Council Eases Litigation Ban for Board Appointments, But ACLU Says It's Still Unconstitutional

The City Council on Tuesday changed its ban on residents in active litigation from being appointed to city boards and commissions to make an exception for those involved in class-action lawsuits.

After the council passed the rule in January, some residents and organizations raised concerns about its constitutionality.

Cervantes said the American Civil Liberties Union of Southern California sent the council a letter after the rule was initially passed, warning that the ban could violate residents' First Amendment rights to sue the government.

The ACLU also submitted comments on the revised resolution Tuesday, which Cervantes read aloud.

"Should the city adopt the revised resolution in its current form, it will violate the constitutional rights of people who sue the city and who nevertheless wish to contribute their services to the city," the ACLU's letter stated. "The city should reject the currently contemplated revision and instead rescind all the relevant portions of the current resolution to avoid the risk of costly litigation..."

In light of the letter, Cervantes moved to postpone the vote on the resolution and take the matter into closed session; however, her motion failed.

The council ultimately voted 4-1 to pass the revised resolution, with the understanding that the ACLU's letter would be taken up in a future closed session. Cervantes cast the lone "no" vote, after her earlier motion to delay the vote and refer the matter to closed session failed 3-2.

Councilmembers Sean Mill and Steven Robillard argued that the council already has a practice of not appointing people who are in litigation against the city, and that Tuesday's vote simply clarified how class-action lawsuits fit into that rule.

"I understand the reasoning behind delaying this vote, but as the city attorney mentioned, we already have [the rule] in place," Robillard said. "It's a messier version without this language of saying to not include class-action lawsuits."

Mill also noted that residents have no constitutional right to serve on a board or commission.

"If we're going to take this back because we got a letter…this is starting a pattern of behavior," Mill said. "If you don't like the actions the city has taken, have somebody send a letter and say, 'You know what? We might sue you…' [the council has] a right to determine who serves on boards and commissions in the city."

Several residents spoke against the rule.

Ward 1 resident Jason Hunter, who filed a lawsuit over a measure to appear on the June 2 ballot, argued that a blanket ban is overly broad and likely unconstitutional, and that appointments should be decided case by case.

"I think you can exclude [people] from boards on an individual basis. I think that's legal," Hunter said. "I think what's not legal is writing a blanket policy that says… if you use your first amendment right to petition your government, then you are automatically excluded…You can't keep people off of boards or commissions where you think there's going to be some sort of conflict or deleterious effect of them being on the boards or commissions."

Another unnamed caller raised similar constitutional concerns.

"A lawsuit is the ultimate petitioning your government for a redress of your grievances. So to say that if we ever sue over anything, we can't ever serve on a board or commission is completely unacceptable," the caller said.

By Micaela Ricafortec