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Tread carefully

January 15, 2011
Cape Coral Daily Breeze

Just weeks after City Council debated a proposal to post the Ten Commandments at City Hall, another First Amendment controversy has cropped up in the Cape.

Councilmember Bill Deile wants Dave Montrose, a teacher who opines on a variety of subjects on his blog, Spotlight on Cape Coral, to "tone down his rhetoric" when it comes to issues involving the city.

Councilmember Deile, who also serves on the charter system's governing board, says that Mr. Montrose's postings violate two, possibly three, system provisions concerning appropriate speech in a non-instruction setting, specifically those that prohibit statements that are false or inaccurate, and those that are threatening, abusive or personally defaming of co-workers, administrators or system officials.

Mr. Montrose's political views could spill over into the classroom, either overtly or "subliminally" through body language, Councilman Deile maintains, adding it's not so much the criticism but Mr. Montrose's role as a teacher that is his primary concern.

Mr. Montrose, a former Breeze sports reporter who continues to provide freelance reports to area media outlets, says he keeps his personal views out of the classroom. He also says he is exercising his First Amendment rights when he comments on issues of public interest, which he does on his own time, using his own equipment.

It's an interesting clash, but first, some background.

Spotlight on Cape Coral covers a range of subjects, some political, some not. Among the posts are sports reports, links to print and broadcast news stories, information on community events and opinions on state and national issues.

The posts also includes polls - including one that asked, "What did you think of City Council's decision not to pursue Deile and John Sullivan's proposed settlement to their lawsuit," - and yes, critical commentary. Very critical commentary, including an opinion concerning City Manager Gary King's "gag order" on staff and another entitled "the many faces of Bill Deile."

Next, some back story. Dave Montrose lives in Deile's district, he has become politically involved, and has announced that he is considering a run this year for the District seat that Deile holds.

As to the controversy concerning the blog, it still would be easy to take the broad First Amendment defense approach and support Mr. Montrose's right to express his views - or run for office - while off the clock.

Rather than hit either of those softballs out of the park, we will, instead, offer some practical advice concerning a controversy that has already spilled over to chat radio.

One, as Mr. Deile himself points out, the city has parameters for political activity and speech.

Agree with them, say they impede free speech, those parameters apparently have not been violated.

According to e-mail correspondence between the city's charter school administrator and Councilmember Deile, Spotlight on Cape Coral is being monitored and thus far, Mr. Montrose has not crossed any policy lines.

For this reason, continued e-mails on the part of the council member are not needed and should be stopped lest they be construed as a violation of another kind - a violation of the city charter provision which expressly prohibits interference by elected officials into the day-to-day operations of the city, especially those that concern staff management.

Councilmember Deile's role as a member of the city's "school board" does not give him an exemption here, nor does the fact he has not asked for Montrose's termination.

Two, the city needs to realize that as a public employee, Mr. Montrose has greater free speech protections than those in the private sector.

As a municipal employee, Mr. Montrose is protected by the city's grievance policy and he also has redress through the state's Public Employee's Relations Commission, which has dealt with very similar free speech issues in the past.

A case in point for city consideration:

In a complaint filed on behalf of a Hillsborough County Sheriff's Office employee who was disciplined for violating department policy after referring to a supervisor as the "iceman" on a union blog while also saying that supervisor was "blowing smoke up the wazoo," PERC upheld that it was a protected action, that the employee could not be disciplined for posting the "critical" comments.

Meanwhile, PERC also determined there was no protection in another case involving e-mails weighing in on a pending union vote sent to the work accounts of on-duty employees.

Both parties should be aware of this distinction designed to balance constitutional issues with what Councilmember Deile has called "free speech consequences."

The school system administration should be allowed to continue to perform its role of seeing that legally defensible policy parameters are met while protections concerning free speech are not abridged.

It has tread carefully thus far - as should all parties embroiled in this increasingly heated public policy vs free speech debate.

- Breeze Newspapers editorial



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