Elected officials are, naturally, sometimes at the center of conflict and division within their board. Conflict is to be expected. However, what happens when board members take action to freeze out a minority board member from information that he or she needs to do his or her respective job? The use of information-control tactics against minority members on a board, impeding their ability to receive that information necessary to perform his or her duties is problematic – and it may be unconstitutional.\
Elected officials have duty to be informed. Palm v.Centre Tp., 415 A.2d 990, 992 (Pa. Commw. Ct. 1980):
It is the duty of a school board member, a commissioner, a councilman, or a supervisor to be informed. Supervisors are not restricted to information furnished at a public meeting. A supervisor has the right to study, investigate, discuss and argue problems and issues prior to the public meeting at which he may vote. Nor is a supervisor restricted to communicating with the people he represents. He is not a judge. He can talk with interested parties as does any legislator.
This responsibility extends beyond the contours of the public meeting and what is discussed at those meetings.
Elected officials have protections under the First Amendment. The Third Circuit has historically recognized that a public official’s right to free speech under the First Amendment will be violated when the retaliatory conduct of her peers interferes with her ability to adequately perform her elected duties. See Werkheiser v. Pocono Tp., 780 F.3d. 172, 182 (3d Cir. 2015); Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006).
To avoid entering the territory of this kind of interference, everyone can play a role in ensuring the government functions adequately and that Board members’ rights, duties, and privileges are protected. Board division, when gone too far, can cross constitutional lines. To avoid walking that line, there are things that everyone can do to make for a well-functioning Board or meeting:
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Managers can stay neutral and ensure that every board member is kept up to date on significant municipal operations and projects.
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Solicitors can host a meeting with the board to educate the board on laws pertaining to their position, such as a municipal code and the Pennsylvania Sunshine Act.
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Board members can foster respect for fellow board members and learn how to communicate so that each board member can participate in healthy debate on contentious issues. Enacting policies related to meeting decorum can be helpful, but they need to be enforced evenhandedly.
For more tips for handling divisiveness among a board, see the December 2021 article on “Tips for Handling Board Conflicts” in the Pa Township News.
©2022 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 53
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