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Matthew M. Hoffman

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Co-chair, Municipal & School Group

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Dissident Board Member Not Deprived of Civil Rights by Cold Shoulder of Majority

Matthew M. Hoffman, Esq., (412) 594-3910, mhoffman@tuckerlaw.com

Kathleen Wright Croft v. Donegal Township, 2021 WL 1110567 (W.D. Pa. 2021) (A township supervisor’s motion for a preliminary injunction against her fellow supervisors was denied upon finding that she was not deprived of access to information necessary to her role as an elected official).

 

Background

In 2017, Kathleen Croft was elected to a four-year term on the Board of Supervisors of Donegal Township. According to Croft, after the 2019 municipal election, three supervisors formed a “majority faction” of the five-member Board and, in conjunction with the attorney appointed by that group as Township solicitor, used their positions to oppress and discriminate against Croft for publicly disagreeing with them over issues of Township governance. In particular, Croft maintained that the Board majority intentionally singled her out by depriving her of information and that other supervisors discussed Township business among themselves outside of public meetings in order to deprive her of meaningful participation in Township affairs.

As a result, Croft filed a suit in federal court alleging that those persons (1) unlawfully retaliated against Croft for her outspoken views on local political matters, in violation of the First Amendment; (2) unlawfully discriminated against her because of her political views, in violation of the Fourteenth Amendment’s Equal Protection Clause; (3) unlawfully “deprived” her constituents of their votes by impeding Croft’s ability to perform her duties as an elected supervisor in violation of the Fourteenth Amendment’s Due Process Clause; (4) violated Pennsylvania’s Second-Class Township Code; and (5) violated Pennsylvania’s Sunshine Act. She then requested the court to enter a preliminary injunction effectively directing the majority faction to cease and desist the allegedly protracted and ongoing campaign of retaliation against Croft.

Discussion

The court denied Croft’s request for a preliminary injunction. The court began with an analysis of Croft’s First Amendment retaliation claim. The First Amendment prohibits retaliation against elected officials for speech pursuant to their official duties only whenever the retaliation interferes with their ability to adequately perform their elected duties. In this instance, although Croft did not always have access to information at the time and in the manner of her choosing, she was able, like the other supervisors, to go to the Township offices, inspect records, discuss issues with her constituents, communicate with Township employees, and voice her opinion at public meetings and in executive session. Additionally, with respect to negotiations between the Township and the Donegal Township Police Association regarding renewal of the police union contract, Croft wanted more regular and more detailed updates on the process, but, by the time the new contract came up for a vote in December 2020, she had been provided with the information she required and had sufficient time to study it before casting her vote. Consequently, the court concluded that Croft’s ability to perform her elected duties had not been hindered.

The court next reviewed and rejected Croft’s Equal Protection Clause claim that the majority’s practice of treating Croft differently was irrational and served no legitimate purpose. The court observed that it was not irrational that a politician would treat a political ally differently than a political opponent.

Lastly, the court found no basis to Croft’s Due Process Clause claim, concluding that there was no evidence that the majority’s alleged retaliatory conduct effectively denied Croft her vote.

Practical Advice

Many boards of school directors have adopted statement of operating principles to work as a group, respectful of individual opinions, and to acknowledge, value and respect other member’s opinions in an effort to collaborate and build team consensus in decision-making. Unfortunately, fulfillment of these principles is not universal among all school boards or individual school directors. A dysfunctional dynamic among school directors can impede effective decision-making and have negative effect among school district stakeholders.

The suit and decision in the Croft case demonstrates that all dissimilar treatment among a board of elected officials does not necessarily give rise to the proverbial “federal case.” However, the case is instructive in that court intervention in the supervisors’ affairs was avoided primarily by the circumstance that the dissident official was provided access to information, records and staff necessary to fulfilling her role as a supervisor. Even where disagreements exist among officials, those differences of opinion generally should not result in the withholding information or access from an official that is provided or available to others.

For more information on this or other legal topics, contact Matt Hoffman at mhoffman@tuckerlaw.com.

June 25, 2021

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