The state Committee on Open Government on Monday questioned the legality and constitutionality of a proposed LIPA communications policy for authority trustees, which legislators already have denounced as an attempt to muzzle free speech.
The policy would, among other things, “encourage” board members to notify LIPA officials before they speak to the media or publicly, and refer media inquiries on matters of fact back to LIPA. When they criticize LIPA, they “should” make clear it’s their own opinion, not the authority’s.
Trustees on Wednesday are set to vote on the policy; eight of the nine board members already have signed a letter supporting it. Trustee Matthew Cordaro, an outspoken member of the board, said he would vote against it.
“Although this policy protects me in some ways because I have been threatened by board members on votes, I still feel on balance it is not justified and unnecessary,” he said.
The board’s governance committee will offer the policy as part of a broader set of guidelines, said committee chairman Mark Fischl. He called the rules “advisory,” and added they are “part of a bigger effort to reconfigure governance.”
But the Committee on Open Government’s executive director, Robert Freeman, in an advisory opinion Monday, questioned parts of the policy that require confidentiality from board members, and which could limit their ability to dissent or speak on matters before the board. “Having reviewed the policy, its legality is, in my view, questionable,” Freeman wrote.
He noted that “requiring advance approval before an employee could comment, is generally disfavored under First Amendment law because it chills potential speech before it happens.”
A contingent of state legislators agree. “I think no person who is appointed or elected in a government role should ever be muzzled from speaking to any person, whether government officials or the press,” State Sen. Kenneth LaValle (R-Port Jefferson) said.
Assemb. Steve Englebright (D-Setauket) said the rules set a “very bad precedent.”
“I think it’s bordering on paranoid to try to restrict speech and it’s certainly not consistent with what we in the Assembly want to see appointees do,” he said. “We want them to be responsible, yes, but also forthright and thoughtful.”