Response to R-25-5-902

Dear fellow Commissioners:

Thank you for allowing me to weigh in on the proposed ethics rule that would restrict the Chairperson from publicly voicing opinions that differ from the final votes of this body unless certain disclosures are made. While I understand the intent may be to promote unity or avoid public confusion, I must express significant concern that this proposal would violate core constitutional principles and undermine the very purpose of elected representation.

1. First Amendment Concerns
At the heart of my objection is the clear tension this rule creates with the First Amendment of the U.S. Constitution. The right to free speech, especially political speech, is among the most protected forms of expression in American law. This protection does not vanish once a person is elected to public office. In fact, elected officials often enjoy enhanced protection when speaking on matters of public concern.

Whether or not I agree with the recent actions of the Chairperson of the Board of Education is not important. There is a difference between having a right to say something and whether it’s right to say something. We should allow unrestricted free speech of our elected officials. James Madison wrote, “The right of freely examining public characters and measures, and of free communication among the people thereon…has ever been justly deemed the only effectual guardian of every other right.” Madison believed that open discussion and critique of public officials and their actions is essential to protecting democracy and all other rights.
In Bond v. Floyd (1966), the Supreme Court ruled that a legislature could not exclude an elected representative for expressing controversial opinions about the Vietnam War, emphasizing that legislators must be given the widest latitude to express their views on issues of policy.

The proposed rule amounts to a content-based restriction on speech as it requires disclosures for certain speech (disagreement with a vote) based solely on its substance when the Chair represents the minority. Such restrictions are subject to strict scrutiny in constitutional law unless narrowly tailored to serve a compelling government interest. I do not believe this rule meets that standard.

2. Impact on Democratic Representation

Beyond legal concerns, this rule strikes at the heart of what it means to be a representative in a democratic system. Elected officials have a duty to speak openly and honestly with the people they serve, even when they find themselves in the minority. To set restrictions for a commissioner from explaining their vote or advocating for a different approach after the fact would diminish their ability to represent their constituents fully and transparently.

Democracy requires debate. The public benefits when it hears a range of views, including dissent. Preventing a commissioner from speaking openly about disagreements effectively silences a portion of the electorate that may not have been represented in the final vote, but whose views remain valid and important.

3. Practical Implications and Risks

How would this be implemented? Is there specific language that should be used? Implementing this rule would likely lead to confusion, resentment, and potentially legal challenges. It could also prevent important policy conversations from taking place in public where they belong.

Is the proverbial “slippery slope”? What about the next time a chair speaks publicly and doesn’t use language accepted by the majority of the commission? Is this the beginning of suppressing the speech of the minority in future rules?

Additionally, the rule could have a chilling effect on participation in public office. If individuals fear punishment or censure for expressing honest policy differences, we risk discouraging civic-minded people from serving altogether.

If an elected official makes poor decisions on their speech, allow the public to make that decision. Voters can be unforgiving employers.

4. Alternative Approaches

If the concern behind this proposal is that post-vote commentary might be misleading, undermine the commission’s credibility, or sow confusion, I believe we can address those issues in ways that do not violate free speech. For example, perhaps we should have “best practices” as annual training for commissioners to include such topics as:
• Encouraging commissioners to clarify when they are speaking in a personal capacity.
• Creating guidance on respectful post-vote commentary without enforcing a disclosures rule.
• Promoting consensus in messaging when appropriate, without requiring uniformity.

Such steps respect both institutional integrity and constitutional rights.

I respectfully request my fellow commissioners to reconsider the proposed rule. We can and should uphold standards of professionalism and mutual respect without infringing upon the fundamental rights of elected officials to speak on matters of public concern.

Thank you for your time and thoughtful consideration of this important matter.

Your public servant,
Shane Jackson
Knox County Commissioner