with whom Judge SEYMOUR joins, dissenting:
With respect, I must dissent from the en banc court’s analysis of what is a matter of public concern and its application of the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In my opinion, the en banc court takes an unprecedented step by constricting the First Amendment protection of public employees who must investigate and report on controversial matters. The court also unjustifiedly supplants the jury’s verdict with its own view of the evidence, in order to conclude under the Pickering test that the City of Hutchinson’s interest in regulating Thomas Koch’s speech clearly outweighs Koch’s interest in stating his conclusion.
To focus properly, we must identify the precise issues presented to this court for review. The jury resolved all of the factual issues against the City of Hutchinson. The City neither complains of the jury instructions or verdict form nor argues that the evidence was insufficient to support the jury’s verdict. The district court based its grant of judgment n.o.v. on the sole ground that Koch’s “speech involved in this case cannot fairly be characterized as relating to a matter of ‘public concern’ and therefore the speech is not protected under the First and Fourteenth Amendments.” I R. 365. The order granting en banc rehearing was limited to the issues discussed in the “protected speech” section of the panel majority’s opinion and the dissent, which focused on Koch’s report as a “statement of his conclusions as a public employee limited to a matter within his official duties.” See Koch v. City of Hutchinson, 814 F.2d 1489, 1500 (10th Cir.1987) (Seth, J., dissenting).
In addressing this issue, the City sets forth three alternative arguments. First, the City advocates a per se rule that a public employee’s statements made in the ordinary course of business can never be protected speech. Second, it argues that the speech here cannot be regarded as a matter of public concern. Finally, it asserts that even if Koch’s statement is *1454found to touch on a matter of public concern, that finding does not justify the broader conclusion that it is protected speech as defined in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
With respect to the City’s first argument, I agree with the majority that there should be no per se rule denying First Amendment protection to speech uttered in the ordinary course of a public employee’s business duties. Where I really part company with the majority is on the second issue — whether this speech touches on a “matter of public concern.” The majority correctly states the law in the context in which this issue usually arises: where the question is whether the speech that caused an employee’s discharge was mere griping or agitation over working conditions or internal policy decisions affecting the employee, as opposed to political commentary on an issue of public concern. That is, did the employee speak as employee or as citizen? Sometimes the lines are hard to draw, but I generally agree with the balance the courts have struck when the issue is presented in this context.
Here, in contrast, we face a different situation: Koch is speaking “as an employee,” and, although his speech is not pure political commentary, it also is not upon matters only of personal interest. Koch’s report did not express a complaint about working conditions or internal policy. Instead, it stated that he believed a fire which claimed the life of a child had been deliberately set. Surely the majority would agree that the cause of a fatal accident at a nuclear power plant would be a matter of grave public concern, on a regional and perhaps national scale. The cause of a fire in which someone dies, particularly if that cause might be arson, stimulates grave concern on a local level. And when, as in this case, law enforcement officials disagree about how such a fire started, the public should know about this disagreement, if for no other reason than to assess the conduct of government officials. See Connick, 461 U.S. at 148, 103 S.Ct. at 1691; id. at 161, 103 S.Ct. at 1697 (Brennan, J., dissenting) (“Unconstrained discussion concerning the manner in which the government performs its duties is an essential element of the public discourse necessary to informed self-government”).1
The majority applies the “content, form and context” analysis of Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690, concluding: “absent a more compelling circumstance than the simple fact that Koch’s report was a routine governmental report, ... Koch’s expressed opinion in his report does not address a matter of public concern.” At 1447. The majority views the context and form of Koch’s speech — a “routine governmental report” — as weighing strongly against a finding of “public concern.” I believe the majority misapprehends the basis of the content, form and context analysis required by Connick. In Connick, the context of the speech — a disgruntled employee challenging office policies — counseled strongly against finding her speech to address a matter of public concern. See 461 U.S. at 148, 103 S.Ct. at 1691. In that context, her speech had little or no value in informing public debate. Had the employee’s questionnaire not been motivated by purely private concerns and had she sought “to inform the public that the District Attorney’s Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases ... [or] to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others,” id., her speech, though concerning only intra-office policies, might have been quite helpful to the public in evaluating the performance of a public institution. Thus, in a different context, her speech might have merited First Amendment protection.
The context of Koch’s speech — an official report prepared pursuant to duty — is quite different from the context of the speech in Connick. That Koch has spoken in his position as fire marshal rather than as a *1455“citizen” does not make his speech of less value to “informed decision-making by the electorate.” Pickering, 391 U.S. at 572, 88 S.Ct. at 1736; Connick, 461 U.S. at 145, 103 S.Ct. at 1689. If anything, his duties and qualifications make this official speech more valuable. That Koch announced his conclusion in the form of an official report rather than in a press conference also does not diminish the value of the speech nor vitiate its status as addressing a matter of public concern. As the Supreme Court has held, “Neither the [First] Amendment itself nor our decisions indicate that [the] freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.” Givhan v. Western Line Consolidated School District, 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979); see also Rankin v. McPherson, — U.S. —, 107 S.Ct. 2891, 2898 n. 11, 97 L.Ed.2d 315 (1987).2
The majority’s result places government employees whose duties require conclusions on issues of intense public concern in an untenable position. Will a district attorney dare seek an indictment in a case of corruption of a popular official? Could a staff member of the Warren Commission conclude President Kennedy was shot for arranging an attempted Mafia assassination of Fidel Castro when the duty is to determine why Kennedy was assassinated? Will the county coroner report that a jail prisoner died of beatings rather than suicide? The majority’s narrow construction of “public concern” leaves a host of public servants, including fire marshals, police, and coroners, under pressure not to report unpopular conclusions. This result is directly at odds with the Supreme Court’s rationale for protecting speech in the public workplace. As the Court held in Rankin: “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse ... simply because superiors disagree with the content of employees’ speech.” at —, 107 S.Ct. at 2896.
My conclusion that a report of arson is a matter of public concern is fully consonant with the post-Connick case law cited by the majority. See cases cited in majority opinion at 1445-46. In fact, a reader would anticipate from the manner in which the majority opinion describes the precedents that it is building up to a finding of public concern, rather than its opposite. For example, Piver v. Pender County Board of Education, 835 F.2d 1076 (4th Cir.1987), cited by the majority, at 1445, focuses “upon whether the ‘public’ or the ‘community’ is likely to be truly concerned with or interested in the particular expression, or whether it is more properly viewed as essentially a ‘private’ matter between employer and employee.” Id. at 1079-80 (quoting Berger v. Battaglia, 779 F.2d 992, 998-99 (4th Cir.1985) (citations omitted)). The cause of a fatal fire is not just a private matter between employee and employer; rather, it is of true concern to the citizenry and thus, under Piver, a matter of public concern. Koch’s speech would qualify similarly as being on a matter of public concern under the other cases the majority paraphrases. See, e.g., at 1445, citing to Callaway v. Hafeman, 832 F.2d 414, 416 (7th Cir.1987); Wren v. Spurlock, 798 F.2d 1313, 1317 & n. 1 (10th Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987); and Egger v. Phillips, 710 F.2d 292, 316-17 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). Reason, sound policy, and precedent all suggest that it is absurd to conclude that the statement, “It is my opinion this was an aggravated arson fire,” was not on a matter of public concern.
*1456On the en banc majority’s view that this case involves no speech of public concern, it need not have reached the Pickering balancing test. But finding the speech to be on a matter of public concern does not end the inquiry. We must take the next step and apply the Pickering test. As the majority opinion notes, that test requires the court “to balance the interests of the employee in making the statement at issue against the interests of the state, as an employer, in promoting the efficient provision of services.” At 1449; see Pickering, 391 U.S. at 568, 88 S.Ct. at 1734. The government bears the burden of demonstrating that its interests outweigh the interests of the speaker. Rankin, at —, 107 S.Ct. at 2898-99. If the government fails to carry this burden, the speech is protected.
The majority sets forth several reasons for tipping the Pickering balance in favor of the City of Hutchinson. First, the majority again weighs against Koch the fact that his speech was made in an official report. At 1450. But the majority provides no rationale for assigning the presumption against the employee; and as a general proposition the fact that the speech is contained in an official report should weigh in favor of the employee under Pickering. The government’s interests “in promoting the efficiency of the public services it performs through its employees,” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734 generally are advanced, not impaired, by protecting its decisionmakers’ exercise of discretion. Fire marshals who can be demoted or terminated merely for arriving at an unpopular conclusion will be less likely to perform the job correctly and efficiently. Failing to protect the fire marshals’ speech will chill the exercise of their discretion just as the threat of libel judgments would chill the news media’s discussion of public issues and events. As the Court emphasized in Pickering, “the threat of dismissal from public employment is ... a potent means of inhibiting speech.” 391 U.S. at 574, 88 S.Ct. at 1737.
The majority, however, ignores the governmental interests in protecting speech in official reports and looks only at the “disruptive” aspects of Koch’s statement. The relevant considerations on this aspect, as the majority declares, are whether the statement (1) impairs discipline or harmony on the job, (2) has a detrimental impact on necessarily close working relationships, or (3) impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. At 1449. This test requires courts to determine whether the particular speech in the particular context would be inherently or necessarily inflammatory and disruptive of the working relationships on the employee’s job.
In Pickering the Supreme Court asked whether the speech at issue could “be regarded as per se detrimental,” and asked whether it would “normally have any necessary impact” on the operations of the workplace. 391 U.S. at 571, 88 S.Ct. at 1736. The instant case illustrates the problem perfectly. Does the mere fact that a fire marshal concludes that a fire he investigated was arson necessarily impair discipline or harmony with those with whom the marshal works, or detrimentally affect working relationships, or impede the performance of the marshal’s duties? Of course not. This situation is unlike the one that would exist if Koch had encouraged citizens of Hutchinson to torch older buildings, or if an assistant prosecuting attorney commented favorably upon vigilantes taking the law in their own hands. Yet consider the effect Koch’s demotion is likely to have on the next person to hold his position. Will the new fire marshal want to reach a conclusion with which county attorney O’Sullivan will disagree? Will he defend his conclusion as vigorously as did Koch?
If speech is not per se disruptive, then the government must prove that the speech on matters of public concern actually created disruption in the workplace. See Rankin, at —, 107 S.Ct. at 2898-99; Pickering, 391 U.S. at 570-71, 88 S.Ct. at 1735-36. When the government introduces some evidence of disruption, the court’s role involves some weighing of the evidence. But the court must be careful not to go too far and determine issues that are properly for *1457the factfinder. See Pickering, 391 U.S. at 578 n. 2, 88 S.Ct. at 1740 n. 2 (“even in cases where the upholding or rejection of a constitutional claim turns on the resolution of factual questions, we also consistently give great, if not controlling, weight to the findings of the state courts”) (appendix to opinion of the Court).
After weighing the evidence for itself the majority holds that the City, based upon county attorney O’Sullivan’s recommendations, was entitled to evaluate the report as reflecting negatively upon Koch’s ability and competence to perform his job, partly because of his omission of the laboratory analysis suggesting a possible accidental cause of the fire. At 1450. It then says there is evidence that Koch’s report had a detrimental impact on the working relationships on the job and analyzes in detail the poor relationship between Koch and O’Sullivan, which it attributes to this report. At 1451-52. And finally, because Koch was not a purely clerical employee and had a policymaking and public contact role, the majority says that the City had a significant interest in regulating his speech. At 1452-53. Weighing these factors together, the majority holds that the City’s interest in regulating the speech clearly outweighed Koch’s interest in making the speech.
In my view the majority, under the guise of applying the Pickering balancing test, usurps the jury’s function of determining why Koch was demoted. The linchpin of the City’s argument is that Koch deliberately withheld evidence and that county attorney O’Sullivan and, later, Koch’s superiors in the city government, were therefore justified in losing confidence in him. From the majority’s recitation of the evidence on this issue, one would think that there was no dispute that Koch engaged in this deception. If the evidence were as one-sided as the majority states it, then the majority’s Pickering analysis might be correct. But this is not an open and shut case. Rather, the majority overlooks those parts of the record that support the jury’s verdict. For example, the majority does not mention that O’Sullivan took exception to Koch’s conclusions before O’Sullivan ever knew of the omitted laboratory report.3 Further, reading the majority opinion one has the idea that no evidence supported Koch’s conclusion that arson caused the fire, and that he reached this conclusion solely to induce O’Sullivan to bring arson charges against the child victim’s parents. But Koch’s report indicated that he based his arson conclusion on his assessment that the fire started at four different places in the house simultaneously. See IIR. Exhibit 1 at 3. The report also explained why Koch discounted all accidental or natural causes. Id. at 4.4 The majority makes much of the fact that Koch changed his mind from a preliminary view that the fire was accidental. The majority, however, ignores Koch’s explanation that his apparent change in position resulted from evidence arising during the investigation sufficient *1458to outweigh his initial presumption that the fire was accidental in origin.5 In light of this sharp conflict in the evidence, it is most inappropriate for the appellate court to substitute its own judgment of the evidence for that of a jury which observed the witnesses directly.
Koch does not dispute that there was acrimony and divisiveness in the instant case. The questions here are why did it develop and why was Koch demoted? Was Koch demoted because his reasoning was faulty or dishonest, or because O’Sullivan did not want to hear the conclusion Koch was required by his job to make? In the face of the conflicting evidence in the record, this is a fact question that was properly submitted to the jury and then was decided against the City. In my opinion, we must construe the jury’s conclusion as one that Koch was demoted because of his expression of belief as to the cause of the fire.6
This appellate court has reweighed the evidence and found that the motivating factor in the detrimental employment decision was not Koch’s speech. Whether there was substantial evidence to support the verdict is not an issue before us, either in the original panel decision or in the en banc rehearing. I think the speech was clearly on a matter of public concern, and Koch could not be demoted just because he stated his conclusion in a report required of him as employee. The issue before the jury was whether Koch was fired for his conclusion or for some other reason. We have no authority to overturn the jury’s determination on that issue. Therefore, I dissent.
. Of course, a holding that speech addresses a matter of public concern only qualifies the speech for First Amendment protection; it does not guarantee that the speech will be protected. See Pickering, 391 U.S. at 568, 88 S.Ct. at 1734.
. The panel opinion mentioned that the fire marshal’s reports are public information, Koch, 814 F.2d at 1498, merely to underscore that it was certain that Koch’s report identifying a fire as caused by aggravated arson was going to become public knowledge. We do not have to go so far as to analyze the right to search public records, because Reno County Attorney Joe O’Sullivan recognized it as a public concern matter when he gave the story to the newspaper reporter. Indeed, O’Sullivan’s testimony at trial was that Koch accused him of a coverup in the arson investigation by not releasing Koch’s report to the newspapers, and that Koch thought the law required public release within fifteen days. See XVI R. 1576, 1742.
. Several days before submitting his written report to O’Sullivan, Koch met with O’Sullivan and told him that the fire appeared to be caused by arson. Koch testified that O’Sullivan immediately became “defensive” and emphasized to Koch that arson was difficult to prove. XV R. 1279-80. O'Sullivan admitted that he refused to see Koch or return Koch's calls after reading Koch’s report because “I wasn’t at all comfortable with [Koch’s] decision and I wanted to see the reports of the other fire investigators before I talked to him.” XVI R. 1614.
. At the trial Koch testified in detail about the factors that led him to conclude the fire was arson. See XIV R. 1171-91; XV R. 1195-1251. Koch said he did not mention the broken gas valve in his report because he had discounted it as a possible source of the fire for several reasons. First, the evidence led Koch to conclude that the gas valve was broken as a result of the fire and was not a cause of the fire. The residents of the house did not smell gas leaking as they would have had the gas valve been broken before the fire. XIV R. 1180. Second, there was no ignition source near the place where the gas valve was broken. Id. Koch did mention in his report that ”[g]as was indeed a fuel after the roof collapsed prior to being shut off by firefighters; line severed when roof fell," II R., Exhibit 1 at 4, but O'Sullivan maintained that Koch’s failure to include a laboratory report listing the gas valve as a potential fire source bordered on criminal conduct in falsely reporting a crime. XVI R. 1581-84.
. Koch testified that in investigating this fire he applied the general presumption for fire investigators going into a fire investigation — that "until proven otherwise, it’s an accidental fire.” XIV R. 1168; see also XV R. 1433 ("you don’t want to claim arson until you’re very sure. That is very detrimental to any investigation”). Also, Koch specifically denied falsifying the report or suppressing any evidence which conflicted with his conclusion that the fire was arson. XV R. 1324, 1342.
. I would have preferred a more detailed special verdict form than was given here. Ideally, the court should have asked specifically whether Koch was demoted because of the content of his speech in the report. Asking only whether the report was a substantial or motivating factor in the demotion somewhat blurs the line between whether it was Koch’s conclusion or how he arrived at the conclusion that made the difference. Nevertheless, the City did not object to the verdict form, and when considered together with the jury’s conclusion that Koch would not have been demoted absent the speech, I think we must accept the verdict as a finding that Koch was demoted because the City used his conclusion of arson as an excuse to demote him.