Separation of Advocacy and State

Tiverton’s public hearing on charter-related questions potentially to be placed on the next ballot didn’t let out until after 11:00, Monday night, although many in the audience (including the Providence Journal’s Gina Macris) left after the headline-grabbing debate over the future of the financial town meeting had ended. I stayed so late — despite dying stealth-blogger-gear batteries and a lack of worthwhile reading material — out of interest in the penultimate question, the passage of which would result in the insertion of the following language in the town charter (with the deleted text removed, per Monday night’s vote, I believe):

No officer or employee of the Town, including the School Department, shall use, or cause to be used, Town property, goods, money, grants, or labor to influence the outcome of or encourage or discourage elector voting with respect to, an election, ballot question, Financial Town Meeting, or referendum; the foregoing shall not prohibit the distribution or publication of election, ballot question, Financial Town Meeting, or referendum information by the Town Clerk, the Board of Canvassers, or a Charter Review Commission.

During the discussion period, Town Council President Louise Durfee let it be known that she had consulted an ACLU attorney who believed the question to be sufficiently broad that a suit could be brought against the town on First Amendment grounds even before the rule had been invoked in response to an alleged violation. Inasmuch as she must file a W2 with the town, and is therefore an employee, she is concerned that she might be restricted from offering her opinion to a constituent while waiting in line at CVS on the grounds that she had expended town “labor” to promote her side.
Thus do lawyers leverage their own proclivity for distorting plain understanding to argue that reformist legislation might be subject to invidious interpretation beyond the scope of its language. By constitutional law, the argument goes, all town employees must be free to speak their minds, and some judge might interpret the above language in contravention of that right, so the law must be unconstitutional.
One needn’t be a lawyer (indeed, it might help not to be) to comprehend that no judge could produce such an interpretation because the First Amendment forbids it. The language clearly does not explicitly propose a restriction of free speech, and I believe that a fair reading cannot do otherwise than conclude that it doesn’t implicitly do so.
To illustrate this point, I asked Ms. Durfee whether she is currently permitted to respond if a constituent in line at CVS asks her whether she believes there to be a God. Her response, in concert with Councilor Brian Medeiros, was that, as a secular servant of the people, her opinion on theology is irrelevant. It is not. That only seems to be the case because church/state boundaries in the law have been so thoroughly traversed, thereby illustrating the legal delineation of public “labor,” specifically by precedent allowing public officials to express opinions on religion, whether in the course of their duties or in their private lives.
If Louise Durfee, as an always-on-duty public servant, can speak her mind about religion despite clear proscriptions against her implementing such views via the resources and privileges available by virtue of her office, then certainly she could offer her views on a budget despite a charter rule intended to “prohibit the use of Town resources to influence the outcome of a voting contest.”

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George Elbow
George Elbow
12 years ago

It seems the issue is simple and straight forward.
Other than Entitlement-minded fools like Providence FD Union Pwesident, Lazy-ass Pauly “No Show” Doughty, who, for 3+ years, arrogantly collected Taxpayer funded paychecks and benefits while “doing Union business”, as opposed to the FF job he was paid to do, who can possibly argue with the INTENT of this ordinance / Charter amendment?
So the question should be whether Ms. Durfee bothered to ask for and obtain from the ACLU acceptable language that would satisfy the common sense intent of the proposal. Or did she simply speak to the ACLU to obtain a road-block.
In other words, did Ms. Durfee seek solutions or just problems?
Lastly, sometimes you just need to push on in spite of the lawyers opinion. There is a reason there are TWO lawyers in most cases …as there is always another side.

Richard
Richard
12 years ago

Several of us, last night and today, have expressed the desire to be “a fly on the wall” of the Tiverton CVS when Justin K (a Kafka hero?) approaches Louise Durfee and asks her if she believes in God. One wonders if this could constitute “spiritual harassment”? Various scenarios that might follow include Louise saying “yes”, or “no”, or asking “define God”. A further favorite scenario seems to involve a can of pepper spray. But no. Ms. Durfee believes in free speech for everyone. The crux of the question is why didn’t they try to put forward a ballot question that doesn’t pander to the virulent hatred by some voters of everything to do with the public schools. The original question (before the strike) is blatantly, laughably unconstitutional. Hence Durfee’s concern about further litigation costs. Town Solicitor Tietz proposed the strike which was accepted by the Council. It IS an improvement, because even liberals like me do not want the school board to communicate with parents a message that they must override the cap at an upcoming meeting or the Sky will Fall. They never did that, anyway, but that surely would be illegal. No, the current amendment probably also fails Constitutional review because (as the dynamic duo of Jeff Caron and Cynthia Nebergall hissed to my back when I was speaking last night), it MIGHT prevent even this mild and utterly acceptable result: The School Board makes phone calls, sends emails and and/or notes to parents which say: Next Wednesday night there is an important meeting open to all voters at the high school, the annual financial meeting, at which the school and municipal budgets of the town will be voted on. Whether or not you vote, we encourage you to attend.” Caron and Nebergall insist that such communication… Read more »

Justin Katz
12 years ago

Richard, Your extreme partisanship clearly illustrates that decades of propagandists’ efforts to make voting “Democrat” equivalent to voting for what’s “nice,” “good,” “right,” and so on have yielded fruit among a certain set that wishes to obtain moral authority by default. Republicans, remember, are the party ‘par excellance’ when it comes to surpressing the votes of groups they want to dominate: blacks, Jews, Hispanics, people who can’t read well, the poor, the foreign born, former prisoners who have served their sentences. It’s beneath response. The following, on the other hand is worth response, because it’s patently wrong: It IS an improvement, because even liberals like me do not want the school board to communicate with parents a message that they must override the cap at an upcoming meeting or the Sky will Fall. They never did that, anyway, but that surely would be illegal. Supt. Rearick’s recorded phone call over the district’s public system made clear that “existing programs” were threatened by the first financial town meeting result and ended thus (emphasis added): In order for this to be avoided, please attend to express your concerns. Illegal? Apparently not yet. I think a more likely scenario than the one that you suggest is that the school committee permits the PTO, or some other “private” organization to do its work for it, perhaps with letters going home with children to parents, and the taxpayer side demands either a judicial rebuke or equitable opportunities, thus potentially sparking the challenge. Alternately, the powers that be could just organize a private group with no inappropriate linkage with or access to the privileged resources of the town government and fight their budget battles on fair ground. Of course, I offer that with the understanding, from your previous writings, that you’re more concerned that the “right… Read more »

Monique
Editor
12 years ago

“So the question should be whether Ms. Durfee bothered to ask for and obtain from the ACLU acceptable language that would satisfy the common sense intent of the proposal. Or did she simply speak to the ACLU to obtain a road-block.
In other words, did Ms. Durfee seek solutions or just problems?”
Great question.
So concern over potential litigation is the primary guiding force in this decision? That would be bad. It’s possible to do something right and still get sued. Conversely, you may never do anything right if your first consideration is fear of a lawsuit.

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