The Princeton Board of Education voted recently to adopt a new communications charter that designates the school board president as the spokesperson for the board, as does an already existing board policy. Other board members are not supposed to speak to the press about board matters. The charter says board members should not share confidential information with the public, but what exactly is confidential is not specified and appears to be broadly defined beyond state statutes.
“If there is any question whether information is confidential, board members will consult with the superintendent in advance,” reads the new charter, which also states that board members will serve as “ambassadors” for the district, “emphasizing the positive aspects of the district to the public.”
Planet Princeton contacted several legal experts over the last week about the communications charter, and they all said the provisions are problematic at best and that at least some provisions are unconstitutional.
Bruce Rosen, the top First Amendment lawyer in the state, said directing board members to only speak positively about the district is extremely misguided and clearly unconstitutional. “School board members are elected to represent their constituents, not to parrot what a majority of the board or its counsel says,” Rosen said. “If they are making this ‘guidance,’ that’s one thing and even so, no one can tell an elected member how to characterize the district.”
Rosen said privacy and confidentiality are trickier, and the charter is still problematic on those points. “Who is declaring issues private? Certainly personnel and legal matters should not be discussed. Ongoing budget discussions may be private. Are ideas that are thrown out private? This one is very blurry, and to the extent that it is not made clear what is private and why there is a good reason for that privacy, I don’t see how it can be enforced,” he said. “Plus there needs to be a clear due process procedure if the board believes its member has violated policy. And I believe this policy needs to be approved by the Department of Education because, in the end, they would be the ones who would adjudicate any violations.”
Rosen also said as duly elected officials, school board members cannot be muzzled. “Are they supposed to not campaign because they will be commenting on board policy? That’s also unconstitutional. It can be discouraged but not mandated,” he said.
“Outside of what information is deemed confidential by the Department of Education and OPRA, I don’t believe the board president or attorney can arbitrarily determine other subjects to be off limits,” Rosen said, adding that this does not mean board members should undermine initiatives that benefit the school community.
Communications Charter approval recap
The board voted 7-3 to approve the communications charter at a recent public meeting. Board members Deb Bronfeld, Dan Dart and Bill Hare voted against the policy. Board members Beth Behrend, Brian McDonald, Jessica Deutsch, Betsy Baglio, Greg Stankiewicz, Michele Tuck-Ponder, and new Cranbury board member Peter Katz voted in favor of the charter.
Dart said the board should be operating in a transparent manner. Behrend questioned how the charter pulls the board away from being transparent.
“It just looks like it is trying to reduce communications by individual board members,” Dart said. Behrend asked how that would be reducing transparency.
Dart also said the charter does not define what is confidential, and he questioned where state laws, including the Open Public Meetings Act and Open Public Records Act, fit into the policy.
School Board Attorney Stephen Fogarty said the state statutes referenced by Dart apply to public access, but that the board’s new communications charter applies to the governance of board members. “The Open Public Meetings Act established those matters that can be discussed in public and those matters that can be discussed in executive session…The issue with regard to confidentiality here is, if you are going to, as a board member, express yourself or communicate in some way, you have an obligation to ensure that the information that you are disclosing is factually correct, and also that you do not disclose anything of a private or confidential nature. That is very different from what governs our practices with regards to our meetings,” Fogarty said, adding that Dart was conflating the board communications policy with the Open Public Meetings Act and the Open Public Records Act.
“This policy is intended to make sure board members do not transgress those lines of what is private and confidential,” Fogarty said, adding that school board members should talk to the superintendent or board president if they are uncertain about content they can discuss. “Ultimately this is a safety net for board members,” Fogarty said.
Dart said he wanted to know what the board’s standards were for “private information.” He said he understands what confidentiality is as it is defined by state statutes. “It just seems to me this is vague enough,” Dart said. “We’ve already sworn a constitutional oath and signed on to the code of ethics. This is redundant.”
“When it comes to issues of the code of ethics and issues of what board members can disclose as part of their communications, I think redundancy is a good thing,” Fogarty said. “This policy and these guidelines really supplement the code of ethics. OPMA defines what you can communicate to a third party. The Open Public Meetings Act does not establish the restrictions or requirements for communications with each other .”
Behrend gave an example regarding the disclosure by the superintendent at the meeting that the air conditioning at Johnson Park Elementary School will be completed next summer. “Many of us knew about it. It’s not a piece of information that is necessarily covered by a contract, or is even deliberative, it’s just information that is sensitive that we are kind of thinking about as a board. When is the right time to disclose it? Let’s make sure the staff and parents hear about it first as a courtesy, and then we let Steve talk about it in our meeting tonight so it’s on tv and everyone can hear. That’s confidential information. We’re not hiding anything, we’re just thinking what the best way is to communicate with the public. But you can’t take these other statutes and lay it on top. When working together as a board, we need to be able to say — I’m supposed to speak to the public for the board, or Steve is speaking, and we need to think together about when we want to disclose things…to try to put these formal boxes on our information really limits what we’re able to do as a board. The Johnson Park thing is a good example.”
Hare asked what the penalty is for violating the charter and asked what a board member should do when a reporter calls seeking comment on a school board issue, for example, a comment expressing disappointment about a fact that was provided in a presentation at a board meeting about test scores. “What if I get a call from a reporter saying ‘hey what do you think about some aspect of the referendum,’ and I say ‘hey it’s great,'” Hare said.
“You’re not really supposed to be doing that,” Behrend said.
“What does it mean to be a spokesperson. If you’re’ elected to the board in Princeton you’re not allowed to talk to the media unless you’re’ the president?” Hare asked.
“We have board policies. The policy is that the president speaks for the board. There are ten of us. None of us ever speak for the board individually.,” Behrend said.
“But can you speak individually as yourself?” Hare asked.
“Yes, the code of ethics says you don’t lose your ability to speak as an individual,” Behrend said.
“So I can say without violating this that I’m excited about the air conditioners and the way they went in at Riverside. That was a well-done project. I can say that without violating this? ” Hare asked.
“If you’re speaking for yourself,” Tuck-Ponder said.
“As a board member,” Hare said.
“No,” Tuck-Ponder and Behrend said. “You happen to be a board member, but if you are being asked as an individual what your opinion is…” Tuck Ponder said.
“They might be asking me as a board member elected to the town, what my opinion is,” Hare said.
“If you clarify upfront — you just have to clarify that you are not speaking for the board as a whole. You are speaking as an individual who happens to be a member of the board,” Tuck-Ponder said.
Fogarty said board members have to stress to the press when they are speaking that they are only speaking as individual taxpayers, not as board members.
MacDonald asked if there is an exception if the board president delegates someone else to speak to the press. Fogarty said yes.
Dart said he was concerned about the potential for abuse and selective enforcement. “I’m afraid well someone says they don’t want information out there, let’s call it confidential for a few months,” Dart said.
Fogarty said the charter is about board member communications and has nothing to do with state statutes about public information.
Katz said board members are elected but are still “put in a box” and restricted regarding what they can say. “You do not have the freedom to just say whatever you want to say or do whatever you want to do. It seems strange because it seems conflicted, but it really isn’t,” he said. “The board acts as a board, as a unit. Each member does not have a right the entire board has.”
Planet Princeton reached out to a few board members for comment on the policy last week. Board members did not respond, or in some cases referred all questions to the board president, who did not respond to an email sent by Planet Princeton Monday seeking comment.
At the end of the public board meeting on Tuesday night, the board discussed revisiting wording in the charter about being positive, and policy committee members agreed to work on changing the language.
Some residents have called the board communication provisions of the charter a gag order meant to muzzle independent thinkers on the board who don’t agree with some board policies or actions. A group of residents has written a letter to the editor saying any restriction of free speech is a disservice to residents.
“School board members are not elected to represent the schools. They are elected to provide oversight for the community,” reads the letter. “Princeton’s Board of Education must be open and responsive both to its members and to the community. Provisions that in any way restrict free speech and discourse are unacceptable and must be repealed.”