Member Free Speech in Doubt

For whom does the bell toll? It tolls for we. It tolls for we the members. Whether ours is to be a cooperative that embraces free speech and democratic values or one that succumbs to the arbitrary whims of future boards or board presidents shall be determined by the tenacity and voice of the members. Except for one board member, Director Clement, the remaining board sat in stony silence on August 18 as Mr. Oakley essentially declared that he was the new SherPEC free speech zoneiff in town, empowered himself to change board policy and deem a member ineligible to speak.

A special called meeting notice of the PEC board of directors was issued today by the board president for 10am Monday, August 31 in the PEC board room in Johnson City. Member comments are on the agenda.

Sanitized though the agenda may appear, this meeting is about free speech at PEC. It is also about the limits of power granted to the board president. The meeting was demanded by at least four board members, alarmed by recent actions and statements by Mr. Oakley only two months into his tenure as board president. Under PEC bylaws, any four members are empowered to call a board meeting although such actions are rare. Among the items the board will review include the silencing of a member, Ernest Altgelt, who attempted to speak during the “member comments” portion of the August board meeting. Altgelt’s microphone was cut off by Mr. Oakley after uttering only a couple of sentences. He was then escorted from the room by a PEC security officer (see The Tale of Two Tapes, August 20, 2015…)

Perhaps the board will use this occasion to redeem itself. In hindsight, many members, including some board members, found the member comments episode to be a premeditated act of prior restraint aimed by Mr. Oakley at Mr. Altgelt’s right to speak. Oakley acknowledged as much in a letter he wrote to Milton Hawkins, saying, “Thanks for your comment. What you may not realize is that I have already heard the story he was telling, and I knew what the next sentence was going to be. Out of respect for the parties involved, I was not going to let that next sentiment occur.”

As a result of this incident, Mr. Oakley is under fire by some members for the shoddy treatment given to a fellow member as well as the unilateral manner in which Mr. Oakley changed a longstanding policy called, Decorum Policy, first enacted by the board in March, 2010. Some members see a predilection on the part of Mr. Oakley to exceed his authority.

Prior to the August meeting, Mr. Oakley and the cooperative’s outside General Counsel tinkered with the Rules of Decorum by adding language to a sign-in sheet that required members to speak “on matters that relate directly to a matter on the published agenda for the meeting” and that “speakers must stay within the bounds of appropriate personal conduct and respect for others as deemed by the board president”. Members who wished to speak were then required to sign the sheet essentially acknowledging agreement with the policy.

In defense of his actions published elsewhere, Mr. Oakley makes a habit of using the verb, “enact”, as if he were a one man legislature, observed Milton Hawkins.

This fiddling with the rules was clearly aimed at giving the board president added power to mute speech that he disliked or disagreed with. This policy change occurred without the knowledge or approval of the board. During a stern lecture to members prior to member comments, the changes were announced by Mr. Oakley as a fait accompli.Oakley

In these comments, Mr. Oakley opined, apparently in cahoots with the outside General counsel, that speaking by members before the board was “discretionary”, a “privilege”, “not a right”…under state or federal law or cooperative bylaws”.  Lawyers can argue things square or round and while there may be no constitutional First Amendment right to speak at corporate meetings and since this is not a governmental entity etc. etc., questions clearly remain. Is democratic member control not a  basic “cooperative principle”? Do board policies not have to take that into account? Might PEC not otherwise be breaching a contractual duty to “operate PEC on a cooperative nonprofit basis” found in our bylaws? Have cooperative bylaws not been held to be a contract between the co-op and its members?

Beyond all that, wouldn’t board members simply want to know what is on the mind of the members–even the ones who irk, irritate and otherwise bother us? Is the board president not confident enough in his own skin to derive sufficient power through the pec hecklerpower of patience and tolerance? And when a board president oversteps his bounds, where are the individual board members (who are supposed to defend the members) to call a halt to this?

Member comments are discretionary? A privilege? Really? In 2008, as part of the reforms undertaken by PEC to separate itself from 30 years of secret, crooked dealings under the reign of Mr. Fuelberg (now in jail for his crimes), former General Manager Juan Garza testified under oath before Congress.  Speaking for PEC, Garza made this statement before Sen. Jim Cooper’s committee,  tantamount to a promise: “…the monthly board meetings are held in PEC’s auditorium to allow for greater member participation, with time reserved on each agenda for member comments…”

Beyond this, other concerns over Mr. Oakley’s leadership will be addressed Monday, including certain public statements made by Mr. Oakley which run contrary to unanimously approved board policy. It is unclear how much of this meeting will be public and how much will be in executive session. “Legal Matters” is an all-encompassing executive session item that is easy for boards to abuse. I see no compelling reason to conduct most of Monday’s legal matters in executive session.

This blogger has no interest in parsing around the edges when it comes to free speech. PEC Truthwatch offers at least three actions the board should take MONDAY with respect to the “member comments” incident.

  1.  It must move to rescind the language on the “sign up sheet” until it is reviewed and authorized by the full board.
  2. The free and unfettered right of members to speak their mind on any topic they wish without any rules of prior restraint must be made as clear board policy. I hope a resolution to this effect is passed MONDAY. There are already laws in the United States that prohibit libel, slander and disorderly conduct and there is no need to include those items in this policy.
  3. The Board must add to the Member Bill of Rights a free speech paragraph (subject to member ratification next June) that memorializes this right so that no future board or presiding officer believes they have the right to take it away. If the board will not step forward to introduce such an item, then a member shall.
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6 thoughts on “Member Free Speech in Doubt

  1. Larry ‹

    I hope you¹re doing well.

    I was just looking at your PEC Truthwatch. Sorry, but I¹m an inveterate editor. Just for future reference, the object pronoun is ³us², not ³we². The bell tolls for us, and for us the members.

    Otherwise, carry on!

    Ross

    From: PEC TRUTHWATCH Reply-To: PEC TRUTHWATCH Date: Wednesday, August 26, 2015 at 6:08 PM To: Ross Pumfrey Subject: [New post] Member Free Speech in Doubt

    WordPress.com Larry Landaker posted: “For whom does the bell toll? It tolls for we. It tolls for we the members. Whether ours is to be a cooperative that embraces free speech and democratic values or one that succumbs to the arbitrary whims of future boards or board presidents shall be determ”

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    • Ross, I get the grammar but I wasn’t trying to be grammatically correct in this case–I was attempting a an inelegant play on words. The bell tolls for thee, of course but I was looking for a perhaps clumsy way to make it rhyme and selected the word “we”. I thought it worked but grammarians will have no problem finding additional issues with my writing–that is why I blog for free. All that said, glad to have you in here where speech flows freely…

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  2. Larry ‹

    There was a scene in the animated film Alladin in which the genie (voiced by Robin Williams) says something like, ³Well, I feel sheepish,² and then the animators turn him into a sheep for a couple of seconds.

    That¹s the way I feel.

    After I sent that ³editing² comment yesterday, I was thinking, “Larry wouldn¹t make a mistake like that. What was he doing?² It hit me today. The rest of the original quotation, of course, is ³it tolls for thee.² So you were creating an implicit rhyme.

    Please forgive me.

    Cheers,

    Ross

    From: PEC TRUTHWATCH Reply-To: PEC TRUTHWATCH Date: Wednesday, August 26, 2015 at 6:08 PM To: Ross Pumfrey Subject: [New post] Member Free Speech in Doubt

    WordPress.com Larry Landaker posted: “For whom does the bell toll? It tolls for we. It tolls for we the members. Whether ours is to be a cooperative that embraces free speech and democratic values or one that succumbs to the arbitrary whims of future boards or board presidents shall be determ”

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  3. Larry, here’s a quick note I sent to friends and members of the press along with a copy of your post “Member Free Speech in Doubt.”
    ********************
    Friends,

    Larry has committed truth here, and I almost missed it.

    I’m two days late in seeing, and sending, this (in case you missed it too), but even two days late, it’s still truth, rising again.

    Note especially Larry’s three suggested actions for the Board to take on Monday. The third item, adding to the Member Bill of Rights a right for owner-members to speak and publicly address the Board at any of its meetings, is essential, for what the Board gives in policy at one meeting it can take away at any subsequent meeting.

    I’ve attached a copy of the agenda. As of right now, Friday at 12:15 or so, no supporting materials, like proposed resolutions or policy changes, have been posted.

    And speaking of the right of owner-members to speak, note that the “Member Comments” portion of the meeting is scheduled for Noon (3 minute limitation), while the meeting is set to begin at 10:00 a.m., and the first item on the agenda, after it is adopted, is “Discussion/Action Regarding Decorum Policy and Rights of Members to Speak.” Were I a director, I think I would want to hear from the owners of the cooperative before I took action on a matter of this importance. (I notice that a revision of the published agenda allows for a change in the order of topics, so perhaps the Board will listen before acting. We can hope.)

    Milton

    *********************
    And Larry, regarding the need to allow speakers some leeway (within the bounds of decorum, of course) in addressing PEC matters of concern to them, we might heed some words of Thomas Jefferson: “I would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.” Surely the directors can stand three minutes of boredom, given what we often have to suffer through at their meetings

    To Archibald Stuart, Philadelphia, December 23, 1791.
    Cited in Thomas Jefferson (2002). “1791”. in Jerry Holmes. Thomas Jefferson: A Chronology of His Thoughts. Rowman & Littlefield. pp. p. 128. I

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  4. Larry,

    A Question Regarding the Import of the Terms “Allotted Time” and “Additional Time” in the PEC Decorum Policy

    Because you’ve been following this matter of an owner-member’s right to address the Board in public at Board meetings, and owner-member Ernest Altgelt’s having been denied that right by Judge Oakley, county judge of Burnet County, you know that one of Oakley’s defenses has been his assertion that the other directors (or at least four of them) could have reversed his decision to cut Ernest Altgelt’s comments off and countermanded his order to Randy Holland, the Johnson City chief of police, to remove Ernest from the meeting.

    But it turns out, I think, that the applicable provision of the PEC Decorum Policy is not all that clear. Here is what it says now, in relevant part:

    2.4.All Participants wishing to address the Board during the designated portion of a
    Board meeting shall sign a registry identifying themselves prior to speaking, and
    shall open their remarks by stating their name and whether they are a
    Cooperative Member. Time allotted by the Board for each speaker cannot be
    shared or allotted with other speakers. The allotted time shall include and
    commence from the beginning of the speaker’s remarks and include any time
    that passes during questioning or colloquy between the speaker and the Board.
    Additional time may be granted to a person by the Board President, or upon a
    majority vote of the Board.

    Note that the majority vote referenced above is limited to the granting of “[a]dditional time,” not to the granting of any time at all, as would be necessary were the presiding officer to cut an owner-member’s comments at the very beginning of the three-minute period allowed, as was the case with the silencing of Ernest Altgelt.

    “Additional time” could be construed as time beyond three minutes (or whatever the normal limit might be).

    I’d suggest that the intent of the provision be clarified, with language clearly indicating that a majority of the Board may overrule the presiding officer’s decision to silence a speaker and instead give the person cut off an opportunity to speak for a certain amount of time.

    Given what we’ve seen of the behavior of some of these our elected officials, we need to protect our rights in every way we can.

    Best regards,

    Milton

    PS: I’m aware that I’m probably trying your patience with these messages, but I truly feel that we are at a critical juncture here, with much at stake. Thanks for your consideration!

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    • I don’t like to see things made more complicated than they need to be. Speakers ought to have the right to the three uninterrupted minutes to say what they want. Period. If they cry “fire in the theater” and there is none, they could be prosecuted civilly or criminally for any injuries they cause. The same is true for a libelous attack. Speakers carry a burden over the words they utter. But the minute we begin to put restrictions on free speech is the minute it becomes subject to interpretation and ceases to be free. With respect to the “right” to speak, the lesson learned this week is that the right to speak should be part of PEC’s written policy as well as the Member Bill of Rights. As for Oakley’s defense that four board members could have overruled his actions, he is correct. I believe, to the board’s credit, they are in the process of doing that now–albeit late.

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