Timberlane school board's 'gag order' may spur lawsuitBy SHAWNE K. WICKHAM
New Hampshire Sunday News
March 29. 2014 9:30PM
The New Hampshire Civil Liberties Union is considering possible legal action against the Timberlane Regional School Board if it does not repeal "unconstitutional" new restrictions on how board members can speak and act.
The board voted, 7-2, on March 20 to adopt rules governing the behavior of members. Rule 7 states that "all decisions made by the board will be supported by all board members regardless of how a member voted." And it adds: "Efforts to undermine a decision will not be tolerated."
That's a violation of board members' right to freedom of speech under the First Amendment of the U.S. Constitution and Article 22 of the state constitution, says Gilles Bissonnette, staff attorney for NHCLU.
Then there's new Rule 8: "All communication to the press will be provided by the Chair. Board members contacted by the press will not comment and direct the press to contact the Chair."
And that, according to Bissonnette, is a violation of members' constitutional right to engage in political speech to the press. "It is the equivalent of a gag order with respect to the eight members of the board who are not the chair," he told the New Hampshire Sunday News.
Timberlane Regional School District includes the towns of Atkinson, Danville, Plaistow and Sandown.
The NHCLU attorney sent a letter on Friday to Timberlane board Chairman Nancy Steenson, school Superintendent Earl Metzler and the school district's attorney about the new rules. "There is no compelling governmental interest that could possibly justify such a substantial intrusion on First Amendment rights," Bissonnette wrote.
If the board does not repeal Rules 7 and 8 by April 3, he wrote, the NHCLU will "act accordingly."
"We do not believe it is a productive use of anyone's time or of taxpayers' money for the district to defend such patently unconstitutional rules," he wrote.
Steenson could not be reached for comment on Saturday.
In an interview on Saturday, Bissonnette noted school board members are elected representatives. "They're tasked to exercise independent judgment," he said. "They, in the exercise of their independent judgment, are perfectly entitled to decide when and how to engage their constituents."
And engaging with the press is "a vital form of communication for a public servant," he said.
The basic problem with both rules, Bissonnette wrote in his letter, "is that they ignore the bedrock principle that an elected official enjoys the same free speech rights as any other citizen."
Individuals do not surrender those rights when they become elected officials, he said, "and the government may not impose greater speech restrictions on elected officials than it could impose on members of the general public."
Board members Donna Green and Peter Bealo voted against adopting the rules, which were written by former board Chairman Robert Collins.
"I understand the ... desire for solidarity and a single voice, but when we became elected, we didn't give up our right to free speech," Green said at the March 20 meeting. "We all have equal authority, and I think we should all be free to express our feelings on certain topics."
Green also said it appears that "a lot of these provisions are designed to suppress minority opinion."
Steenson responded that "there is always room for dissent in this room" and noted that board meetings are televised, so the public can see where members stand on any given issue.
"We're not suppressing anyone's free speech by asking board members not to speak to the press whenever they choose to," she said at the meeting. "It just would not send a good message out from Timberlane. It speaks to public relations more than anything else, in my mind."
Bissonnette said he understands that the majority of board members felt they wanted to present "a united front" on matters of policy, but he said, "I don't think this rule is the right way to go."
In fact, he said, "the best way to deal with a situation like this is not to restrict speech but to ... engage in further speech, so the public can evaluate the full universe of ideas that are being presented by the various board members."
Bissonnette said the rules need to be repealed. If they're not, he said, "we're prepared to take further action that we think is appropriate, and among those actions could very well be litigation."
A former member of the ConVal School Board who was censured four years ago for speaking out against a proposed school bond that her board had endorsed was shocked yesterday to hear about the Timberlane rules.
"Did we suddenly in that part of New Hampshire get taken over by the Soviet Union?" asked Gail Cromwell, who lives in Temple.
Cromwell won the Nackey S. Loeb First Amendment Award in 2010 because of her fierce defense of her free speech rights while serving on the ConVal board.
She said speaking out publicly is a critical part of being an elected board member. And she said she welcomed the NHCLU's intervention in the Timberlane situation.
"These are not American rules," she said. "These are some communist country or some country where they're trying to control everything.
"People shouldn't stand for that."
Sunday News correspondent Adam Swift contributed to this report.