A Batavia mother charged with harassment in the second degree for sending a series of angry emails, including one with profanity, to City School officials will not need to admit to any wrongdoing under terms of a plea agreement reached in City Court on Wednesday.
Kate Long, 39, accepted an offer from the District Attorney's Office to get the charge against her dismissed if she can avoid any additional criminal charges over the next six months.
That would wipe the slate clean, as if she was never charged in the first place. It would also mean no legal challenge to her arrest, which could have very well violated her First Amendment rights to free speech and petitioning the government for a redress of grievances.
It makes perfect sense that Long would accept the plea offer, said Constitutional scholar Jared Carter, but the plea could also potentially mean government agencies remain free to use the harassment 2nd statute to silence critics.
"My initial reaction, from a pure First Amendment perspective, is this was always a troubling case based on the facts as I understand them," Carter told The Batavian on Wednesday evening. "On one hand, there is some vindication of the First Amendment on the basis of the dismissal. Of course, you don't have a ruling from a court saying this arrest was unconstitutional, so does the school district or law enforcement or whatever (agency) have any check on power? Can they again do what they want to do, and the short answer is, 'Yes.' That's the unfortunate aspect of all of this."
Carter is counsel with the Cornell Law School First Amendment Clinic, based in Ithaca, and a professor of Law at Vermont Law and Graduate School. Carter specializes in First Amendment cases.
Long, a mother of three children, was issued a summons in November and charged with a single count of harassment in the second degree, a violation of Penal Law 240.26(3), which reads:
He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
The charge was based on a criminal complaint filed with Batavia PD by John Marucci, president of the Board of Education for the Batavia City School District.
The complaint cited a Nov. 8 email that contained profanity and noted that Long had sent a series of emails over a short period of time complaining about how her son's Spanish class at Batavia Middle School was being handled.
In order to comment on the charge for an article The Batavian published on Dec. 18, Carter reviewed the emails and the charging documents and offered the opinion that Long's conduct would likely be viewed as protected speech by any court asked to rule on the constitutionality of her arrest.
"They're (prosecutors) skating on very thin constitutional ice if any ice at all," Carter told The Batavian in December when discussing the arrest and prosecution of Long. "The First Amendment robustly protects Freedom of Speech, and the freedom to criticize government action. That would include criticizing the way that a school handles itself."
In 2014, the state's aggravated harassment statute, which contained similar language but specifically targeted speech, was ruled unconstitutional. The state Legislature changed that law the following year but left open the ability of police to arrest individuals engaged in speech that is deemed offensive conduct under the harassment 2nd statute.
Buffalo attorney Tom Trbovich, retained by Long to represent her in City Court, told The Batavian after her initial court appearance that he wasn't likely to mount a constitutional challenge to her arrest, suggesting an easier resolution could be negotiated with the District Attorney's Office.
"I think this was a good resolution," Trbovich said after court on Wednesday. "Right now, we were circling the wagons and making sure that nothing goes wrong. And hopefully, this will be taken care of in six months as if it never happened."
Asked if he thought his client committed a crime, Trbovich offered a slight smile and said, "I don't want to antagonize the office. I got a good disposition."
There are no conditions on Long over the next six months other than she avoid a criminal conviction, though Trbovich offered in court that Long would agree to have no further contact with school employees at Batavia Middle School.
Her son has transferred to Notre Dame, and her husband would have remained free to talk with school officials.
Judge Durin Rogers rejected the condition because there are typically no additional conditions on an adjournment in contemplation of dismissal.
Carter said Trbovich getting a potential dismissal of the charge for his client was understandable.
"Criminal defense attorneys try to get the best outcome for their clients by keeping them out of harm's way," Carter said. "It totally makes sense to tread carefully, to get the best outcome for his client as he can. I totally get that. I'm not second-guessing that at all."
But, he said, the First Amendment is still in play for Long if she wishes to pursue it as a civil matter, meaning, filing a lawsuit against the school district or the police department, if she feels her arrest did her harm or that it has a chilling effect on her future speech. The fact she offered to have no future contact with the school, Carter indicated, suggests her arrest does indicate she is willing to self-censor out of fear of repercussion.
"You have to have some sort of injury to get in the courthouse door," Carter said. "Would a chilling effect be enough if she wanted to bring a First Amendment case? It could be injury enough to get in the courthouse door."
Batavia City School District, District Office. Photo by Howard Owens.
Free speech and the right to petition your government over grievances: two rights clearly protected in the United States by the First Amendment.
But when does complaining to government officials cross the line into harassment?
That's a high bar to cross, and should be, according to Constitutional scholar Jared Carter.
Carter is counsel with the Cornell Law School First Amendment Clinic, based in Ithaca, and a professor of Law at Vermont Law and Graduate School. Carter specializes in First Amendment cases.
Wherever that line is between protected speech and harassment, a Batavia mother who became upset in November with how her son's Spanish class at the Middle School was being taught didn't cross it, Carter told The Batavian after reviewing available documents.
The Batavian provided him with documents received from Batavia City Schools, which included emails sent by Kate Long to Superintendent Jason Smith, School Board Vice President John Reigle, along with other district officials, and the charging documents obtained from Batavia City Court.
The Charge Long, 39, mother of three children, was issued a summons in November and charged with a single count of harassment in the second degree, a violation of Penal Law 240.26(3), which reads:
He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.
Carter said the language of the statute is too vague and overly broad to fairly apply to speech and is the same language that was once part of the state's aggravated harassment law, which was struck down by a federal court as unconstitutional in 2014.
The former aggravated harassment statute dealt specifically with spoken and written communication that was likely to "cause annoyance or alarm ... for no purpose of legitimate communication."
In People v. Golb, the court ruled that the former statute violated both the state Constitution and the Bill of Rights.
A similar case, People v. Dietze, struck down Section 240.25 dealing with language that was abusive or obscene with "the intent to harass, annoy, or alarm another person."
In the Golb case, the court held that both cases examined state statutes and said both failed to provide necessary limitations on the scope of communications that were criminally prosecuted.
"They're (prosecutors) skating on very thin constitutional ice, if any ice at all," Carter said of the arrest and prosecution of Long. "The First Amendment robustly protects Freedom of Speech, and the freedom to criticize government action. That would include criticizing the way that a school handles itself. Now, are some of her emails obnoxious? Perhaps. But the First Amendment very clearly, in my view, protects even obnoxious and, quite frankly, ugly speech, and unless speech fits into one of the very narrow few exemptions to the First Amendment, then it's going to be protected."
Carter said while we're talking about different statutes, they're essentially the same exact language that makes the harassment 2nd statute, when it involves prosecuting speech, is not likely to be found Constitutional if challenged.
Chain of Emails The trail of events that led to Long's charge began in the middle of September when Batavia Middle School Principal Nate Korzelius informed parents that the teacher originally assigned to teach Spanish would be taking a long-term leave of absence. He said the district conducted a comprehensive search to find a certified Spanish substitute but was unable to find a qualified teacher to take over the class.
Instead, he said, "We will utilize an online program called AcceleratedU. This program has been thoroughly vetted and widely used by students nationwide, demonstrating its effectiveness in enhancing students' learning experience."
He invited parents to contact school officials with any problems or concerns.
A couple of weeks later, according to emails obtained from the district through a Freedom of Information Law request by The Batavian, Kate Long did express her concerns.
She said AcceleratedU was not a "long-term solution" for a sub.
"I think by now, you know this based on the grades of students," she wrote in an email to school officials on Nov. 1.
"The school needs to start looking for a long-term sub and put some actual effort into it," she wrote. "I'm getting pretty sick of spending every single evening being my son's unpaid Spanish teacher. Oh yeah, and I don't get a break on my taxes, either."
Superintendent Jason Smith responded the next morning and wrote, "We fully understand that there have been concerns with this, and despite our efforts to find a sub, including speaking with three retired teachers, networking across several counties for candidates, we literally had no one apply or who was even interested. There is, in fact, a severe shortage of Spanish teachers."
He also said the district had contacted the software company several times with complaints about the program, and while the company responded, "We know issues remain."
Long was not satisfied with the response and began a series of emails, often snarky, accusing district officials of not caring, of not doing enough, and of her role as an "unpaid" teacher.
She sent 16 emails over eight days. (The charging documents say 12 emails over eight days, but The Batavian counted 16 emails sent by Long in response to its FOIL request.)
Long, who studied Spanish in college and told district officials she lived for a year with a Spanish-speaking family, had specific complaints about grammatical errors she found in the program.
On Nov. 3, the board's vice president, John Reigle, responded and again reiterated the efforts undertaken by the district to hire a Spanish sub and noted that Smith had replied to her email the day before and invited her to meet with school officials.
That night, she wrote district officials and board members and said, "Hope you all are sleeping very nicely every night. I'm not. Look forward to more messages every single day that you lack to get a Spanish teacher."
She wrote individually to Reigle and said, "What a very eloquent way to say, 'I don't care.' Thanks a lot. That was sarcasm. Look forward to more emails until you DO SOMETHING."
In all, she sent 11 emails on Nov. 3 alone, concluding one that read, "I guess it would have been in my best interest to say, 'I don't care,' like all of you."
In his sworn complaint, Board President John Marucci quoted from Long's second-to-last email, sent on Nov. 8 at 9:37 p.m.
"Fuck you all. You are all jokes. You call yourselves educators. You reap what you sow.”
Marucci wrote, in his statement, that Long was complaining about online learning of Spanish in her emails but also stated that she sent "these emails with no legitimate meaning or purpose to the point that we as the City of Batavia School Board of Education feel like we're are being harassed by Kate Long by her alarming and annoying emails. I would like to pursue any and all legal charges against Kate Long."
Political Speech Carter said Long's emails are political in nature, seeking correction to what she believes is a wrong perpetrated by a government body and is, therefore, protected speech.
"I think it's fair to say that is some of the most protected speech that there is," Carter said. "I'm not saying at some point, you can't have emails becoming harassment. But I think 16 emails over the course of eight days? I don't see how we've crossed that line. And I think courts are going to look at it very skeptically if she were indeed to be prosecuted."
The Batavian emailed several questions to District Attorney Kevin Finnell. We wanted to know if Batavia PD consulted with his office prior to the arrest of Long and if he had any Constitutional concerns about the case.
"Our office does not generally participate in the investigation of criminal matters," Finnell said. "While we remain available to consult with law enforcement during an investigation, my office did not offer any input or advice in this particular case. Even in cases where we do offer advice during an investigation, the choice of what offense(s) to charge is ultimately determined by law enforcement."
As for the Constitutional issue, Finnell said he and all of his ADAs are sworn to uphold the Constitution and are mindful of that in prosecuting every case.
In 2015, former District Attorney Lawrence Friedman, in response to the Golb ruling, sent a memo to local law enforcement warning the departments to no longer arrest people under the portion of the aggravated harassment law that was struck down. He did not raise concerns about the similar language contained in the harassment 2nd statute, and Finnell noted that there is, in fact, a difference between the statutes.
In the Dietz and Golb cases, Finnell said, the courts were reviewing statutes that dealt specifically with speech.
"The statute charged here is different in that it does not target pure speech but rather proscribes behavior," Finnell said. "It is a violation of Penal Law 240.26(3) to engage in a course of conduct or repeatedly commit acts which serve no legitimate purpose and which have the effect of alarming or seriously annoying the targeted individual. While that conduct could include speech, it is the act or conduct itself that constitutes a violation of law."
Carter said that calling Long's emails "conduct" bypasses the fact that she was engaging in speech, and no matter what other word you apply to it, whether you describe hitting the send button an email as "conduct," it's still speech.
"I don't think that's going to carry a lot of water," Carter said. "These are emails, and there's plenty of case law out there that talks about expressive conduct, which I don't even think this is, I mean, these are emails, this is communication, plain and simple. And I just don't think they're going to be able to convince a court, and quite frankly, the material that you sent that the district attorney shared, to my mind -- I just don't see this being prosecuted. I don't know how you could possibly criminalize 16 emails, even one that used a cuss word and be consistent with the First Amendment under a harassment statute, the bulk of which I think has been essentially struck down."
Cases that involve the Supreme Court upholding conduct as speech:
Stromberg v. California, which, in 1931, protected as free speech, the right to display a red flag;
United States v. O’Brien, which, in 1968, protected conduct that conveys a message in a case where a war protester burnt his draft card;
Texas v. Johnson, in 1989, protected flag burning as political expression.
District Response The Batavian also asked Superintendent Jason Smith and Board President John Marucci questions regarding the Constitutional issues raised by the case.
Both said they thought Long's emails crossed a line, and they turned to the police to help bring the communications to a halt. Smith said it is up to the justice system to decide whether Long's rights have been violated but that she was arrested within the scope of existing state law.
Marucci said he and the board respect the legal process and Constitutional rights but that they were facing an escalating concern and needed the assistance of the legal system, which will decide how best to deal with the case.
"Our decision was not about seeking charges against a citizen," Marucci said. "Instead, it was a necessary response to escalating inappropriate emails despite our attempts at dialogue. We value and address all respectful and constructive conversations with parents and community members. In this specific instance, it was essential for us to take a firm stance to protect our administration and staff from unnecessary harassment; we could not stand idly by, and therefore, we made the decisive choice to speak up and act in defense of our school community's well-being."
Smith said there are proper ways for residents to raise issues with the administration and school board, and the district respects the right of residents to disagree with their decisions. He doesn't believe, he said, that administrators and elected officials should necessarily be protected from annoying and upsetting speech but that this was an exceptional case. He said it is important to maintain a respectful and safe environment for everyone in the school community.
"While we fully support the right of individuals to ask questions and hold our school leadership accountable, this does not extend to the point of harassment or the use of inappropriate and inflammatory language," Smith said. "In this particular case, our decision to involve legal action was not taken lightly. It was a response to a pattern of communication from the parent in question that had escalated beyond acceptable norms of civil discourse. Our actions are in no way intended to infringe upon civil rights or to discourage constructive feedback and engagement from our community. Instead, they are a necessary step in protecting the well-being and safety of our school board members and staff and upholding a standard of respect and civility in our communications."
To read the full Q&A with both Smith and Marucci, click here.
Prior Restraint Among the documents obtained by The Batavian from the school district is a letter from Smith to Long. It is dated Nov. 10 and informs Long that the matter has been referred to Batavia PD. It's the first time, at least in the communications obtained by The Batavian, that anybody with the district notified Long that officials found her emails annoying.
In it, Smith informs Long that her email address has been blocked, prohibiting her from communicating with any other district official except Smith, that she is not to contact any other district employee, and that she may not use the district's app, Parent Square, to contact staff members.
Carter said this letter is also Constitutionally problematic, though the case law on the matter is not settled.
"I could see a strong argument that blocking a member from the public from being able to send emails to government officials would have First Amendment implications," Carter said.
A case against former President Donald Trump regarding his practice of blocking people on Twitter never made it to the Supreme Court because he left office before the matter was settled. A lower court had previously ruled against Trump, saying he couldn't block people from using a public forum to criticize him.
We couldn't find any cases dealing specifically with individual emails to the government or elected officials or using a government-run platform such as Parent Square.
The letter could potentially constitute "prior restraint." Courts have consistently held that the government cannot restrict speech and publication, regardless of any concern about future communication, that has not yet occurred.
It's this block to communication, along with Long's three children still attending school, that may be why her attorney, Tom Trbovich, from Buffalo, seems hesitant to fight a First Amendment case.
He said he would love to have a case he could take to the Supreme Court and win. It would help his career. But his first obligation is to his client and what is in the best interest of her and her family. He said while he's willing to do whatever his needed, it's also important to be realistic about the situation.
"As a secondary goal, I want to make sure that, you know, it'd be nice to make sure that relations and stuff like that with the families in the school workout, as well," Trbovich said after Long's initial court appearance, where she entered a not-guilty plea. "I want to make sure it's a win-win situation for everybody. And it's just going to take a little bit of time. I don't want to just do something quick in court. I want to do what's in the best interest of everybody."
Should public officials, especially elected officials, be seeking to have citizens/constituents arrested for expressing their concerns over the conduct of public business (in this case, how courses are taught)?
Provided that the dialogue is respectful, fair and reasonable, of course not. The Board and I regularly receive emails from parents in which the dialogue is cordial and respectful.
In this particular case, however, we responded to a situation that called for a firm response. The Board of Education received numerous emails in a very short period of time from Ms. Long with inappropriate and inflammatory language, including one that said, '"Fuck you all. You all are jokes. You call yourself educators. You reap what you sow," and we had no indication that they were going to cease until the issue was resolved to the complete satisfaction of Ms. Long—which we could not do after numerous attempts to find a qualified teacher. In addition, she explicitly indicated that the Board should "Look forward to more messages every single day..."
In Ms. Long’s case, she received two emails from our Board Vice President and two emails from me, so her concerns were in fact heard and responded to in a timely and respectful manner.
While Ms. Long initially stated her concerns in a respectful manner, they quickly escalated.
Are you concerned that her arrest may have violated her constitutional rights?
We brought the concerns to the attention of the Batavia Police Department, and an officer looked into it and determined that her behavior warranted the arrest.
It is the job of the courts and legislature to determine if these laws violate constitutional rights, and while some might disagree with the law’s reach, it continues to be a valid law in New York State.
As educators, are you concerned that her arrest sends the wrong message to students about civil rights?
No, there is no concern regarding the message sent to students about civil rights. This incident actually serves as an educational opportunity. We want our students to learn the importance of engaging in civil discourse in a respectful, reasonable, and fair manner.
Unfortunately, Ms. Long's approach did not reflect these values, which are essential in public education and have been upheld for decades. As an educator and leader, my role includes actively listening to all members of our community and striving to foster mutual understanding and respect.
What balance do you think should be struck in regards to a parent/citizen/constituent raising concerns and responding when they feel like their concerns are not being heard? Any suggestions for not restricting First Amendment rights while avoiding harassment (in the context of the question, in common use of the word, not the legal definition)?
There are channels that individuals can follow when addressing their concerns, which our District and Board of Education members consistently follow and encourage.
To be clear, Ms. Long’s concerns were heard, again as evidenced by my response and that of our Board Vice President. BMS Principal Nate Korzelius also corresponded with her.
In fact, due in part to her concerns, we course-corrected and made a few changes to the way the online Spanish class was being taught—changes which Ms. Long acknowledged and appreciated.
Should public officials be shielded from annoying and upsetting speech?
No, not at all, but when it crosses the line, as it did in Ms. Long’s case, there are laws on the books that are designed to prevent this type of inappropriate behavior, as well as the BCSD Code of Conduct, where parent behavior is also addressed.
Our Board of Education and our District communicate and listen to our families and students every single day. Is every single situation resolved to the satisfaction of all? Of course not—that is nearly impossible. And again, in Ms. Long’s case, we responded to her concerns, and addressed them to the best of our ability in a timely and respectful manner.
As a school district, we deeply value the rights of parents and community members to express their concerns and opinions. We understand and respect the importance of open dialogue and encourage our community to actively participate in discussions about our schools' operations and policies.
However, it is equally important to maintain a respectful and safe environment for everyone in our school community, including our board members and staff. While we fully support the right of individuals to ask questions and hold our school leadership accountable, this does not extend to the point of harassment or the use of inappropriate and inflammatory language.
In this particular case, our decision to involve legal action was not taken lightly. It was a response to a pattern of communication from the parent in question that had escalated beyond acceptable norms of civil discourse. Our actions are in no way intended to infringe upon civil rights or to discourage constructive feedback and engagement from our community. Instead, they are a necessary step in protecting the well-being and safety of our school board members and staff, and upholding a standard of respect and civility in our communications.
We remain committed to transparency and accountability in our operations and continue to welcome and value input from our community provided it is expressed in a manner that respects the dignity and rights of all individuals involved.
John Marucci:
Should public officials, especially elected officials, be seeking to have citizens/constituents arrested for expressing their concerns over the conduct of public business (in this case, how courses are taught)?
Our decision was not about seeking charges against a citizen. Instead, it was a necessary response to escalating inappropriate emails despite our attempts at dialogue.
We value and address all respectful and constructive conversations with parents and community members.
In this specific instance, it was essential for us to take a firm stance to protect our administration and staff from unnecessary harassment; we could not stand idly by, and therefore, we made the decisive choice to speak up and act in defense of our school community's well-being.
Are you concerned that her arrest may have violated her constitutional rights?
As a Board, we respect the legal process and constitutional rights. Our role was to report an escalating concern; the legal system, guided by New York State law, determines the rights and violations. We trust in this process and its ability to uphold the law and protect rights.
As educators, are you concerned that her arrest sends the wrong message to students about civil rights?
There's no concern about a wrong message on civil rights. This situation highlights the importance of respectful and civil discourse when expressing concerns.
Our entire community, including the Board, administration, teachers, staff, and parents, are working together to foster a thriving and supportive educational environment. To do this, we must engage in more constructive conversations.
What balance do you think should be struck in regards to a parent/citizen/constituent raising concerns and responding when they feel like their concerns are not being heard? Any suggestions for not restricting First Amendment rights while avoiding harassment (in the context of the question, in common use of the word, not the legal definition)?
We believe in open, respectful dialogue with all community members.
We always strive to balance the need for respectful communication with the right to express concerns, ensuring everyone is heard but within the bounds of civility.
Should public officials be shielded from annoying and upsetting speech?
Freedom of speech is a cornerstone of our community values, but it comes with the responsibility to maintain a respectful and safe environment.
While we listen and respond to all concerns, there is a line where speech becomes disruptive or harassing.
Our actions, in this case, were to protect the well-being of our school community and uphold a standard of respect and civility, not to suppress free speech or discourage community engagement.
Local news sources are vital to the safety, security and knowledge of our communities, never more so than in these difficult times. We encourage you to find a local news organization you trust and support it at: nytimes.com/supportlocaljournalism. #worldpressfreedomday
The New York Coalition For Open Government, (formerly known as the Buffalo Niagara Coalition for Open Government), calls upon local government officials to keep the public fully informed and engaged during these emergency times.
The New York Coalition For Open Government, is a nonprofit organization dedicated to addressing open government issues at the local and state level.
Due to the coronavirus pandemic public attendance at local government meetings has been banned.
Local governments across the state of New York are conducting public business by way of video meetings. In this time of emergency it is important that the public be kept fully informed as to the actions being taken by their elected officials and that citizens have the opportunity to provide their input at local government meetings.
Steps that local government officials can take to keep the public informed and involved are:
1) Posting meeting agendas and meeting documents online – Even before the Coronavirus many local governments were not posting meeting documents online for the public to see. The public should be able to view the same documents elected officials have before them at a meeting. The entire packet of information that elected officials have before them should be posted online several days before a meeting occurs. Watching elected officials conduct a meeting by video without being able to view meeting documents is unacceptable.
2) Meetings Should be Live Streamed and Recordings Posted Online – Government meetings are now being conducted by video which the public should be able to view live or to watch at a later date. Government websites should make it clear where the public has to go to watch meetings. The technology that is available through Zoom, Facebook, Skype, etc., is readily accessible and not difficult to manage.
3) Public Comments Should Be Solicited During Meetings: Prior to the Coronavirus most public bodies, but not all provided the opportunity for citizens to address agenda items and general community concerns. Public comments typically have a time limit of several minutes.
While meetings are being conducted through video, efforts should be made to obtain public comments in real time. Many local governments during this emergency situation have eliminated providing the public the opportunity to be heard, which is unacceptable.
Public comments can occur during a meeting in real time by:
Reading email submissions;
Providing a telephone number for comments to be made by telephone;
Just as elected officials appear by video so can members of the public;
Chat or Facebook comments.
4) Timely Posting of Meeting Minutes – Posting meeting minutes as soon as possible, after a meeting occurs is important for keeping the public informed. Minutes should ideally be posted within two weeks of a meeting occurring and definitely before the next meeting occurs.
“In the best of times ensuring that government operates in an open and transparent way is often difficult," said Paul Wolf, Esq., president of the New York Coalition For Open Government. "In an emergency situation it is even more important for local governments to do everything they can to provide information to the public and to hear from their citizens.”
For more information about the New York Coalition For Open Government, visit www.nyopengov.org.
Along with thousands of programs across the United States, Genesee Community College will recognize National Law Day tonight with an Alumni and Friends Reception with keynote speaker Rochester investigative reporter Gary Craig.
There will also be an Honor Society Induction Ceremony into the Lambda Epsilon Chi (LEX) Chapter of two GCC students.
National Law Day, celebrated annually on May 1, is designed to shed light on how laws protect liberties and the process by which the legal system strives to achieve justice.
Every year since 1958 the President of the United States has issued a Law Day Proclamation recognizing the importance of the rule of the law. This year’s theme is “Free Speech, Free Press, Free Society."
The reception will be held from 6 to 8 p.m. in the GCC William W. Stuart Forum. The public is welcome. It is free to attend.
Keynote speaker Craig is a member of the Democrat and Chronicle’s Watchdog team, and he focuses on public safety and criminal justice.
He has worked at Rochester newspapers since 1990, covering City Hall, politics and federal courts before joining the newspaper’s investigative team. He has won state and national investigative writing awards.
He is married with two daughters.
Craig is also the author of the 2017 book, "Seven Million: A Cop, a Priest, a Soldier for the IRA, and the Still-Unsolved Rochester Brink's Heist." His book is available on Amazon.
Two members from the graduating Class of 2019 will be inducted into GCC's chapter of the Lambda Chi (LEX) Honor Society, newly chartered at the college in 2018.They are Briona Siplin, of Rochester, and Arden M. Zavitz, of Medina. Membership in the Honor Society requires a 3.25 overall GPA and a 3.5 GPA specifically for Legal Specialty Courses.
The NYSSBA’s policy recommendation seems clear: “ … whenever communicating about issues related to the district, each board member should clearly state that he or she is communicating a personal opinion and is not speaking for the board.”
Somewhere along the line, some school districts have turned this into a restriction on speech even by individual board members.
The fact that individuals don’t give up their First Amendment rights when elected to any public office, including school boards, could perhaps be more clearly communicated, suggested Jay Worona, deputy executive director and general counsel for the NYSSBA.
“We’re the glad that you wrote the story,” Worona said, “it helps to remind us what the perspective of the press is related to covering their respective stories. Although board members, in the absence of being specifically authorized to speak on behalf of the board, may not do so (speak for the board). They certainly are not precluded from providing the press with their individual perspectives if they choose to do so.”
Further research by The Batavian on the topic also reveals the NYS Board of Education, as expressed in nearly a dozen rulings since 1978 by education commissioners, clearly supports the right of board members to speak freely. Ruling after ruling states, “Individual board members are entitled to express their views about issues concerning the district and engage in partisan activity, provided school district funds are not used.”
In our research, The Batavian also found another document from the NYSSBA that more clearly states that individual board members retain their free speech rights.
“Individual school board members and other school officials, acting in their personal capacity, have the same right as any other member of the community to express their views on public issues,” the document states.
Yet, in Genesee County, there are five school districts – Alexander, Byron-Bergen, Le Roy, Oakfield-Alabama, Pavilion – that have articulated policies prohibiting individual board members from publicly stating their views outside of board meetings.
After reading The Batavian's story, Rick Blum, policy director of the Reporters Committee for Freedom of the Press, said he was baffled that elected bodies had such rules and the elected officials accepted such restrictions.
"I don’t understand how elected officials are not allowed to talk to their constituents," Blum said. "It doesn't make sense to me. If you are an elected representative, elected to run and administer a school board or any government agency or public office, you need to do it in a representative, democratic way."
Since the story appeared Monday, The Batavian has spoken with one local school official about speech restrictions.
Alexander Superintendent Catherine Huber, Ed.D., said -- in a single statement -- that board members both can and can't speak freely: They can't share their personal views on district business; and, they have the ability to express opinions. (NOTE: We will have more from this 45-minute interview in later stories.)
"Recently we did a board retreat and the board established norms, which you also probably saw on our website, and one of the norms that the board established was that they would speak with one voice," Huber said. "They would speak with one voice on matters related to the school district.
"Board members individually don't have power on their own. They have power and they come together around the board table. That is not the same as their inability to express an opinion. Anybody has the ability to express an opinion. But in terms of commenting on district business, the board members only can speak with that same one voice as a board and not as individuals and they've designated the superintendent, as they probably have in most school districts, as the spokesperson for the district."
In the interview, we compared the "one voice" policy to Communist China. Huber's only response, "You have the policies and I know you have the policies from the other school districts as well."
When The Batavian pointed out such a policy negates dissent or individual views, Huber responded, "It's in keeping with our policy. An important thing to keep in mind, too, is that one of the central jobs of a Board of Education is that they get to approve a policy. So Boards of Education approve the policy that talks about things like who is the spokesperson for the board."
When The Batavian tried to talk with Alexander board members after an April 23 meeting, Huber stepped in, and board members reiterated, that only she could speak to reporters, a communication transaction Huber confirmed during Wednesday's interview.
After that encounter and subsequent communications with the district, The Batavian decided to survey the seven other school district's in the county expecting to find Alexander's policy was an anomaly. What we found is, it is not. While the policies of Batavia, Pembroke, and Elba are, arguably, the anomaly, there are five districts willing to openly state board members can't speak freely.
There does seem to be some confusion in Elba about the policy. While Superintendent Keith Palmer said, "Board members should emphasize to the media when asked to speak as a board member that they can only speak as a private citizen," which is in keeping with NYSSBA guidelines. When, however, The Batavian attempted to send interview questions to Elba's lone school board candidate, Candy Bezon, she declined to answer citing board policy.
The story about board member speech restrictions seemed to surprise NYSSBA's Worona. He indicated he didn't know such policies existed at school districts in New York.
The NYSSBA serves 660 school boards in New York and provides information, training and advice on matters affecting school boards to its members.
Worona said if there is a lack of clarity among school boards, it something NYSSBA should address.
"We want to make sure our school boards are judged by what they do not how they do it," Worona said.
It's reasonable for school boards to have a designated spokesperson, whether that's the board president or the superintendent, because a spokesperson is likely to be the person with the most knowledge and information about a particular topic, but a board designating a spokesperson should not be confused with the right of individual board members to answer questions, or for reporters to ask them.
Board members, of course, have a right to decline interview requests for their own personal reasons.
“Some board member who wishes not to speak the press may not do so, not to be difficult, but because they don’t feel comfortable with that media," Worona said.
Some school district and board policies may not necessarily reflect that nuance, Worona said.
There's no nuance, however, in the decisions issued by NYS Board of Education commissioners going back to 1978 when a commissioner ruled on the appeal of Rita Wolfe.
Wolfe was a Cold Spring Harbor School Board member who sent letters to residents of Cold Spring Harbor encouraging them to vote against a proposed school budget, an action the commissioner ruled was not illegal since Wolfe lobbied residents at her own expense.
"Although an individual board member or those members holding a minority view are not entitled to have their opinions published at the district's expense in board publications, this does not mean that the individual board member may not communicate his views at his own expense."
What an individual reporter can do about government policies that prohibit free speech by elected officials may be limited; though courts have found, such as in Chicago Reader v. Sheahan that government agencies can't argue that alternative newsgathering resources are available as an excuse for refusing direct access to a primary source. Yet this is what Attorney Jennifer Schwartzott -- who represents Alexander, Byron-Bergen, and Pembroke -- suggested when defending school districts' speech policies.
"Community members who are interested in what the local board members have to say can attend board meetings when the members discuss issues, share their opinions, and make decisions," Schwartzott said in response to questions emailed to her last week about individual board member rights.
Speech restrictions, however, abridge the rights most directly of school board members.
David C. Bloomfield, J.D., professor of Education Law at Brooklyn College and The CUNY Grad Center, and author of a book on education law written for community members who wish to better keep tabs on their local school boards, said board members who wish to challenge the speech restrictions might best be served by going to the NYSSBA to get information to bring back to their fellow board members. If necessary, however, they might need to file an application or appeal with the education commissioner.
"The new information (the decisions mentioned above that we found since the last story, with the help of Bloomfield) seals the deal," Bloomfield said. "Rather than speculating, it’s right there, spelled out in black and white. A district shouldn’t even discourage board members from speaking out. The First Amendment should be exercised."
There is no specific state law, such as the Freedom of Information Law or the Open Meetings Law, that addresses directly a board member's right to speak freely but such a law shouldn't be necessary, said Robert Freeman, director of the state's Committee On Open Government. "We have the First Amendment.
“If a board member is speaking out, it’s up to the board to take action, and I don’t think a board would, if they thought about this, because I think a board would recognize the right of a board member to speak out, absent not representing himself or herself, as speaking for the board,” Freeman said.
Later he added, “If a board member wants to speak out then I think he or she should and challenge the policy.”
If board members won't protect themselves, it will be up to voters to make changes, said the Reporters Committee policy Director Blum.
"I think the public is going to have to elect people who are going to change school board policy," Blum said.
Looks like Obama wants to squelch the voices of those among us who are forceful, unrelenting, and who display our convictionson the internet.
Truthfully thats misleading but he is appointing a man, Cass Sunstein, who has that view to the WH Office of Information and Regulatory Affaris. They oversee regulations throughout the government. He will have the power to enact his beliefs.
Often you hear people talk about how government should be run like a business, and it is a nice metaphor for reminding people that cost controls are important, and the books should be balanced, but the phrase masks a very important reality: Government is not a business.
In our talks with people around town about our belief in an open, transparent government, we are sometimes confronted with the idea that government should be run like a business.
Specifically, the City of Batavia should have only one spokes person, and that person is City Manager Jason Molino.
When we spoke to the City Council on this subject a couple of weeks ago, that was exactly the argument Councilman Bill Cox used in dismissing our request for more open access to the local government.
Jason is right not letting city employees speak with you or the other news media. He is dead right on that. There can be only one spokesman for an organization and all public agencies have that policy. In fact, most private companies have the same policy: one spokesman.
Both Philip Anselmo and I responded about how neither of us, in all of our journalistic experience, have ever dealt with a city government that prohibited employees from talking to the media.
It's just not normal.
But here's where the argument that government is like a business really breaks down:
A government can do things a business can't. A government can impose taxes; a government takes those taxes and decides how to spend those dollars in ways that can have profound impacts on citizens' lives; a government employs people who carry guns and can lock up citizens for reasons both great and small; a government can tell you where and how to hang a sign, what color to paint your house, what repairs must be made to your front porch, what new structures you can erect and where you can do it and what materials can be used; a government is responsible for running facilities -- such as parks -- for the public benefit.
In other words, a government has great power over, awesome responsibility for, and substantial accountability to every person within its jurisdiction.
Businesses, on the other hand, rely on competitive advantages and trade secrets to maintain profitability and ensure it can maintain and grow jobs for the people of a community. Without successful businesses, there would be no taxes to collect. That's why the freedom of information laws always enjoin government agencies to protect trade secrets when exposed during the transaction of business between a company and a government agency.
Can businesses be abusive? Sure, but there are also laws that regulate businesses (and though often changing or unevenly enforced for good or ill, they do exist), anti-trust laws to prevent any one business from becoming too powerful, and the free market to check and diminish a business's power.
So there really is no comparison between a government's obligation be open and transparent and a private (or even publicly held) company's right to keep some secrets.
In a well run government, free of malfeasance and derelictions, there should be no reason for any muzzles on any staff member, from the janitor on up to every department head.
We've also heard the argument -- "well, if you want to know something, just FOIL it."
FOIL stands for Freedom of Information Law (at the Federal level it's known as the Freedom of Information Act, or FOIA). Go read the opening section of FOIL. It's a beautiful thing. It makes our case for us.
The fact is, if a government agency was operating under the principles of FOIL, living within the spirit of the legislation instead insisting on following the letter of the law, there would never, ever be any reason for a private citizen or media representative to EVER file a formal FOIL request.
A truly open government would just hand over documents with a simple verbal request.
Open governments have nothing to hide and no secrets to keep except those specifically and explicitly enjoined to it by state or federal law.
We shouldn't even need legislation such as FOIL to find out what our government is up to, but the Legislature found it necessary to stop abuses by overzealous government administrators.
But there are three primary problems with FOIL.
A government agency has five days to respond to a FOIL request, and agencies that wish to delay release of information will take full advantage of this provision;
FOIL requests must be written in such a way as to be very specific about the records reqeuested -- write the request too broad, and a government agency can use the lack of specificity as an excuse not to include some documents; write it too narrowly and you might miss the most important documents;
FOIL doesn't cover human intelligence -- not everything you might want to find out about how your government is working is contained within a specific document. Some of it is only contained in the minds of the people who know what is going on. There is simply no substitute for talking with a person and asking questions.
With these liabilities, it is improper for a government agency to hide behind FOIL as a means of controlling the flow of information.
We don't think we're asking for much: We're just asking that the City of Batavia be run in an open, transparent manner so that taxpayers are well served. Until that happens, how can we trust that power isn't being abused and tax dollars are being well spent?
