U.S. Supreme Court Upholds Censuring Members of a Governing Body

One of the recurring questions we get here at MRSC is how to deal with a “rogue” member of a governing body. (Author’s note: perspective matters here. One person’s “rogue” colleague is another person’s champion, loyal opposition, honest broker, voice of the minority, or just someone that doesn’t agree with you). But at some point, the conduct of a member of a governing body can reach the point where it unreasonably obstructs the operation of the governing body or the organization. At that point, the other members of the governing body can (and arguably should) act.

This blog looks at a recent U.S. Supreme Court case (Houston Community College System v. Wilson) about the balance between the free speech rights of the elected official and the right of a governing body to, well, govern itself.

Summary of the Case

In Houston, the board of trustees of a community college took two separate actions in response to the conduct of one of its members, David Wilson. The first action was a reprimand. When that did not have desired effect, the board took a second action disqualifying Mr. Wilson from serving as an officer of the board and from travel at the board’s expense. Mr. Wilson sued, claiming these actions violated the member’s First Amendment right to free speech.

The trial court agreed with the board that there was no First Amendment claim, but that decision was reversed by the Fifth Circuit Court of Appeals. The case went to the U.S. Supreme Court (Court), which agreed with the trial court that there was no claim. First, the Court said that a censure by a governing body of one of its members which does not prevent that member from exercising the core responsibility of the office is not “materially adverse” to the censured member. Second (and to me more interesting), the court said that a censure is itself the collective speech of the other members of the governing body. So, to the extent that one member’s exercise of their free speech rights results in the other members exercising their free speech right by issuing a censure, there is no constitutional violation.

A Detailed Analysis

The Court made it clear that they were only addressing this narrow question: “Does Mr. Wilson possess an actionable First Amendment claim arising from the Board’s purely verbal censure?”

It first considered the historical test:

When faced with a dispute about the Constitution’s meaning or application, “[l]ong settled and established practice is a consideration of great weight.” The Pocket Veto Case, 279 U. S. 655, 689 (1929).

The Court noted that neither of the parties “has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment.”

After reviewing the history of governing bodies issuing censures from colonial times to the present, the Court concluded that the longstanding practice of a governing body censuring one of its members does not violate the First Amendment.

The Court then considered its own precedents and restated the test:

[A] plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” Nieves, 587 U. S., at ___ (slip op., at 5).

The Court said that the adverse action must be “material.” It must chill a person of ordinary firmness from engaging in future First Amendment activity, and it must consider the relationship between the speaker and retaliator, and the nature of the government action in question.

In this case the Court noted that Mr. Wilson was an elected official, as were the board members who voted to sanction Mr. Wilson. And as mentioned earlier, the Court emphasized that the censure was itself a form of speech. The Court said:

Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson’s colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to “examin[e] public characters and measures” through “free communication” may be no less than the “guardian of every other right.” Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process “‘makes it all the more imperative that they be allowed to freely express themselves.’” Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002).

Given these features of Mr. Wilson’s case, we do not see how the Board’s censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak.

Because everyone involved was an equal member, a verbal censure was not an adverse action in this case. But the Court cautioned that verbal reprimands could give rise to a First Amendment retaliation claim, saying,

It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms.

The Court also emphasized that the purely verbal censure and other actions did not exclude the plaintiff from performing the essential functions of their elected position, indicating that it would be possible for the board to go too far if the action interfered with the member’s essential functions.

How Does This Affect Local Governments?

For those of you that have stuck with this blog so far (or skipped over the detailed report), the practical application is simple in theory and incredibly hard in practice. Your council or board rules should have some kind of investigatory and discipline process that applies to the members (see these sample censure resolutions from Des Moines, Edmonds, Kennewick, and Yakima).

Having a process in place is easier than trying to agree on one when faced with a specific complaint that needs to be dealt with quickly. This process must provide due process to the member being disciplined, there should be a clear statement of the issue, and the member should be given a meaningful opportunity to respond. Talk to your agency attorney about whether you (and the accused member) want to discuss the charge in executive session or in an open session as allowed by RCW 42.30.110(1)(f).

Any discipline imposed by a governing body on one of its members must be imposed in an open session. The discipline may not have the practical effect of excluding that member from performing the essential functions of the position — for example, a member could be removed from leadership or committee positions, or funding for official travel or per diem (not required by statute) can be withdrawn — but the governing body cannot exclude a member from attending a meeting (unless they are actively creating a disturbance, but that’s another blog), from meeting with constituents, or from voting.

More challenging is the question of whether the governing body “should” discipline one of its members. Consider this: other than a recall by the voters, often the only way an elected official can be disciplined is by the other members of the governing body. (Some agencies adopt a “code of ethics” that can lead to discipline, but the ultimate decision to impose it eventually rests with the governing body). Also, consider the effect that member’s actions are having on the operation of the governing body or agency, and talk to your attorney or risk pool about whether those actions create liability for the agency.

For more reading on disciplining a member of a governing body see our previous materials:

• Sanctioning Rogue Board Members
• Expectations of Confidentiality and OPMA Executive Sessions
• Ethics Codes for Local Governments, Part 2: Processing Complaints, Imposing Discipline
• Ethics and Conflicts of Interest
• Council/Board of Commissioners Rules of Procedure

Additionally, eligible local government staff and elected officials may use our Ask MRSC inquiry service to get personalized guidance from one of our trusted attorneys, policy consultants, or finance experts.