TALLADEGA -- The Talladega City Board of Education’s resolution to essentially silence board member Mary McGhee would appear to be both unprecedented and possibly problematic legally.
The resolution, which was approved 4-1 Tuesday night, was brought before the board after McGhee had again made accusations of wrongdoing against Talladega High School Assistant Principal and athletic director Chucky Miller.
McGhee made similar accusations two years ago but failed to provide any evidence to back them up, and as a result, was censured by the rest of the body. She has made similar accusations recently, again without providing proof, which led Miller to threaten litigation.
The board agreed Tuesday to authorize attorney Charlie Gaines to write a letter apologizing to Miller, but McGhee refused to be a part of that letter.
Citing the requirement for order and decorum in Robert’s Rules of Order as well as the distinct possibility of further litigation, the board voted 4-1 to approve a resolution, “That Mrs. McGhee may not speak at a meeting of the board concerning any matter where she names, identifies or by inference identifies an individual unless such comments are made in executive session.”
The resolution also says McGee may not “question the character or work performance of any individual making a presentation to the board unless such statements are made in executive session,” and that she shall “make no public statements in her capacity as a member of this board that exposes this board or the district to potential financial liability.”
Violating these rules could result in her being excluded from the meeting.
Even the language within the resolution characterizes its action as “drastic, but all attempts by this board and others to have Mrs. McGhee exercise self-restraint and good boardsmanship have been futile.”
Jayne Williams, general counsel for the Alabama Association of School Boards, said she was not aware of the resolution before being asked about it Wednesday.
AASB Executive Director Sally Smith released a statement Wednesday afternoon saying, “We’ve reviewed the substance of the board’s resolution. We are not aware of other boards attempting this type of action and have some concerns about this resolution.
“While we appreciate the desire to have orderly board meetings, board members must always respect the rights of fellow elected officials to speak and even disagree with the majority. We welcome the opportunity to work with the entire board on ways to work together more effectively.”
Dennis Bailey, general counsel to the Alabama Press Association, said he was certain there was no precedent for this action by an elected body in Alabama and was not aware of any in the United States. He also had more specific concerns about the way the resolution was worded.
Restrictions on free speech need to be narrowly tailored to protect the public interest, Bailey said.
“You can’t incite a riot or shout ‘fire’ in a crowded theater,” he explained. “Saying that someone can’t do those things is not a violation of free speech. But the language saying she can’t name or identify by inference an individual is way too broad.
“Under that, she would not be able to name the superintendent by name or name a specific employee. If there is a matter of character or general reputation, there are exceptions to the open meetings law that cover that. They would be better off just using the language for the exceptions in the open meetings law.”
They could also accomplish a similar goal by just making the exceptions narrower and more specific, Bailey said.
In addition to the ban on publicly naming or identifying anyone, Bailey said the ban on statements exposing the board to potential financial liability was probably too vague to be enforceable.
“A prior restraint on free speech has to be narrowly tailored and serve a compelling need,” he said.
The closest case Bailey could find to the situation in Talladega was a 2014 case from the U.S. District Court in New Mexico. The plaintiff alleged that village officials violated his First Amendment rights by not placing him on the agenda, citing a rule forbidding speakers from making “any negative mention of any village personnel, staff or the governing body.”
The court found that “the governing body’s refusal to put the plaintiff on its agenda did not violate the First Amendment,” that the rule was not a prior restraint on speech and that meetings constituted a “limited public forum for First Amendment purposes.”
However, the ban on negative comments was a “facially invalid restraint on speech” and “was constitutionally overbroad.”
Of course, the specifics of the situation in Talladega would have to be determined by a court based on the specific facts, and because the resolution is specific to McGhee, only she would have standing to bring the suit that would make that determination, Bailey said.