps the balancing at the second prong.

[00:31:46] Speaker 00:
I do think that our interest as the department far and vastly outweigh officer Breitermann's interest in speaking on this topic matter.

[00:31:58] Speaker 00:
And I want to go back to what Judge Silberman noted earlier.

[00:32:02] Speaker 00:
The department's concern, which was articulated throughout its documentation in this case, was that Brighterman was a supervisor.

[00:32:11] Speaker 00:
She was a management employee, and as such, she's entrusted with information regarding personnel issues, regarding various department plans and procedures, regarding our strategies, and

[00:32:23] Speaker 00:
Given that she took it upon herself to disclose this information to the media, that really undermines the department's utility for her.

[00:32:33] Speaker 00:
And I mean that in saying that in terms of other subordinate employees, Officer Breiterman, well, when she was a sergeant, would have or could have been responsible for investigating discipline as it concerned other employees.

[00:32:48] Speaker 00:
And so when you have part of the process investigating these disciplinary matters is that it is confidential.

[00:32:57] Speaker 00:
And the reason why is because we need to encourage employees to bring forth information.

[00:33:01] Speaker 00:
We need to encourage them to be truthful.

[00:33:04] Speaker 01:
So if I understand your position now on my hypothetical that an employee has gained information, not through her investigation, but because someone told her about it,

[00:33:18] Speaker 01:
someone and she went to the press, you would still say that was violating your confidentiality rules and you would still be entitled to discipline her because she would not be talking as a member of the public.

[00:33:37] Speaker 01:
Is that your position?

[00:33:39] Speaker 00:
My position is a little bit more nuanced than that, in that when it comes to these issues of First Amendment, it's about the form content and context.

[00:33:49] Speaker 00:
So it really depends on the information that she discloses.

[00:33:53] Speaker 00:
If it were the same type of information she discloses in this case,

[00:33:57] Speaker 00:
The fact that she didn't acquire it through herself going to the scene, I don't think is relevant.

[00:34:03] Speaker 00:
The fact is the department acquired it in that manner and through that means.

[00:34:09] Speaker 00:
And just because she came, she was able to get a hold of the information does not somehow entitle her to disclose it.

[00:34:17] Speaker 00:
If she's strictly speaking from a policy sort of, I disagree with this,

[00:34:21] Speaker 00:
or this is an issue for me, or something to that effect.

[00:34:25] Speaker 00:
I think we're outside of the Garcetti.

[00:34:27] Speaker 01:
Now you're relying, as my colleague Judge Rao put it, now you're relying on the balancing test rather than the investigation question, aren't you?

[00:34:39] Speaker 01:
I don't think so, Your Honor, because... That wasn't a negative question.

[00:34:44] Speaker 01:
I think I was just picking up on what Judge Rao was pointing.

[00:34:49] Speaker 01:
I am correct, Judge Rao, aren't I?

[00:34:52] Speaker 01:
I was reading your mind.

[00:34:53] Speaker 00:
Yes.

[00:34:57] Speaker 00:
I will say I don't think that for purposes of determining whether someone is speaking as a citizen or as an employee, it's not a matter of the balancing.

[00:35:06] Speaker 00:
It is a matter of determining what it is they're speaking about, the content, the form, and the context.

[00:35:12] Speaker 00:
And so to the extent that she's still providing information that was related, not related, concerned this investigation, that were the details of this investigation to be more specific,

[00:35:27] Speaker 00:
she's still within the Garcetti realm.

[00:35:30] Speaker 00:
Whereas if she's speaking from sort of an opinion, a place of opinion such as the officer, the detective in the Hawkins matter, that's a different, that is a different, inherently different type of speech that's seen as requiring

[00:35:49] Speaker 00:
and necessitating the highest level of protection.

[00:35:52] Speaker 00:
That's not what this was.

[00:35:55] Speaker 00:
This was disclosing direct information she obtained from an investigation.

[00:36:01] Speaker 00:
That's what she did here.

[00:36:03] Speaker 00:
And for that reason, she falls under Garcetti.

[00:36:09] Speaker 00:
I do see that I'm well past my time.

[00:36:13] Speaker 00:
So I will, unless there are further questions, I will stop here.

[00:36:18] Speaker 02:
All right.

[00:36:18] Speaker 02:
Any further questions from the panel?

[00:36:21] Speaker 02:
All right.

[00:36:22] Speaker 02:
Thank you.

[00:36:23] Speaker 02:
We'll give Ms.

[00:36:26] Speaker 02:
Chambers two minutes and rebuttal.

[00:36:28] Speaker 02:
Thank you, counsel.

[00:36:30] Speaker 03:
Thank you.

[00:36:32] Speaker 03:
So Ms.

[00:36:33] Speaker 03:
Cindy and talked about the form content and context of the information being disclosed.

[00:36:40] Speaker 03:
The gun was left in a public bathroom.

[00:36:44] Speaker 03:
At the capital visitor center, therefore, it was not an area that only capital police officers could access or would have.

[00:36:53] Speaker 03:
would have access to.

[00:36:55] Speaker 03:
Breitermann was one of several officers who reported to the scene, and she took her own picture of the gun, as did several other officers.

[00:37:02] Speaker 03:
After that, Breitermann heard nothing about an investigation.

[00:37:05] Speaker 03:
She wasn't interviewed.

[00:37:07] Speaker 03:
So to say that she was part of an investigation or received the information from the Capitol Police or that this information was confidential, that's simply not in the record.

[00:37:18] Speaker 01:
Also- Do you happen to have any knowledge as to why

[00:37:22] Speaker 01:
an officer left a gun on top of a toilet, a loaded gun on top of a toilet?

[00:37:28] Speaker 03:
I don't know, Your Honor, but it does seem like there was several guns that have been left that we pointed out in the record in parking lots, in a gun in the speaker's house found by a child.

[00:37:43] Speaker 03:
So this happens.

[00:37:46] Speaker 03:
And I'd also like to point out, Ms.

[00:37:48] Speaker 03:
Cindy pointed out that Ms.

[00:37:50] Speaker 03:
Breiterman is a supervisor there.

[00:37:51] Speaker 03:
She's held to a different standard, but I would like to point you to the record at the appendix 2031, which is the comparator of the male commander who sent sexual text messages to the female subordinate.

[00:38:08] Speaker 03:
And Capitol police said that the male's actions, quote, violated the department's trust and damaged its credibility.

[00:38:16] Speaker 03:
but he got a 20 day suspension.

[00:38:17] Speaker 03:
And then just very quickly, there's another comparator who was an officer, but he took a photo of an active crime scene, posted it on Facebook.

[00:38:27] Speaker 03:
There was a criminal investigation.

[00:38:28] Speaker 03:
It was a fatal car crash and he only got written warnings and there was no discussion about his rank or title.

[00:38:36] Speaker 03:
Thank you.

[00:38:36] Speaker 02:
Thank you.

[00:38:38] Speaker 02:
We'll take the matter under advisement.