Dismissing Volunteer City Advisory Board Appointee for Alleged Antifa Links Doesn't Violate First Amendment

The same would apply for other speech or political association, because "political affiliation [was] an appropriate requirement for the effective performance of the public office involved."

From Lathus v. City of Huntington Beach, decided today by the Ninth Circuit (Judge Andrew Hurwitz, joined by Judge Paul Watford and District Judge Eric Vitaliano (E.D.N.Y.):

[T]he First Amendment [does not] protect[] a volunteer member of a municipal advisory board from dismissal by the city councilperson who appointed her and is authorized under a city ordinance to remove her. Because the advisory board member is the "public face" of the elected official who appointed her to the body, we hold that she "can be fired for purely political reasons."

While serving as a Huntington Beach City Councilperson, Kim Carr appointed Shayna Lathus to the city's Citizen Participation Advisory Board ("CPAB") after Lathus lost a 2018 election for a seat on the City Council. Each councilperson appoints one member to the seven-person CPAB and may remove that member without cause. The CPAB's mandate is to "provide citizen participation and coordination in the City's planning processes" related to a federal Department of Housing and Urban Development block grant program, with an emphasis on addressing issues faced by "low and moderate income households." It holds regular open meetings to "assess the needs of the community," "evaluate and prioritize projects," "obtain citizen input," and "provide specific recommendations" to the City Council.

After being appointed to the CPAB, Lathus was photographed at an immigrants' rights rally standing near individuals whom Carr believed to be "Antifa." Carr then instructed Lathus to write a "public statement on social media denouncing Antifa," and Lathus did so, believing that continuing in her "position on the … CPAB depended" on it. Carr deemed the statement insufficient and removed Lathus from the CPAB, stating that "[t]hose that do not immediately denounce hateful, violent groups do not share my values and will not be a part of my team." …

In attending the rally, Lathus plainly engaged in activity protected by the First Amendment. … But … the First Amendment rights of government officials are not absolute. It is settled, for example, that an appointed public official can be removed for engaging in otherwise protected First Amendment activity if "political affiliation is an appropriate requirement for the effective performance of the public office involved."

The Supreme Court so recognized in Elrod v. Burns (1976), in which the three-justice plurality held that employees in "policymaking positions" may be dismissed for engaging in activities protected by the First Amendment so that "policies which the electorate has sanctioned are effectively implemented." The Court later clarified that "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel (1980).

In reviewing dismissals under the Elrod–Branti framework, we have sometimes analyzed whether a position is "policymaking" or "confidential." But Branti makes plain that "a position may be appropriately considered political even though it is neither confidential nor policymaking in character." We must therefore determine whether "commonality of political purpose" with Carr is an appropriate requirement for Lathus's service on the CPAB…

The CPAB consists of seven members, each appointed by a separate councilperson, who can also remove that member without cause. Because each member of the CPAB, an entity that advises on matters of policy and solicits public feedback, is appointed and removable by a particular councilperson, board members speak to "the public and to other policymakers on behalf of the official" who appointed them, a factor that indicates "responsiveness to partisan politics and political leaders." In other words, because the public could readily infer that a CPAB member's actions and statements while serving in the role reflect the current views and goals of the appointing councilperson, Lathus was Carr's "public face" on the board, and the public was entitled to assume that she spoke on Carr's behalf.

Moreover, "the provision of housing to low and middle income city residents is a vital political issue," and the CPAB is designed to influence policy decisions by the Council on such programs. The CPAB is a conduit between the community and City Council; its directive is to "assess the needs of the community," "evaluate and prioritize projects," "obtain citizen input," and "provide specific recommendations" to the City Council. It conducts "regular monthly meetings" open to the public. Because a CPAB member is thus "an adviser [who] formulates plans for the implementation of broad goals," Elrod, a councilperson is entitled to an appointee who represents her political outlook and priorities.

This case thus presents a different situation than those in which we have held that retaliation against officeholders for their exercise of First Amendment rights is forbidden. For instance, we have found that First Amendment protections extend to those who "did not have authority to speak to the media without prior approval of higher-ranking officials," or did not "formulate or substantially influence plans to implement the broad goals" of the appointing authority. In contrast, Lathus's role on the CPAB required her to speak to the public and plan low-and middle-income housing and development. Cf. DiRuzza v. County of Tehama (9th Cir. 2000) ([deputy sheriffs]); Thomas v. Carpenter (9th Cir. 1989) ([sheriff's lieutenant]).

Given the statutory structure and duties of the CPAB, Lathus, like each of her fellow board members, was the "public face" of her appointor. Lathus could plainly "undermine [Carr's] credibility and goals," and therefore could be dismissed for lack of political compatibility. Cases from our sister Circuits reach the same conclusion. See, e.g., Garza v. Escobar (5th Cir. 2020) (affirming dismissal of the political retaliation claims of a Crime Victim Unit Coordinator because she "represented the DA's office to crime victims" and to "other members of the law enforcement community"); Hagan v. Quinn (7th Cir. 2017) (holding that appointed workers' compensation arbitrators can be dismissed as "the face of the administration"); Walsh v. Heilmann (7th Cir. 2006) (upholding dismissal of administrative hearing officer because he decided local vehicular, housing, and zoning matters on which "political careers may turn" and elected officials "may insist that the holders of the delegated power be reliable implementers" of their agendas); Hoard v. Sizemore (6th Cir. 1999) (holding that road foremen are "inherently political" because of "the central importance of road maintenance in a rural county" and because they "may be called upon to serve as the executive's liaison with the public as far as road conditions are concerned"); Flynn v. City of Boston (1st Cir. 1998) (noting "it is enough that the official be involved in policy, even if only as an adviser, implementer, or spokesperson"); Brown v. Trench (3d Cir. 1986) (finding no First Amendment violation because a dismissed county employee's "principal duty was to act as spokesman for the Commissioners and help promote county projects").

{We need not separately balance Lathus's interests "in commenting upon matters of public concern" against the City's interest "in promoting the efficiency of the public services it performs through its employees," Pickering v. Bd. of Educ. (1968), because "where the Branti exception applies the employee can be fired for purely political reasons without any Pickering balancing."}

Our analysis of Lathus's retaliation claim also dictates the outcome of her compelled speech claim…. Lathus's complaint asserted that a "coerced" statement about her rally attendance was "a condition of … retaining her status." But … [j]ust as Carr was entitled to political loyalty from her appointee to the CPAB, she was also entitled to compel that appointee to espouse her political philosophy.

Congratulations to Mark J. Austin and Stephen A. McEwen (Burke Williams & Sorensen LLP) and Michael J. Vigliotta (Office of the City Attorney), who represent the City.