"A lot of those policies are stupid," said Peter Scheer, executive director of the First Amendment Coalition.
Scheer, who has written for a number of prominent publications and often appears on news programs as an expert on free speech issues, was referring to a pair of rules which call upon board members to refrain from speaking ill of the board or district officials, even when they believe the board or district officials are in the wrong.
The first rule stipulates that trustees should "model behavior which will cause the board and the superintendent to be perceived as an effective and efficient leadership team." The second requires that board members ought to "support all decisions and policies of the board, whether those decisions and policies are made unanimously or by a majority of the board."
The wisdom and fairness of the rules were recently called into question at a district board meeting. "What if the board is ineffective and inefficient?" asked community member and lawyer Gary Wesley at the Oct. 3 board meeting.
At the meeting, Wesley spoke up in defense of trustee Steven Nelson, who was ultimately censured by the board for a laundry list of unprofessional behavior. While Wesley did not defend some of Nelson's more egregious actions — including an incident in which the trustee apparently screamed profanities in the district office — he did voice concern that the board was attempting to "shut up" a "watchdog" by censuring Nelson.
In a document which compiled many of Nelson's alleged transgressions, it was reported that he had "violated the obligation of board members to support decisions of the board majority." Additionally, in interviews with the Voice, and during the board's discussions in the lead up to Nelson's censure, several trustees said that he had acted inappropriately by expressing dissenting opinions to this newspaper and in other public forums.
In his comments to the district trustees on Oct. 3, Wesley said he believed it is the duty of all board members to speak up if they feel something is wrong. "They've added teeth that will bite any board member that speaks out," he told the Voice. "They've set a bad precedent."
Craig Goldman, superintendent of the district, said he doesn't see any problem with the rules. "The board believes it is important that it govern itself by a certain set of standards," Goldman said. "I appreciate that those standards include the expectation that district employees be treated with respect and that the decisions of the board are supported by other board members whether or not they agree with the decision."
Ellen Wheeler, president of the district board said she has the highest respect for Peter Scheer and Gary Wesley, but said she ultimately disagrees that the sections of the trustees code of conduct are stupid or set a bad precedent.
The code of conduct is a set of guidelines, Wheeler noted, and they do not infringe upon the First Amendment rights of any of the trustees, in her opinion.
Acknowledging that the entire discussion over the fairness and constitutionality of the code of conduct rules has emerged because of Nelson's censure, Wheeler emphasized that Nelson was not condemned for politely voicing his dissent.
"Steven Nelson wasn't censured for speaking out about things that he disagreed with on the whole," Wheeler said. "He was censured for his insulting, bullying behavior. That is different than First Amendment rights of being able to speak his mind. All of us are encouraged to speak our minds."
Indeed, there is a separate stipulation within the trustee code of conduct that encourages "the expression of divergent opinions by individual members of the board, the students, community and staff on all issues of concern."
It is true, Wheeler admitted, that Nelson was chastised for speaking out against decisions of the board. However, she said, that had more to do with the manner in which he voice his opinion, not that he publicly opposed the board.
"It's fine for him to have a healthy discussion with Craig Goldman or a healthy discussion at a board meeting where he shares his opinion," she said.
It would even be justifiable for him to explain to the local press why he opposed a certain board vote. But according to Wheeler, there were a number of times when Nelson disagreed with the board's decision where he repeatedly and sometimes offensively, expressed his dissatisfaction. Wheeler explained that there's a difference between explaining why you voted against something and repeatedly drilling that explanation into the ground. "That turns into not supporting the vote of the majority."
Scheer said that it is not uncommon for school boards to adopt policies that encourage or require board members to speak with one voice. Nor is it unconstitutional, he noted — so long as a board does not impose a severe punishment for violating the code of conduct, such as stripping a trustee of his or her post.
But that doesn't mean he supports such policies. When asked what he thought about the Mountain View Whisman code of conduct, he replied: "That strikes me as an extreme policy — a bad idea."
Such policies "do not advance the public interest," Scheer said.
Goldman said that he doesn't believe the board's bylaws make any attempt to stifle speech. According to him, encouraging "the expression of divergent opinions," while simultaneously asking that board members not speak out against board decisions is not contradictory.
"It's appropriate for board members to discuss issues in a robust manner during board meetings in a public forum. And to demonstrate our professional, respectful demeanor," he said. "I think the idea is that there is a time and place."
And according to Goldman, that time is in public meetings. Once a decision is made, however, a board member should be prepared to at least uphold the decision, even if he or she does not support it, he said.