[00:00:00] Speaker 03:
The next case on calendar for argument is Neal versus City of Bainbridge Island.

[00:00:24] Speaker 03:
Good morning, Council.

[00:00:26] Speaker 03:
Council for Appellant, please approach and proceed.

[00:00:34] Speaker 02:
Thank you, your honor.

[00:00:36] Speaker 02:
May it please the court.

[00:00:37] Speaker 02:
I'm Lisa Neal.

[00:00:38] Speaker 02:
I'm the appellant in this case.

[00:00:39] Speaker 02:
I'd like to reserve five minutes for rebuttal.

[00:00:41] Speaker 02:
All right, counsel, please watch your time.

[00:00:45] Speaker 02:
I request that the court reverse the rulings of the district court below and remand for limited discovery and trial my First Amendment retaliation claim, my defamation claim, emotional distress claim, and the Public Records Act claim.

[00:01:01] Speaker 02:
I'd like to focus on the First Amendment retaliation claim.

[00:01:05] Speaker 02:
The district court applied a recent decision of this court, the Lathis v. Huntington Beach case that came down in 2023.

[00:01:14] Speaker 02:
I'd like to start with the effect of that ruling based on my facts.

[00:01:19] Speaker 02:
Now all committee members who are appointed by a council and removed can be removed by a council city council Share the same fate as lathis did in lathis v. Huntington Beach They don't have any first amendment right against retaliation for their speech any longer on those committees and

[00:01:40] Speaker 02:
even though they weren't appointed by a particular council member as latest was so suddenly we're all the public face of the city council

[00:01:51] Speaker 02:
It doesn't matter, evidently, that there was no one-to-one relationship with, as in Lathus, where a council member appointed a particular person to represent her on this board and communicate to the public.

[00:02:05] Speaker 02:
Evidently, it is of no moment that the committee, the steering committee that I was on, was not a direct conduit between the public and the council as the board was in Lathus.

[00:02:18] Speaker 02:
On my committee that I was on, the steering committee

[00:02:21] Speaker 02:
There was an intermediary, the planning commission, and if you look at the code that authorized the steering committee, it makes very clear that the steering committee creates a report and then it goes to the planning commission not once, not twice, but three times.

[00:02:36] Speaker 02:
And then the planning commission makes revisions and so forth.

[00:02:40] Speaker 02:
And sends that onto the council so it's the planning commission that has the relationship with the council.

[00:02:44] Speaker 04:
Council, why does any of that matter?

[00:02:45] Speaker 04:
Isn't it a fundamental part of the First Amendment jurisprudence that governments can regulate the speech of their employees and as a committee woman weren't you effectively an employee?

[00:02:58] Speaker 02:
I was not effectively an employee.

[00:03:00] Speaker 02:
I was a volunteer and we were told we were

[00:03:04] Speaker 02:
Actually officers of a sub-agency land use committee, and I would direct the court all of that's under the rubric of the city Correct it is I would direct you to the decision of this court Highland v. Wonder there to two decisions and in that case they pointed out that the volunteers Still have first amendment rights Despite the fact that they're volunteers

[00:03:30] Speaker 02:
now I understand.

[00:03:31] Speaker 04:
Didn't we hold in Sullivan that volunteers also can be held under the Garcetti precedent that their speech is restricted?

[00:03:40] Speaker 02:
I missed the first.

[00:03:42] Speaker 04:
Sullivan versus University of Washington?

[00:03:45] Speaker 02:
The Sullivan case is something of a red herring if you read the decision the issue was whether their Applications could be disclosed and they said they had an associational right under the first amendment not to have people know who they were associated with It doesn't really apply here

[00:04:01] Speaker 00:
Now, if... What are the limits of this, though?

[00:04:04] Speaker 00:
I mean, if the city council has a committee that says, you know, we're on a committee that's going to beautify the parks of the city of Bainbridge, and somebody's on the committee and decides, you know, I don't like that objective.

[00:04:19] Speaker 00:
I'm going to... I don't want to beautify the parks.

[00:04:21] Speaker 00:
I want to do everything I can to stop that.

[00:04:24] Speaker 00:
Wouldn't the city have the ability to say, you're kind of not going with the goals that we have?

[00:04:28] Speaker 00:
We were elected by the people to do this, and would they not have

[00:04:32] Speaker 00:
You could call that a First Amendment objection too, but would they not have the ability to displace that person?

[00:04:39] Speaker 02:
That would be an interesting question.

[00:04:41] Speaker 02:
That's not what happened in my case, but I think it is important.

[00:04:47] Speaker 00:
But is it not somewhat analogous to what happened in your case where the city has decided that you're not representing the best interests of the city and they've made that judgment?

[00:04:56] Speaker 02:
Well, what happened in my case is that I raised issues of conflicts of interest on the committee and was removed two months after I notified the council and the public about these conflicts of interest.

[00:05:07] Speaker 02:
That's what happened in my case.

[00:05:08] Speaker 03:
The council, weren't you told that those should go to the ethics commission instead of being aired as part of this subcommittee?

[00:05:17] Speaker 03:
And so continuing to bring this into that forum was disruptive.

[00:05:23] Speaker 03:
Were you made aware of that?

[00:05:27] Speaker 02:
The comment that you're referring to was one of the council members when he received the email about the conflicts.

[00:05:33] Speaker 02:
He emailed me back and said you could submit an ethics complaint.

[00:05:40] Speaker 02:
I would submit that the horse was kind of out of the barn at that point.

[00:05:46] Speaker 02:
No one told me before that to issue an ethics complaint.

[00:05:49] Speaker 02:
I requested.

[00:05:51] Speaker 03:
Did you submit an ethics complaint?

[00:05:52] Speaker 02:
I eventually did after advocating for a couple of years for them to fully disclose conflicts of interest when the board or when the committee had their final motion and voted on the report and the two people with the conflicts of interest voted to increase the zoning on their property, I then submitted an ethics complaint.

[00:06:16] Speaker 04:
So just timeline wise, you did not bring your conflicts issue internally first before you publicized it and emailed it out to that list?

[00:06:26] Speaker 02:
Well, I wouldn't characterize it that way, because if you look at my declaration, which is at 2ER 103, I think, and then it goes on, I talked to the committee repeatedly about the ethics program and how we needed to disclose

[00:06:41] Speaker 02:
conflicts of interest I talked to the council liaison and asked her for assistance I actually spoke to the city attorney and he told me no one's exempt from the ethics program but I don't advise on the ethics program because that's a council thing that's not a law you know so I took it.

[00:06:59] Speaker 04:
Did you raise it to the council woman I think in charge of your committee?

[00:07:03] Speaker 04:
I did.

[00:07:03] Speaker 04:
And and then did the council that were actually at that conflict first?

[00:07:09] Speaker 02:
I raised it to the council liaison, yes, and she ignored it.

[00:07:15] Speaker 02:
Yes.

[00:07:15] Speaker 00:
So I... Just why, as a theoretical matter, would the principle of LATHAS be limited to the situation in which a council person has a specific representative on the committee?

[00:07:26] Speaker 00:
That may make it more obvious that there's no First Amendment problem, but why does that mean there is a First Amendment problem in your case?

[00:07:38] Speaker 02:
When you read the Lathis case, it appears to me that it was the direct relationship between the two parties because the court discussed many times the fact that the public could assume that whatever the person on the board said in public was something that the council person agreed with because, hey, she put this person on the board.

[00:08:02] Speaker 02:
in my in my case we don't have that we had a generalized you know they they approve these appointees in a big list

[00:08:09] Speaker 02:
council votes on it and and we're off to the races and I want to return and remind the court that our code unlike the latest code Specifically said that we were appointed to represent a wide spectrum of interests We were not appointed to represent the interests or thoughts or beliefs of the council because this was a land use Committee I assume that's why they wrote it this way and

[00:08:35] Speaker 04:
So you can see, though, if you were a paid committee woman, then you would have no free speech rights, correct?

[00:08:46] Speaker 04:
As an employee of the city of Bainbridge.

[00:08:48] Speaker 02:
Well, employees have free speech rights.

[00:08:51] Speaker 04:
Not when they're talking about subjects within their employment.

[00:08:56] Speaker 02:
Even even when they're talking about the subject of their employment there are cases such as Highland v. Wonder Garcetti talks about this and Discusses the fact that if there's a completely internal if it's your work product that you're doing for your

[00:09:11] Speaker 02:
the company and you're communicating, or the government, and you're communicating with your superiors about that work product, then there might not be a First Amendment right, because that's really the employment relationship.

[00:09:24] Speaker 02:
But once the person who's employed goes outside that sphere, and if they are talking about a matter of public concern, such as conflicts of interest, then they do have First Amendment rights, even if they're an employee.

[00:09:39] Speaker 03:
But if they do it in such a way that it

[00:09:41] Speaker 03:
disrupts the working relationships, then there's no First Amendment protection.

[00:09:46] Speaker 03:
Is that correct?

[00:09:47] Speaker 02:
Yes.

[00:09:48] Speaker 02:
And I go back to the Highland v. Wonder case, which I think is very instructive about the disruption.

[00:09:55] Speaker 02:
It's sort of a sliding scale.

[00:09:57] Speaker 02:
What is the speech about if it's about conflicts of interest, if it's about corruption, which it wasn't in my case, of course.

[00:10:03] Speaker 02:
But then the amount of disruption that has to be allowed is much higher.

[00:10:09] Speaker 02:
And I believe it was that court that even pointed out that, you know, if you're pointing out a problem with the other people that you're working with that's an ethical problem, that's going to cause disruption.

[00:10:19] Speaker 02:
It's going to cause hard feelings.

[00:10:21] Speaker 02:
But we can't shut that down.

[00:10:23] Speaker 02:
And that's the heartburn I have with applying Lathis to my situation is,

[00:10:29] Speaker 02:
Now it seems that even governmental malfeasance cannot be spoken of without risk of retaliation, either removal from the committee or any retaliation for the First Amendment rights.

[00:10:41] Speaker 02:
I had wanted to reserve five minutes.

[00:10:43] Speaker 02:
Does the court have more questions on this?

[00:10:46] Speaker 02:
It appears not.

[00:10:47] Speaker 02:
Thank you, counsel.

[00:10:48] Speaker 02:
Thank you.

[00:10:59] Speaker 01:
Good morning.

[00:11:00] Speaker 01:
May it please the court.

[00:11:01] Speaker 01:
My name is Janie Freeman.

[00:11:02] Speaker 01:
I represent the city of Bainbridge Island, who was the defendant below in this case and is a respondent here, along with Kari Lester, who is in the courtroom as well.

[00:11:13] Speaker 01:
The district court properly

[00:11:15] Speaker 01:
found that commonality of political purpose was a reasonable expectation of volunteers that the City Council here appointed to a planning advisory committee that was established by the City Council to gather feedback from their local constituents

[00:11:31] Speaker 01:
and to provide recommendations regarding development of a sub-area within the city of Bainbridge Island.

[00:11:41] Speaker 01:
The court so far has addressed a couple of different ways to analyze plaintiff's First Amendment claim here.

[00:11:50] Speaker 01:
how the claim would be analyzed if she was akin to an employee.

[00:11:54] Speaker 01:
The plaintiff herself has distanced herself from being considered an employee.

[00:12:00] Speaker 01:
She was not an employee in this case, whether paid or unpaid.

[00:12:03] Speaker 01:
She was not in a position that was in the nature of an employee or even employee-type volunteer.

[00:12:10] Speaker 01:
She also was not an elected official.

[00:12:13] Speaker 00:
But when you say, when you make the point that she wasn't an employee, are you then, do you draw from that that she would have even less rights than an employee?

[00:12:22] Speaker 01:
Under the, under the Lathas, yes, under the Lathas Doctrine, which I think controls, should control this case.

[00:12:28] Speaker 01:
The reason we went down the line and also discussed is sort of an even if Lathas didn't apply, then we would go look at how courts have analyzed the limitation on First Amendment rights of, for example, employees who do not have a- Yeah, because you raised the Garcetti in your brief, but it seems like you're backing out from it now.

[00:12:47] Speaker 01:
No, no, I'm not backing out from it.

[00:12:49] Speaker 01:
As a defendant in this case, I've responded to the claims that the plaintiff has made.

[00:12:53] Speaker 01:
And initially, the plaintiff was arguing that she was like an employee.

[00:12:57] Speaker 01:
She was like an unpaid employee.

[00:12:58] Speaker 01:
And so those are, even if you found the Lathos Doctrine didn't apply, those arguments still do apply.

[00:13:04] Speaker 01:
And the questions that you had about whether it's an employee speaking within the course of their job, like in Garcetti, the city would have some authority

[00:13:14] Speaker 01:
to regulate the speech of their employees when they're speaking on their behalf.

[00:13:18] Speaker 04:
In this case, the last... Are you saying she's like an employee or not?

[00:13:22] Speaker 01:
I am not saying she's like an employee.

[00:13:24] Speaker 01:
I'm saying in the past she argued she was like an employee.

[00:13:26] Speaker 04:
But if you're saying she's not like an employee, then how does Garcetti apply?

[00:13:30] Speaker 01:
I'm just saying, so again, Lathas controls the day here, but if, for example, the Lathas decision came out in the middle of this litigation, and so we were responding to an even if the court today decided Lathas didn't apply, for example, if we followed Ms.

[00:13:48] Speaker 01:
Neal's arguments, she still would not prevail under those standards, under standards if she called herself an employee, under standards if she called herself some sort of an official.

[00:13:57] Speaker 04:
She's not like an employee.

[00:13:59] Speaker 04:
She's serving on a committee discussing public government benefits and functions.

[00:14:04] Speaker 01:
So this is what's different about this case and distinguishes her from an employee or an elected official is this is a situation where the city of Bainbridge Island by its own legislative code established its own process as to how it wanted to govern and develop land use processes the city the City Council has authority to do that and

[00:14:31] Speaker 01:
In order to understand how Lathas applies here, Ms.

[00:14:35] Speaker 01:
Neal tried to distinguish Lathas from this situation because in Lathas, a single council member both appointed and removed a volunteer on an advisory committee, much like we have here.

[00:14:50] Speaker 01:
In that case, the city code in that particular case was different than the Bainbridge-Ellen city code.

[00:14:56] Speaker 01:
And the same with the Gloria versus Hodges case where you saw a mayor veto reappointment of a similar volunteer to an advisory committee.

[00:15:07] Speaker 01:
The reason why the doctrine still applies here is our form of government in the city of Bainbridge Island.

[00:15:13] Speaker 01:
The city of Bainbridge Island has chosen to be governed by a council manager form of government, which is different than a strong mayor form of government, where the mayor has the last say, or a council mayor form of government, which we saw in the Hodges v. Gloria case, where the city council made decisions, but that mayor retained authority to veto.

[00:15:36] Speaker 01:
Under the council manager form of government, only the seven elected city council members

[00:15:41] Speaker 01:
have authority to make decisions binding on the city.

[00:15:45] Speaker 01:
And they can only do it by majority vote.

[00:15:47] Speaker 01:
No one council member can just make a decision on their own, like the code provided for in the Hodges v. Gloria case.

[00:15:55] Speaker 01:
That was a different thing.

[00:15:56] Speaker 03:
How is this, Neil, appointed?

[00:15:57] Speaker 01:
Ms.

[00:15:58] Speaker 01:
Neal was appointed by vote of the City Council.

[00:16:01] Speaker 01:
Recommendation of the Mayor had to be confirmed by the City Council.

[00:16:04] Speaker 01:
And those, the processes for creating this committee, how volunteers are appointed and removed, and their tasks that they are given by the City Council are all developed by the local municipal code that was adopted legislatively by the Bainbridge Island City Council.

[00:16:20] Speaker 01:
So the city council could have decided to write their code a different way.

[00:16:25] Speaker 01:
The city council could have put more restrictions on the way they appointed volunteers, the nature of their duties, etc.

[00:16:31] Speaker 01:
But they didn't.

[00:16:32] Speaker 04:
So that's why I thought the Garcetti line of precedent is just more straightforward.

[00:16:37] Speaker 04:
If she's like an employee, the city could regulate her speech.

[00:16:40] Speaker 04:
I just don't know why you're not embracing that more now.

[00:16:42] Speaker 04:
It's not that I don't get- Because you don't have to go through all this rigmarole about the procedures of how you hire and fire people.

[00:16:49] Speaker 01:
I think number one, because I think Lathas more directly controls the decision here, but even as an appointed volunteer on a committee, the Garcetti doctrine would still apply, because she has been tasked with particular duties and tasked by the City Council, and the City Council still does have authority to dictate how it's done.

[00:17:09] Speaker 01:
And if they don't like the way that she's doing it, they can govern what her communications

[00:17:14] Speaker 01:
to the public on their behalf.

[00:17:16] Speaker 03:
And in this case... Can they do that though in retaliation if she's pointing out improprieties?

[00:17:22] Speaker 03:
Does she have a First Amendment right to point out improprieties without being relieved of her duties?

[00:17:29] Speaker 01:
So again, number one, under the Lathas doctrine, yes, she does not have First Amendment protection.

[00:17:34] Speaker 01:
if she is a political appointee, which she is here.

[00:17:37] Speaker 01:
And I can go further on that.

[00:17:38] Speaker 01:
Under the Garcetti doctrine that you're discussing, though, what was made clear in Garcetti is when an employee is

[00:17:47] Speaker 01:
speaking within their role and for example here Ms.

[00:17:51] Speaker 01:
Neal was acting as a council member and what she claims that she was retaliated for was speech during meetings while she was working as a volunteer committee member

[00:18:05] Speaker 01:
And second, some emails that she sent out from her city committee email reporting on the work of the council.

[00:18:12] Speaker 01:
And so, yes, under Garcetti, the city council does have authority to still regulate that type of speech because it's being done in the course and scope of a position they appointed her to.

[00:18:26] Speaker 00:
But I understand your point on Lathis is that, you know, if you're in

[00:18:29] Speaker 00:
the Garcetti world, you're trying to evaluate, is this really within the scope of this person's official duties or not?

[00:18:35] Speaker 00:
And maybe we would say yes, or maybe we would say no, because reporting on ethical violations, alleged ethical violations, is really not part of her official duties.

[00:18:44] Speaker 00:
That should be subject to pickering.

[00:18:46] Speaker 00:
But with Lathos, you don't have to get into any of that.

[00:18:48] Speaker 00:
And you can just say, she's essentially a political appointee.

[00:18:52] Speaker 00:
And we are the representatives of the people of the city of Bainbridge Island, and we can fire somebody for any reason under our code, and that's what we did.

[00:18:59] Speaker 01:
Exactly.

[00:19:00] Speaker 01:
And Latha specifically said to go to your question, your honor, is that there is no First Amendment protection for that.

[00:19:06] Speaker 01:
So it sort of is before we even get to these other analyses.

[00:19:09] Speaker 01:
There is not First Amendment protection.

[00:19:12] Speaker 01:
The city council that who established this, the existence of the committee, established and approves appointees to the committee, solely has authority to remove appointees from the committee.

[00:19:23] Speaker 01:
The city council has to approve the committee's work plan once they start on it.

[00:19:27] Speaker 01:
The city council has tasked this particular committee to interface with their constituents.

[00:19:33] Speaker 01:
And in this regard, some of the arguments Ms.

[00:19:35] Speaker 01:
Neal made really has it backwards.

[00:19:37] Speaker 01:
She has argued that once she was on the committee, her interfacing with the public is

[00:19:42] Speaker 01:
was a duty that she had to certain people in the public.

[00:19:46] Speaker 01:
I would disagree with that.

[00:19:48] Speaker 01:
Her duty was to interface with the public on behalf of those elected officials that that public chose to represent them.

[00:19:57] Speaker 01:
The public is the constituents of the council, not of Ms.

[00:20:00] Speaker 01:
Neal.

[00:20:00] Speaker 01:
And the council has, again, by their own code created, and they are authorized to do so, sole authority for the council to appoint and to remove

[00:20:10] Speaker 01:
and to ask these volunteers to act on their behalf, and they can decide at any point without cause whether or not they would like a certain committee member to continue.

[00:20:24] Speaker 01:
That's further confirmed when we look at the city's, the governance code that is a resolution adopted by the city that kind of collects together some of its

[00:20:39] Speaker 01:
basic principles that appear in its code.

[00:20:42] Speaker 01:
And that document also establishes that advisory committees like the Sub-Island Committee are, first of all, they're advisory, they're temporary, and they are temporarily created by the City Council for a specific person, sorry, a specific purpose.

[00:20:57] Speaker 01:
Only the City Council can decide who's on it, who's not on it, what they do.

[00:21:01] Speaker 01:
What's interesting is that there's also a clause in that particular document that notes

[00:21:07] Speaker 01:
that when new council members are elected, if this advisory committee such as the Sub-Island Committee is doing its temporary work while new council members are elected, they are authorized to review who's on the committee and if they still agree that the people on the committee are the ones that they want or the work is going the way that they want it.

[00:21:29] Speaker 01:
which further confirms that this is a political appointment was designed to be that way, and not in the political sense of whether someone's a certain party or not, but that local governments are authorized to manage their own local affairs by representative government.

[00:21:47] Speaker 01:
And here, because we have the council manager form of government, that means the majority of the elected officials, the elected council members, make those decisions.

[00:21:55] Speaker 00:
So why was Ms.

[00:21:56] Speaker 00:
Neal discharged?

[00:21:59] Speaker 01:
There was a vote There was a motion to just to release her from the committee there was some discussion and there was a vote and We don't know the motives of each of the five people who voted to discharge her again as a defendant We are responding to miss Neal's arguments miss Neal has argued.

[00:22:19] Speaker 01:
She believes that she was terminated or removed from the committee because of certain

[00:22:26] Speaker 01:
Specific statements that she says she argues are protected by the first amendment, so I'm just taking each of those arguments in turn and Addressing whether or not a cause of action exists and a cause of action simply doesn't exist under the first amendment For her removal from this committee regardless of why any one of the five Council members may have voted to remove her And I'm happy to address any further questions that you have or if you have

[00:22:57] Speaker 01:
would like me to address any of the, obviously we are also requesting that the court affirm dismissal of Ms.

[00:23:05] Speaker 01:
Neal's tort claims filed under Washington law and her Public Records Act claim, which I think are very clearly briefed in the briefs.

[00:23:21] Speaker 01:
If you don't have further questions in your, thank you for your time.

[00:23:24] Speaker 01:
Thank you, counsel.

[00:23:37] Speaker 02:
Thank you.

[00:23:38] Speaker 02:
I'm not really sure where we are on the employee volunteer issue, but when I read, again, I keep bringing up Highland v. Wonder, but it was a good case, I thought.

[00:23:50] Speaker 02:
These theories are not really designed to require you to put someone in a box.

[00:23:57] Speaker 02:
These theories are designed to balance the interests of an employer,

[00:24:02] Speaker 02:
or a government with a volunteer against the First Amendment rights of the volunteer.

[00:24:06] Speaker 02:
That's the way I've been seeing it.

[00:24:08] Speaker 03:
So what case are you relying upon to inform your view as to how that works?

[00:24:14] Speaker 03:
Which case is most helpful to you in your view?

[00:24:16] Speaker 02:
I think Highland v. Wonder is one of the most helpful.

[00:24:19] Speaker 02:
And there are two decisions that is Highland v. Wonder, one and two.

[00:24:23] Speaker 02:
Because it went back for a trial and then came back up because they really it's a volunteer It was involved the memo that was written was about issues that arose during the volunteer position But it was about a problem that this person saw with the the workings of what was happening I won't go into a lot of factual detail and

[00:24:45] Speaker 02:
And so that was a memo that arose out of what the person was doing as a volunteer.

[00:24:51] Speaker 02:
And when the person was unable to get any traction with the people he spoke with about it, he went over their heads and went to, I think, a chief judge or something like that.

[00:25:03] Speaker 02:
And so the Ninth Circuit said that even though that was part of, you know, arose out of his job, it wasn't his job to do that.

[00:25:11] Speaker 02:
And that's the same situation I have, is I wasn't there to do ethics reports to anyone, the public or the council.

[00:25:20] Speaker 02:
And so that's what really concerns me about applying Lathis so blanketly to anyone who's appointed.

[00:25:26] Speaker 04:
So if Lathis does apply to your case, do you think, do you can see that you would lose?

[00:25:33] Speaker 02:
Yes.

[00:25:37] Speaker 02:
And that's why I'm here, because I do think it's very important.

[00:25:40] Speaker 04:
And you have to describe why being accountable to a single member is different than being accountable to the entire board, and why we should draw a constitutional distinction.

[00:25:50] Speaker 02:
I think that it's a number of things that came out of Lathis.

[00:25:54] Speaker 02:
It was the direct relationship

[00:25:56] Speaker 02:
because the court was plainly, and I listened to the oral argument as well, the court was plainly struck with the notion that you could appoint someone who then went out to a protest and did something that you would never do, and suddenly you're associated with that person.

[00:26:12] Speaker 02:
That was really, it seemed to me, from the oral argument anyway, something that the court really latched onto.

[00:26:18] Speaker 02:
And so you need the direct relationship with the person that has appointed the person

[00:26:27] Speaker 02:
Preferably, you'd have a code that actually has a removal procedure, which the steering committee code does not.

[00:26:32] Speaker 04:
In that case, I think the employee went to an Antifa rally.

[00:26:36] Speaker 04:
If you went to an Antifa rally, why wouldn't that look poorly on the entire committee here?

[00:26:43] Speaker 02:
I've thought about that.

[00:26:44] Speaker 02:
And this is the balancing issue.

[00:26:49] Speaker 02:
But I have to keep coming back to my facts at some point is that

[00:26:53] Speaker 02:
If someone is you know as a volunteer I've got no whistleblower protections under state law I didn't point that out in the briefing, but it's irrelevant really but the point is that now these volunteers have no protections for even Conflicts of interest or even corruption statements made to the public they can be retaliated against

[00:27:13] Speaker 00:
Although no one's stopping them from raising these points, you've been able to raise these points in your capacity as a political representative while you were there, but you've continued to be able to do that.

[00:27:29] Speaker 00:
It's not as though anyone's speech is being silenced.

[00:27:31] Speaker 00:
The question is, do you have the right to make the speech as somebody

[00:27:34] Speaker 00:
who's being retained by the city council for this role.

[00:27:37] Speaker 02:
Yes, I don't want to overstate that.

[00:27:39] Speaker 02:
You're correct.

[00:27:40] Speaker 02:
I'm not saying that my speech was silenced by this, but it was retaliation, and First Amendment retaliation is important.

[00:27:47] Speaker 02:
We don't allow it for a reason because it silences other people.

[00:27:52] Speaker 02:
It chills speech.

[00:27:52] Speaker 04:
The other way you could have got at that is that you can limit Lathus in some way, even if it does apply.

[00:28:00] Speaker 04:
The speech you're allowed to retaliate is limited to certain types of speech, like attending Antifa rallies.

[00:28:08] Speaker 02:
I think that that is something that I would like to see however the court decides is something describing exactly what LATHAS means because right now it means retaliation.

[00:28:19] Speaker 02:
It's a free for all.

[00:28:20] Speaker 02:
Right.

[00:28:21] Speaker 02:
Thank you.

[00:28:22] Speaker 02:
All right.

[00:28:22] Speaker 02:
Thank you.

[00:28:22] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:28:25] Speaker 03:
The case just argued is submitted for decision by the court.