STONEHAM - Town Counsel Robert Galvin last week disputed the notion that the Select Board's public comment protocols violate citizens' First Amendment Rights, but he also strongly cautioned town leaders against silencing anyone criticizing government officials or expressing unpopular viewpoints.
During a wild and at-times chaotic meeting in Town Hall last Thursday (see related story on A1), Galvin appeared before the Select Board in the hopes of settling outstanding legal questions about giving the general public an open forum to air concerns or discuss any other matter of importance.
The town attorney's appearance came after a divisive and unruly Select Board debate earlier this month over whether to move the regularly occurring public comment period to the tail end of each meeting agenda. During the course of that discussion, senior Select Board member Caroline Colarusso accused her peers of promulgating "unconstitutional" prohibitions on citizens' speech by enforcing clauses within the Select Board's policy manual.
Last week, Galvin refuted that suggestion, telling the town officials that he had personally reviewed the public comment protocols and checked footage of recent Select Board meetings to be sure no citizen's rights had been violated.
"It's my view that this policy is not unconstitutional in any way, shape, or form. I've never seen a situation where in it's implementation, people's rights were violated," the town lawyer asserted.
In a further defense of the Select Board's existing protocols, Galvin added that he had also double checked the town's policies in light of a relatively recent Middlesex Superior Court case involving the Natick School Committee.
The lawsuit was launched in April of 2018 after Natick mother Corey Spaulding, whose daughter committed suicide, tried to address the School Committee during its open "public speak" time about alleged bullying her daughter suffered as a student in the community's public education system.
While trying to address the elected officials, court documents explained, Spaulding was accused by the district's superintendent of spreading "unfettered lies" and then silenced by the school board's chairperson. When the concerned parent tried to continue speaking, school officials then threatened to have her removed from the building by local police.
On two other occasions between January and March of 2018, Spaulding and local parent Karin Sutter also tried to raise similar issues during the education board's public comment time, but they were similarly rebuked.
Middlesex Superior Court Judge Maynard Kirpalani later agreed the parents' free speech rights were violated, while further declaring the School Committee's "free speak" policy as fatally flawed by prohibiting "improper conduct and remarks" and "defamatory or abusive remarks".
Last week, Colarusso insisted that Stoneham's own public comment policy contains mirroring language, as in her view, one passage in the guidelines discourages citizens from openly criticizing government officials and town employees.
"How is that any different?" she challenged.
"When we hear things that are unpleasant to our ear, it's human nature to try to stop it. But the First Amendment says people can assemble and petition their government. That includes critical speech," Colarusso added. "What if someone stood up and said, 'that lazy person didn't pick up my trash?'"
The specific provision cited by Colarusso states that "citizens' input cannot be used by members of the public to attack, either professionally or personally, town officials or employees." Other portions of the protocols prohibit speakers from using the platform to endorse political candidates, advocate for ballot questions, or otherwise discuss "election issues".
According to Galvin, Colarusso is correct in that citizens retain broad rights to criticize their government and its officials. However, the board's policy references "attacks" upon such public servants, which the town attorney interpreted as meaning threatening commentary — whether that intimidation was overtly menacing or disguised.
"Sometimes, you can find some of the statements made to be upsetting or offensive. Unfortunately, that comes with the big bucks you make as a member of the Select Board," Galvin acknowledged. "Obviously, no one should stand at this podium and threaten anybody…That doesn't mean someone can't stand here and say, 'I have a problem with the DPW director, or the police chief [or any other town employee].'"
"The chair of your Select Board gets to decide that," continued the town counsel, responding to questions about who determines whether a citizen complaint has morphed into a prohibited "attack". "When I say that, I mean [you can silence someone] if they say something that's bordering on threatening."
According to the town lawyer, the Select Board must balance the public's free speech rights with town workers' own privacy and workplace protections. For those reasons, he believes the Select Board can call for an end to public comment time under the following circumstances:
• When a citizen attempts to discuss ongoing disciplinary or termination proceedings, which under the state's Open Meeting Law, can be discussed by government bodies behind closed doors in executive session;
• When a town worker is identified by name and accused of being engaged in criminal activity, as those kinds of allegations should be brought to and investigated by law enforcement;
• Instances where a speaker encourages a "riotous environment" or otherwise incites violence;
• and when sexually explicit comments are directed at any public official or member of the public.
Though listing instances where it would be appropriate for Select Board Chair Shelly MacNeill or her successors to discourage certain categories of public commentary, Galvin stressed that Stoneham's leaders had an obligation to protect and safeguard its citizens' free speech rights.
"My message to you tonight is don't stop constitutionally-protected speech, period," he said. "I take public comment and the ability of citizens to address your board very seriously."