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."
