The New Mexico Foundation for Open Government has advised the Santa Fe Public Schools Board of Education that it does not have the right to stifle a citizen's public comment, as it did at a June 21 meeting.

In a five-page letter sent out July 29 (see below for full document), NM FOG Executive Director Sarah Welsh writes that the comments made, or attempted to be made, by parent Cate Moses were "precisely the type of input which should be allowed in a public comment period." Moses was gaveled down at the June 21 meeting by BoE President Barbara Gudwin when Moses tried to bring up questions about a report used by the board in its evaluation of Superintendent Bobbie Gutierrez. Gudwin said Moses' comments fell into the category of "personnel matters" and said the board's ground rules for public comment forbid discussion of personnel matters.

FOG's letter says that while BoE members could be held liable for discussing personnel matters publicly under some circumstances, they cannot be held liable for such statements when made by members of the public. A governmental body can place a time limit on public comments and disallow profane language, but "the First Amendment severely restricts the Board’s ability to pick and choose what speech it will allow during a public forum," Welsh writes. According to FOG, the board could be held liable for violating a member of the public's First Amendment right to free speech.

Gudwin tells SFR that she disagrees with FOG's assertion that Moses' rights were violated.

"I've already heard that opinion from a variety of people," Gudwin says. "It is an opinion—an opinion held by a number of people, but I think there is another opinion—the one I was working under, which was under the advisement of our attorney."

Gudwin says she forwarded the letter to SFPS counsel Tony Ortiz and expects the BoE to discuss the issue further.

"Different boards of education handle their public forum in different ways—some actually never have a public forum," Gudwin says. "I think there are options we can look at and ways of handling the public forum."

Ortiz backs Gudwin up, saying he believes she acted appropriately in attempting to silence Moses.

"If you're asking me if I believe the board president acted properly, the answer is yes," Ortiz says.

While calling FOG's perspective valuable and important for the BoE to consider, Ortiz says he believes FOG doesn't "have all the information."

"I believe FOG certainly has its perspective, but I believe it is one perspective in this process and I don't necessarily believe it's the pre-eminent entity with regard to the outlining of the board's rights and responsibilities," Ortiz says.

As far as FOG's suggestion that SFPS not attempt to create a restrictive public forum policy, Ortiz gives a hypothetical example of the harm that could result with an "anything goes" approach.

"Let's assume someone stands up at a board meeting and says, 'I am sick and tired of Johnny Smith and his disruptive behaviors, and I know his [Individual Education Plan - used for children with special needs] talks about the following medical concerns and the following medical conditions he has, and I don't think it's fair to the other kids.' Johnny Smith and his parents certainly have confidentiality rights for his medical record," Ortiz says. "Some people might think the school board has an obligation to not provide a forum for his confidentiality rights to be violated."

Welsh says she's never seen something like that happen.

"[Public forums] are what every public body in the state is doing now, and I'm not aware of any problems that have arisen from members of the public making statements that bring liability onto the board," Welsh says.

A situation that Ortiz says would fall under a "personnel" exemption, allowing the board to squelch it, would be if a member of the public stood up and started giving out an SFPS' employee's social security number.

"To censor public comment on a variety of issues because you're afraid that someone's social security number will get out is unconstitutional...wildly speculating about things that might happen is just unnecessary," Welsh says. "Not to mention that people have the right to speak about whatever they want."

It's clear where Moses stands.

"I’m with Welsh: The Board needs to make NO policy limiting the content of public speech," Moses writes SFR in an email. "Why would they even want to? At least two new Board members ran on a platform promising increased community input.  That appealed to voters.  The turnout in those elections was a record high; clearly voters wanted more input."

Moses says she is encouraging people to attend the next board meeting (tomorrow, 610 Alta Vista Street, 5:30 pm, bring a snack) to voice their objections to the possibility of BoE adopting a restrictive public comment policy.

"When you're elected to the school board, you're not elected to control all public dialogue about what goes on in the schools," Welsh says. "You're elected to represent the public and set policy. I don't see where this maniacal control of speech comes in. What authority do they have to tell people that they can or can't stand up in public and say something?"

Updated Aug 2 11:00 a.m.
The BoE's first reading of a new board policy titled "Public Participation at Board Meetings" is the first action item on the agenda for tonight's meeting, meaning it's the first thing that happens after the public forum.