[00:00:00] Speaker 04:
Okay, let's get started with our first case, which is 25-1159 Holt versus Florissant Fire Protection District.

[00:00:09] Speaker 04:
Mr. Block.

[00:00:19] Speaker 01:
Good morning, Your Honors.

[00:00:20] Speaker 01:
It may please the court.

[00:00:21] Speaker 01:
My name is Grady Block of Mountain State's Legal Foundation, and I'm here to represent Mr. Eric Holt, who's here with us today.

[00:00:27] Speaker 01:
Respectfully, this is a little ambitious, but I'd like to try to reserve four minutes for rebuttal.

[00:00:32] Speaker 04:
I'll try to help you.

[00:00:34] Speaker 01:
Thank you, Your Honor.

[00:00:35] Speaker 01:
So we are here today because Mr. Holt was fired from his job as the Fire Chief of the Floresant Fire Protection District in retaliation for speaking out in the course of a criminal investigation regarding an election that happened with the board for the Fire Protection District.

[00:00:52] Speaker 01:
The entire board was replaced just as a little bit of background and there was quite a bit of drama that happened along with that transition.

[00:00:59] Speaker 01:
In the course of that investigation, Mr. Holt was approached by an investigator from the district attorney's office who asked him for footage and several questions about what was happening that day and what was shown in the footage.

[00:01:16] Speaker 01:
Mr. Holt was enthusiastic in responding to that request.

[00:01:20] Speaker 01:
He went on his way, went to a third party company called Upworks to go get the footage since they didn't actually manage the

[00:01:26] Speaker 01:
footage in-house.

[00:01:27] Speaker 01:
He was outsourced to a third party.

[00:01:29] Speaker 01:
He went and got that footage.

[00:01:30] Speaker 01:
He met with the investigator, Mr. Kramer, and answered a lot of questions, specifically identifying who was where, the distances between things, questions that matter for elections.

[00:01:42] Speaker 01:
Right?

[00:01:44] Speaker 01:
You know, there are certain regulations on how far people can be to the polls, things like that.

[00:01:47] Speaker 01:
So he's helping assist and answer those questions.

[00:01:50] Speaker 01:
He was helping provide detailed answers on what happened that day.

[00:01:54] Speaker 01:
Specifically, he actually received two complaints from citizens on the day of the election since he happened to be at the firehouse purely for an unrelated matter.

[00:02:02] Speaker 01:
He had nothing to do with the election, of course.

[00:02:04] Speaker 01:
He's a fire chief.

[00:02:05] Speaker 04:
Is it customary to have the fire station as a polling place for local elections?

[00:02:11] Speaker 01:
I'm not sure, Your Honor.

[00:02:12] Speaker 01:
I think it kind of makes sense.

[00:02:13] Speaker 01:
It's fitting for the fire protection district itself.

[00:02:16] Speaker 01:
But I'm not sure if that's customary, to be perfectly frank with you.

[00:02:20] Speaker 01:
What is important, though, is he happened to be there that day responding to something that is absolutely within the course of his job duties.

[00:02:26] Speaker 01:
He was there to respond to an incident, a medical incident specifically.

[00:02:30] Speaker 01:
That's what he says in his deposition.

[00:02:32] Speaker 01:
He had nothing to do with the election.

[00:02:33] Speaker 01:
The party or the district actually appointed a designated election official to oversee the elections.

[00:02:38] Speaker 01:
They had poll watchers.

[00:02:40] Speaker 01:
Full blown election, right?

[00:02:42] Speaker 01:
So the court below correctly applied the Garcetti Pickering framework to this case, but improperly decided.

[00:02:50] Speaker 05:
Let me ask you a factual question.

[00:02:52] Speaker 05:
In the inquiries that were made of him by the district attorney, were they logistical things about who was where near the polls and things like that?

[00:03:02] Speaker 01:
Some of it was your honor.

[00:03:03] Speaker 01:
So he did relay information, you know, who was where in the fire station and how far they would be to his knowledge, you know, because he's the best person to answer that.

[00:03:12] Speaker 01:
Frankly, part of it was logistical and distances, things like that.

[00:03:15] Speaker 01:
But part of it was also relaying the citizen complaints that he received on the day of the election.

[00:03:19] Speaker 01:
So it was twofold really, well, threefold.

[00:03:21] Speaker 01:
So one was providing the video itself.

[00:03:24] Speaker 01:
Second, he was answering those logistical questions.

[00:03:26] Speaker 01:
And then third, he was also relaying his own complaints that he had received from citizens.

[00:03:30] Speaker 01:
And the complaints were?

[00:03:32] Speaker 01:
that people were talking to voters within that threshold, you know, trying to get them to vote certain ways, things like that.

[00:03:38] Speaker 05:
Was the video not fully expletive of who was where in the voting area?

[00:03:47] Speaker 01:
I'm not sure, Your Honor.

[00:03:48] Speaker 01:
I haven't seen the video myself, to be perfectly honest with you.

[00:03:53] Speaker 01:
It was helpful, obviously, to have somebody there that's intimately familiar with the fire station that can tell you how far things were in specifically identifying who people were as well.

[00:04:03] Speaker 01:
So it was several different categories of facts that he was rolling into that.

[00:04:08] Speaker 04:
Is he ultimately responsible for managing the fire station?

[00:04:13] Speaker 01:
Yes.

[00:04:14] Speaker 04:
I assume that he or somebody on his staff let the election workers in in the morning

[00:04:20] Speaker 04:
Let them excuse them at night and locked up or cleaned up after them.

[00:04:25] Speaker 01:
Sure.

[00:04:25] Speaker 01:
So he is responsible for overseeing the fire station pretty much in its entirety.

[00:04:30] Speaker 01:
He's the only person that's a full-time employee there.

[00:04:32] Speaker 01:
He answers specifically to the board.

[00:04:34] Speaker 01:
But they don't actually manage the security system that had the footage.

[00:04:39] Speaker 01:
That was managed by a third-party vendor.

[00:04:41] Speaker 04:
Yeah.

[00:04:42] Speaker 04:
So you should move to whether what he did was within those official duties or not under Garcetti.

[00:04:50] Speaker 04:
you know, hear the, you know, your response to the, to the fluorescence argument on that.

[00:04:59] Speaker 01:
Absolutely, Your Honor.

[00:05:00] Speaker 01:
I would love to.

[00:05:00] Speaker 01:
So, in Lane v. Franks, one of the critical questions that the Supreme Court talked about there is we look at the ordinary job duties of what that employee is charged with and doing.

[00:05:11] Speaker 01:
As a firefighter, he's charged with responding to fire incidents, responding as an EMS, managing employees and volunteers, things like that.

[00:05:19] Speaker 01:
He has nothing to do with elections, investigations, criminal investigations, anything like that.

[00:05:26] Speaker 01:
And another case on that as well is Tufaro v. Oklahoma Board of Regents.

[00:05:30] Speaker 01:
That case was just cited by this court in the Timmons case just a couple months ago.

[00:05:35] Speaker 01:
In that case,

[00:05:37] Speaker 01:
The court said specifically we look at the type of activities they were paid to do.

[00:05:40] Speaker 01:
And again, as a firefighter, he has nothing to do with unless elections investigations.

[00:05:45] Speaker 03:
Managing the firehouse, absolutely, but... Can I ask also a factual question?

[00:05:51] Speaker 03:
Now, I understand that monitoring the video was outsourced, but

[00:06:01] Speaker 03:
But the chief also, he did utilize, as I understand it, the digital surveillance system in order to give access to new employees.

[00:06:12] Speaker 03:
And I really wasn't quite sure factually what that meant.

[00:06:16] Speaker 03:
So is it, I'll ask it this way, is it a fair inference that as the fire chief, he did have control over that surveillance system, albeit for a different purpose,

[00:06:29] Speaker 03:
but it's the same digital system that underlay the entire investigation.

[00:06:36] Speaker 01:
Sure, so as I understand it, the access system had a couple different components to it.

[00:06:40] Speaker 01:
For one, as I understand it, they used it partially as access to the building and had a function that essentially operated like a key.

[00:06:49] Speaker 01:
So part of the login information was for that as well.

[00:06:51] Speaker 01:
But yes, it did have the ability to access the cameras, but not necessarily the footage.

[00:06:56] Speaker 01:
So he wouldn't be able to pull up past footage, as I'm aware of it.

[00:07:01] Speaker 01:
You could access live footage, things like that, but he had to go actually to that third party to get previous footage.

[00:07:07] Speaker 01:
So you wouldn't really be able to get it in the same kind of way.

[00:07:12] Speaker 01:
But again, moving to the... A little more on the facts.

[00:07:16] Speaker 05:
Sure.

[00:07:17] Speaker 05:
The expression employees and staff have been used.

[00:07:21] Speaker 05:
What employees and staff were there

[00:07:24] Speaker 05:
besides Mr. Holt.

[00:07:26] Speaker 01:
So he was the only full-time employee.

[00:07:28] Speaker 01:
They did have a number of volunteers that worked there as well, and then I believe a couple part-time employees, one of which was also terminated by the board.

[00:07:36] Speaker 05:
Part-time on the payroll?

[00:07:40] Speaker 01:
Yes, Your Honor, I believe so, but not full-time.

[00:07:43] Speaker 05:
Is there anything in the record that indicates why he didn't dispatch the part-time employees to

[00:07:54] Speaker 05:
Get the video?

[00:07:55] Speaker 01:
No, Your Honor, I don't think so.

[00:07:56] Speaker 01:
I think it was mostly just because he was enthusiastic about helping out and making sure that government accountability was there and present.

[00:08:05] Speaker 01:
He wanted to make sure that his new board was operating with integrity, especially in light of what their job was to do.

[00:08:12] Speaker 05:
So in terms of that perspective he had, he was the only one

[00:08:18] Speaker 05:
who could get the video from the security company to give to the district attorney, correct?

[00:08:27] Speaker 01:
I think that's probably correct, Your Honor, but I think the district attorney could have also gone straight to the company as well.

[00:08:33] Speaker 01:
I don't think that would have been an issue.

[00:08:33] Speaker 05:
The district attorney is not an employee of the fire district, though, right?

[00:08:38] Speaker 05:
Sure, that's true.

[00:08:38] Speaker 05:
In the contract, I'm assuming the record indicates the contract was with the fire district.

[00:08:45] Speaker 01:
That's true, yeah.

[00:08:47] Speaker 01:
But again, another interesting part of this case is this is only the second time he had ever talked to a criminal investigator in the course of his multi-decade career.

[00:08:57] Speaker 01:
This is not something that comes up ever in his job duties, really.

[00:09:00] Speaker 01:
This is very, very unrelated to being a fire chief.

[00:09:05] Speaker 04:
So it's... If there had been a theft in the fire station, would it be part of his official duties to cooperate with an investigation into that?

[00:09:14] Speaker 01:
I think so, probably, Your Honor.

[00:09:17] Speaker 01:
The difference is there, it's still not necessarily part of his job duties as managing a fire station, and it certainly wouldn't be relevant for a first member retaliation context, because we still have the other four factors under Garcetti we would have to look at.

[00:09:30] Speaker 01:
So it could be in that case, but for this, I don't think so, because he was speaking out on a matter of public concern specifically for accountability for this potential wrongdoing.

[00:09:43] Speaker 01:
He wanted to make sure that that

[00:09:45] Speaker 01:
those of new officials were operating with integrity.

[00:09:47] Speaker 01:
So it's a little bit different than just a routine kind of something was stolen here, I'm in charge of the stuff here, I need to go report it.

[00:09:54] Speaker 01:
This is a totally separate matter from managing the firehouse.

[00:10:00] Speaker 01:
But again,

[00:10:01] Speaker 01:
Our court's history has said that repeatedly as well.

[00:10:04] Speaker 01:
You look at the type of activities he was paid to do, and this isn't something that he would be paid to do.

[00:10:08] Speaker 01:
He's paid to respond to fires and manage EMS, things like that.

[00:10:12] Speaker 01:
And the fact that he comes up only twice in the course of his long career as a firefighter talking to a criminal investigator, that's telling, I believe, Your Honor.

[00:10:21] Speaker 01:
And specifically, that first time he talked to an investigator, he was responding in the course of his duties that time.

[00:10:25] Speaker 01:
He responded as EMS to a shooting incident.

[00:10:28] Speaker 01:
and was relaying information about that, which that one absolutely would be part of his job duties.

[00:10:33] Speaker 01:
This is unrelated to his job duties.

[00:10:35] Speaker 01:
And because of that, it makes it private speech and not official duties speech.

[00:10:41] Speaker 05:
With that, I think... Refresh my memory on this, on the facts.

[00:10:48] Speaker 05:
Part of the new regime involved somebody named Schultz.

[00:10:51] Speaker 01:
Yes, Your Honor.

[00:10:52] Speaker 05:
That's correct.

[00:10:54] Speaker 05:
And there was something about him, Holt, being named in a party?

[00:11:02] Speaker 01:
Yes, Your Honor.

[00:11:02] Speaker 01:
So there was a separate complaint filed by one of the outborn board members, Starla Thompson, who filed her own separate complaint from this case.

[00:11:11] Speaker 01:
And in that response, she named him as a defendant, him being Schultz.

[00:11:14] Speaker 01:
And then Schultz, in his response to the complaint,

[00:11:17] Speaker 01:
said that Holt had improperly or illegally put in these camera systems and asked for the court in that case to press charges against him for that.

[00:11:26] Speaker 01:
So that's how he got brought into that case.

[00:11:28] Speaker 01:
But he was never a party in that case.

[00:11:30] Speaker 05:
And did he disclaim all involvement?

[00:11:33] Speaker 01:
He disclaimed that he wasn't part of the case, so he didn't really need to know about the case.

[00:11:39] Speaker 05:
How does all this

[00:11:41] Speaker 05:
play into the issues we have to resolve, if at all.

[00:11:45] Speaker 05:
Maybe it's irrelevant.

[00:11:46] Speaker 01:
Sure.

[00:11:46] Speaker 01:
And I think that's probably true, Your Honor.

[00:11:48] Speaker 01:
I think that comes into whether he was pretextually fired.

[00:11:52] Speaker 01:
I'm sure you're aware of the insurance law situation.

[00:11:54] Speaker 01:
Oh, OK.

[00:11:54] Speaker 01:
That's the other issue.

[00:11:56] Speaker 01:
Right.

[00:11:56] Speaker 01:
Yes, Your Honor.

[00:11:56] Speaker 01:
So I think that goes to Proms 4 and 5 of the Garcetti analysis.

[00:12:00] Speaker 01:
And the district court halted their analysis solely on Prom 1, which is whether it's within his official duties.

[00:12:07] Speaker 01:
And as a part of that, I don't think this court needs to reach those issues if you don't want to.

[00:12:11] Speaker 01:
Again, in the Timmons case, you all just said that the normal favorable course is to resolve what's directly on appeal and then just remand for the rest.

[00:12:21] Speaker 01:
And I think that would be perfectly appropriate here, especially where there's factual contentions on a motion for summary judgment posture.

[00:12:27] Speaker 01:
And with that, I am a little bit past where I tried to reserve, so I will save the rest of my time.

[00:12:30] Speaker 01:
Thank you.

[00:12:33] Speaker 04:
Sir, from Corson, Ms.

[00:12:34] Speaker 04:
Cook.

[00:12:38] Speaker 02:
Good morning, Your Honors.

[00:12:39] Speaker 02:
May it please the Court, I'm Sarah Cook on behalf of the Florissant Fire Protection District here to request that this Court affirm the District Court's grant of summary judgment.

[00:12:53] Speaker 02:
In this case, the District Court did hold that the first element of the Garcetti Pickering Analysis was dispositive and thus did not reach the other four prongs.

[00:13:06] Speaker 02:
You know, in Garcetti, the Supreme Court declined to articulate a formula for determining when a government employee speaks pursuant to his official duties.

[00:13:18] Speaker 02:
You know, it's a case-by-case analysis which the district court performed in this case based on the record before it.

[00:13:27] Speaker 02:
A speech can be pursuant to an employee's official duties

[00:13:33] Speaker 02:
even when it concerns an unusual aspect of an employee's job that is not part of his everyday functions.

[00:13:41] Speaker 03:
Can I ask you a hypothetical question?

[00:13:43] Speaker 03:
So I work in a government building with video surveillance.

[00:13:49] Speaker 03:
I have nothing to do with that video surveillance.

[00:13:53] Speaker 03:
If there was a comparable situation, let's say there was an election in my courthouse,

[00:14:00] Speaker 03:
And let's say a law enforcement officer asked me to get that footage of the video.

[00:14:10] Speaker 03:
Would that be within my job responsibilities since I work in a building with that video surveillance?

[00:14:18] Speaker 03:
And let's say hypothetically, I'm the only employee in that government building.

[00:14:24] Speaker 03:
Is that part of my job responsibilities because

[00:14:29] Speaker 03:
I work there.

[00:14:33] Speaker 02:
And in this hypothetical, I'm assuming you have access to the video footage.

[00:14:38] Speaker 03:
No, just like the chief doesn't.

[00:14:41] Speaker 02:
Well.

[00:14:42] Speaker 03:
According to the evidence that he's presented, viewing the evidence in the light most favorable to the non-movement.

[00:14:49] Speaker 02:
Sure.

[00:14:49] Speaker 02:
I mean, I think in this case, Chief Holt did have access to the video footage, but it was the stored footage.

[00:14:57] Speaker 03:
Okay, let's say, let's say, good point.

[00:15:01] Speaker 03:
So let's say they ask me, the law enforcement officer says, give me a thumb drive of that so that he or she can view that footage rather than coming into the, say, the marshal's private arena to look at, you know, past footage.

[00:15:21] Speaker 03:
Would that, now, would that be part of my job responsibilities?

[00:15:26] Speaker 02:
I think yes.

[00:15:27] Speaker 02:
As an officer of the court, you would be expected to comply with a law enforcement request.

[00:15:35] Speaker 02:
I think, you know, taking it a step farther, if you refused, I think that would also be okay.

[00:15:44] Speaker 03:
You know, I mean, I don't think... Well, how can both of those things be true?

[00:15:47] Speaker 03:
If I can refuse, then it's not part of my job responsibilities.

[00:15:51] Speaker 03:
It may be something that I as a good citizen should do, but how can you say both

[00:15:57] Speaker 03:
that it's part of my job responsibilities and that I have the opportunity, the right to refuse?

[00:16:04] Speaker 03:
Are those not mutually exclusive?

[00:16:07] Speaker 02:
I think the term job responsibilities is what is problematic in that hypothetical.

[00:16:17] Speaker 02:
So I would not say it was part of your job responsibilities, but if you did provide it,

[00:16:24] Speaker 02:
I would say it was pursuant to your role as a public employee.

[00:16:31] Speaker 02:
And I think that is what the cases have held.

[00:16:39] Speaker 03:
What about Timmons?

[00:16:40] Speaker 03:
Isn't Timmons directly inconsistent with that?

[00:16:45] Speaker 03:
Your Honor, I'm sorry.

[00:16:48] Speaker 02:
I'm not familiar with that case, actually.

[00:16:50] Speaker 02:
I didn't realize it was, I didn't see it cited in this case.

[00:16:55] Speaker 03:
Maybe you're thinking of it as Plotkin, Timothy, Timmons versus Plotkin.

[00:16:59] Speaker 03:
And if not, don't worry about it.

[00:17:02] Speaker 02:
Yeah, I'm sorry, I'm not familiar with that case.

[00:17:05] Speaker 02:
That's okay.

[00:17:07] Speaker 02:
You know, but in other cases like Green versus Board of County Commissioners, where the employee was a drug lab technician,

[00:17:19] Speaker 02:
for some sort of juvenile detention facility.

[00:17:26] Speaker 02:
And she was concerned that she was getting a lot of false positives.

[00:17:30] Speaker 02:
She took her concerns to her supervisors.

[00:17:32] Speaker 02:
They didn't seem to care.

[00:17:34] Speaker 02:
And so she took it upon herself to go outside and find a company to verify whether the drug tests were, in fact, accurate.

[00:17:45] Speaker 02:
And the court in that case held that

[00:17:50] Speaker 02:
that conduct, that speech was pursuant to her official duties, because it was generally consistent with the type of activities she was paid to do.

[00:18:00] Speaker 02:
And here, Chief Holt admits he was in charge of the fire station.

[00:18:06] Speaker 02:
He was the fire chief, chief executive officer of the Florissant Fire Protection District.

[00:18:16] Speaker 04:
And doesn't the fact that he

[00:18:19] Speaker 04:
did it in his spare time effectively.

[00:18:23] Speaker 04:
He used his own money to secure some of the footage.

[00:18:28] Speaker 04:
Doesn't that point towards more private conduct or private speech than part of his official duties?

[00:18:36] Speaker 04:
I mean, why would he do that if it was part of his job function?

[00:18:41] Speaker 02:
Sure.

[00:18:41] Speaker 02:
I think first, Your Honor, that

[00:18:43] Speaker 02:
Those facts are not part of the record.

[00:18:46] Speaker 02:
Those facts were just raised for the first time in Mr. Holt's appellate briefing.

[00:18:51] Speaker 02:
At least my review of the record did not contain those facts.

[00:18:57] Speaker 02:
But even if that was true, I mean, as fire chief, he was technically always on duty 24-7.

[00:19:05] Speaker 02:
This is a very small fire protection district.

[00:19:11] Speaker 02:
So even if maybe he wasn't technically scheduled for that day or whenever he went and got the video footage, I think that just doesn't matter for purposes of the analysis.

[00:19:28] Speaker 05:
So your position is that this business about him using his own resources was merely

[00:19:38] Speaker 05:
assertions in the pro se Brief briefing that was filed by Mr.. Hold and there is nowhere in the record that verifies those as Being supported by evidence that is correct.

[00:19:54] Speaker 02:
Thank you.

[00:19:55] Speaker 02:
Yes And that you know it this case it was the district court reviewing the record and making the decision on the basis of the record in front of her and

[00:20:06] Speaker 02:
And that is, you know, and based on the facts in the record is what led her to determine that this was part of Chief Holt's job as a public employee.

[00:20:23] Speaker 02:
And, you know, something else with regard to, you know, he got the footage.

[00:20:30] Speaker 02:
He never told the district attorney, I want to complain.

[00:20:35] Speaker 02:
about election fraud or election violations.

[00:20:40] Speaker 02:
That was never a part of, that's not a part of the record.

[00:20:44] Speaker 02:
When I took Mr. Holt's deposition, I asked him all about his conversation with the district attorney, and it was limited to the district attorney asking him how far away is this person from this person, maybe what is this person's name, and Chief Holt answering those types of questions.

[00:21:02] Speaker 05:
Is the deposition transcript in the record

[00:21:06] Speaker 05:
Part of it is, Your Honor, not the entire thing.

[00:21:09] Speaker 05:
If I were to get my hands on the entirety of the transcript, would it disclose that you asked him very general questions such as, what did you do?

[00:21:22] Speaker 05:
What did you do then?

[00:21:23] Speaker 05:
What did you do next?

[00:21:25] Speaker 05:
That type of inquiry?

[00:21:27] Speaker 02:
Well, with regard to his conversation with the district attorney.

[00:21:30] Speaker 05:
No, I'm directing it more about his use of his own resources in acquiring the video that never came up.

[00:21:43] Speaker 02:
I did not ask that question.

[00:21:45] Speaker 05:
Your questions opened in enough that it should have come up if it happened.

[00:21:52] Speaker 02:
I mean, my deposition practice is to always

[00:21:57] Speaker 02:
you know, seek out as much information as I can.

[00:22:01] Speaker 02:
With regard to how he obtained the video footage, I just remember that as being the district attorney called him, said, can you provide me with the footage?

[00:22:13] Speaker 02:
And he testified that he answered yes, because this is a law enforcement officer, so he's going to do what he says.

[00:22:20] Speaker 02:
And then he just went out and got the footage.

[00:22:23] Speaker 02:
Nowhere, I mean, he never said that he used his own money to

[00:22:27] Speaker 02:
maybe by the thumb drive.

[00:22:29] Speaker 02:
Yeah, that was never brought up in deposition.

[00:22:36] Speaker 04:
How would you distinguish Lane versus Frank, which is one of their primary cases?

[00:22:42] Speaker 02:
Yes, Your Honor.

[00:22:43] Speaker 02:
I mean, Lane versus Frank, Frank's was obviously a holding about sworn in court testimony.

[00:22:52] Speaker 02:
We don't have that.

[00:22:53] Speaker 02:
We really don't even have testimony here.

[00:22:56] Speaker 02:
We have him, Mr. Holt, answering questions about some video footage.

[00:23:04] Speaker 02:
And that's how I would distinguish Lane versus Franks, is that the holding was with regard to when a public employee provides in court sworn testimony.

[00:23:17] Speaker 04:
Do you think if he'd been subpoenaed in this case, his in court testimony would not be

[00:23:24] Speaker 04:
pursuant to his official duties?

[00:23:28] Speaker 02:
If he had been subpoenaed in the, like, say the district attorney brought election fraud charges against the board.

[00:23:36] Speaker 04:
Yeah, assume that.

[00:23:37] Speaker 02:
And his testimony was limited to, hey, this person, this is this person's name, this is how far away this person was from this person.

[00:23:46] Speaker 02:
I mean, I think according to, and then if some adverse employment action had been taken,

[00:23:54] Speaker 02:
Because he provided that in court testimony, yes, I think Lane versus Franks would be persuasive to say that his testimony was private citizen speech and protected by the First Amendment.

[00:24:15] Speaker 03:
Can I ask you a somewhat general question about the intersection between the summary judgment standard

[00:24:24] Speaker 03:
our case law that everyone agrees treats prong one of Garcetti Pickering as a question of law.

[00:24:31] Speaker 03:
To apply that question of law, do you agree that we do have to view not only the evidence but all the reasonable inferences from the summary judgment evidence in the light most favorable to chief hold?

[00:24:44] Speaker 02:
Yes, your honor.

[00:24:45] Speaker 03:
OK, that's all I wanted to ask.

[00:24:48] Speaker 02:
And I mean, even if the courts

[00:24:51] Speaker 02:
were to hold that the first element of the Garcetti Pickering Analysis went in favor of Mr. Holt, this court could still affirm summary judgment on a different basis, specifically that there is no evidence of retaliatory intent and that the district would have terminated Mr. Holt even in the absence of his

[00:25:20] Speaker 02:
interaction with the district attorney's investigator.

[00:25:23] Speaker 05:
And that reason was because he let the insurance lapse?

[00:25:31] Speaker 02:
Yes, Your Honor.

[00:25:33] Speaker 05:
Doesn't the record indicate that he had no authority to pay for the extension of the insurance?

[00:25:43] Speaker 05:
And then in fact, nobody had authority because the bank was not recognizing the new board's ability to sign checks.

[00:25:53] Speaker 02:
So with regard to to that issue, yes, Mr. Holt could not have just written a check for the twenty some thousand dollars for that was the insurance bill.

[00:26:04] Speaker 05:
But Mr. Then include in your answer.

[00:26:08] Speaker 05:
Why is that not good evidence of pretext?

[00:26:10] Speaker 05:
He got fired for something that he was supposed to do that he had no ability to do.

[00:26:16] Speaker 02:
Right.

[00:26:17] Speaker 02:
But the problem was as he as fire chief, he should have presented a check to the board for signature or and or he should have said, hey, this thing is due.

[00:26:28] Speaker 02:
We need to get this paid.

[00:26:29] Speaker 03:
What about the April 30th email that Ed

[00:26:32] Speaker 03:
in the subject line June 1st where he circulated the invoice from the insurance company to Mr. Del Toro, the new president of the board.

[00:26:43] Speaker 02:
Right, and I think that was actually a May 30th email from Mr. Holt.

[00:26:49] Speaker 03:
Okay, prior to the deadline.

[00:26:50] Speaker 02:
Sure, and they actually had a conversation also on May 30th, and the conversation was limited to getting Mr. Del Toro to sign

[00:27:02] Speaker 02:
the uninsured waiver.

[00:27:06] Speaker 02:
Never was the fact that the insurance invoice had not been paid brought up.

[00:27:14] Speaker 02:
The invoice had been issued, I believe, like first, maybe in April.

[00:27:21] Speaker 02:
And so Mr. Del Toro assumed it had been paid.

[00:27:27] Speaker 05:
The email that Judge Bacharach asked about, was that sent before the expiration of the insurance and the grace period?

[00:27:40] Speaker 02:
It was sent, I believe, May 30th in the insurance last June 1st.

[00:27:49] Speaker 02:
So apparently there was no grace period.

[00:27:51] Speaker 05:
The new board president was aware before the expiration that there was a

[00:27:57] Speaker 05:
need to pay the insurance?

[00:27:59] Speaker 02:
He was not.

[00:28:00] Speaker 02:
He was not aware.

[00:28:01] Speaker 02:
It was his reasonable assumption that it had already been paid as the invoice was.

[00:28:07] Speaker 05:
Isn't that a question of fact, whether that was a reasonable assumption?

[00:28:12] Speaker 02:
I mean, possibly that would be a question of fact, yes.

[00:28:18] Speaker 02:
But there were a lot of other parts to the investigation that led

[00:28:24] Speaker 05:
Board to a unanimous vote to terminate Mr.. Hold on that basis All right, I think your time's expired and have some rebuttal time left for Mr.. Block Mr.. Block let me ask you initially I know this is a little awkward for you because you didn't do any of the briefing it was all done by your client

[00:28:52] Speaker 05:
But we have a record problem here.

[00:28:55] Speaker 05:
What do you say to Ms.

[00:28:57] Speaker 05:
Cook's statement that there is nothing in the record regarding his use of his own resources to get the thumb drive?

[00:29:09] Speaker 01:
On my review of the record, I also did not see anything about him personally paying for it, to be honest.

[00:29:15] Speaker 05:
So there's nothing in the record?

[00:29:16] Speaker 01:
Not regarding him paying for it.

[00:29:18] Speaker 01:
There is evidence from his deposition that are in the cuts that were made for the summary judgment briefing that says that he had to go to the vendor to pick up the thumb drive with the footage on it.

[00:29:29] Speaker 01:
Well, he took the thumb drive, but he had to go get the footage himself.

[00:29:33] Speaker 01:
So that is in the record.

[00:29:34] Speaker 01:
But personally paying for it with his own funds, that is not in the record.

[00:29:37] Speaker 05:
What about the Ms.

[00:29:39] Speaker 05:
Cook's assertions about the statements he made to the district attorney?

[00:29:44] Speaker 01:
Sure.

[00:29:44] Speaker 01:
Is that in the record?

[00:29:46] Speaker 01:
Yes, Your Honor.

[00:29:46] Speaker 01:
There's evidence from his deposition that shows he was talking about what kinds of questions he was answering in that deposition that she took.

[00:29:54] Speaker 05:
So that isn't there.

[00:29:57] Speaker 05:
Ms.

[00:29:57] Speaker 05:
Cook properly stated the status of the record.

[00:30:01] Speaker 01:
Regarding the first point about him being out of his own pocket, that's accurately stated in volume two on page 80.

[00:30:09] Speaker 01:
Oh, sorry, that's the wrong site here.

[00:30:18] Speaker 01:
In his deposition on page 57 and 58, it specifically says he was relaying citizen complaints as well.

[00:30:24] Speaker 01:
So it was more than just the logistical questions.

[00:30:27] Speaker 01:
Who was where?

[00:30:28] Speaker 01:
Who is this?

[00:30:29] Speaker 01:
So that is in the deposition, Your Honor.

[00:30:31] Speaker 01:
But to Your Honor's questions, I think the amount of factual questions we have on appellate review leads a lot of credence to the idea that this was not a case subject for dismissal at a summary judgment stage.

[00:30:43] Speaker 05:
What factual questions are you talking about regarding the first issue, and that is whether he was acting as an employee or a private citizen?

[00:30:51] Speaker 05:
What are the factual questions?

[00:30:53] Speaker 01:
So there's not as many on that, Ron, Your Honor.

[00:30:55] Speaker 01:
Frankly, I was more talking about the remaining factors under Garcetti.

[00:30:59] Speaker 01:
So answer my question on that problem.

[00:31:01] Speaker 01:
Sure.

[00:31:02] Speaker 01:
So on that problem.

[00:31:04] Speaker 01:
Judge Wong did say he was acting in his official capacity on the day of the election and then seemingly uses that to say he was acting in his official capacity for the rest of it.

[00:31:12] Speaker 01:
But he was there that day specifically solely to respond to an incident.

[00:31:16] Speaker 01:
That's when he received the information.

[00:31:18] Speaker 01:
And Lane V. Frank specifically says merely acquiring the information in the course of your employment does not automatically render that speech into employee speech rather than the privacy.

[00:31:26] Speaker 05:
That's a question of law, not fact, right?

[00:31:28] Speaker 01:
Correct.

[00:31:31] Speaker 01:
But beyond that to judge back right your question about the judge asking for footage or providing footage that's an interesting that you break that up because there actually is a case that the appellees brought up specifically in their briefing the Aqualina case and they do a fantastic job describing what the district court did in that case but.

[00:31:48] Speaker 01:
On appeal, the Sixth Circuit actually reversed them and said a judge providing footage to the press, specifically in that case, actually was private speech, even though that footage happened in their courtroom.

[00:32:01] Speaker 01:
So to your question, that hypothetical has borderline been addressed by the Sixth Circuit, and they found that it was private speech, not public speech.

[00:32:11] Speaker 01:
To your point as well,

[00:32:13] Speaker 01:
Mr. Holt could have refused.

[00:32:15] Speaker 01:
There was nothing compelling him to provide this outside of wanting to make sure there was government accountability.

[00:32:20] Speaker 04:
With that... Your time's expired.

[00:32:23] Speaker 04:
Oh, I'm so sorry.

[00:32:24] Speaker 04:
Thank you very much.

[00:32:25] Speaker 04:
Thank you.

[00:32:26] Speaker 04:
Your excuse in the case will be submitted.