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.

Jason Smith:

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)

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."

The Wolfe decision (which, given it is from 1978, is not available online) is cited in several subsequent commissioner decisions. Decisions that either site Wolfe or state the same principle include the application of Katrina Dinan, application of Rhea Vogel, the appeal of Kevin R. Allen, the appeal of Jeremy J. Krantz (which also notes that school district employees enjoy the same right to publicly express their personal views), the appeal of Guilaine Leger-Vargas, the appeal of Dione Goldin (which involves comments Goldin made to a newspaper reporter), the application of Kaila Eisenkraft, the appeal of Glen W. Johnson, the appeal of Vincent Wallace, and the application of Julianne C. Gabryel.

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.

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.

Earlier this week, when we did a post on this topic, John Roach left the following comment:

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?