Last week the Johnson County Commission adopted a new policy that raises serious 1st Amendment issues. It was added as an agenda item at the last minute and allows the county manager to “quarantine” electronic communications from anyone she deems to have been disruptive.
The resolution adopted administrative policy 104.110 against “disruptive electronic communications” by third parties allows County Manager Penny Postoak Ferguson to — at her discretion — “block,” “divert” or “quarantine” emails, phone calls or text messages “sent to a Johnson County Government telephone number or device provided by Johnson County Government.” The policy does make an exception for “comments on County social media sites or comments made through means specifically designated by the Board of County Commissioners for receiving public comments. “Electronic communication” also does not include 911 or 988 calls.”
However, the policy includes not just typical examples of “harassment” such as threats of violence, intimidation or unwanted sexual advances, but includes “hate speech” and “threats of legal action” as well.
The policy also includes “redundant communications” to a “County employee or official from an individual or group regarding issues that have been previously addressed and that have the purpose or effect of disrupting the effective and efficient operation of County government or employee productivity.”
‘Redundant communications’ apparently prompted policy
County Attorney Peg Trent, at the August 10 meeting where the policy was adopted, said the policy was prompted because of a series of emails which disrupted the Johnson County Sheriff’s Department’s dispatch services.
Trent said the issue began when the county intervened in the case of Johnson County Sheriff Calvin Hadyen vs. Leonid Khayet.
The lawsuit alleged that Khayet had called the sheriff’s office 503 times during the last four months of 2022, and sent 381 emails to 21 deputies during the same time frame. According to the Sunflower State Journal.
Trent said that in total there were over 28,000 emails sent on that one topic from September to March.
“It dealt with incessant emails to the point that employees were disrupting our dispatchers, and others in communication and operations,” Trent said in the meeting. “At that time, there … no real policy, if you will, non judicial, in order to have a tool available on how to handle something like this. This isn’t the first time that the county or other counties or other communities in Johnson County have seen this type of action, where an individual will get an answer, not like the answer, continue to go to this person to an employee and keep going and going to the point where a person can’t perform their job.”
Trent went on to cite several court cases which she said gave the county the authority to create the policy, but noted that the U.S. 10th Circuit Court of Appeals had stated that — while the government does not have “wide discretion” to regulate a “non-public forum,” such as email — “… at the same time it understood that there are certain situations,” Trent said.
“We can’t just put one size fits all that we’re going to stop and block and quarantine emails or phone calls or different things,” she said. “We have to look at each case to determine that we are doing it in a thoughtful and under the Constitution, whether we can block or quarantine that particular email in this policy and from the case law that was discussed.”
1st Amendment questions raised by public
While a flood of calls or emails — such as are alleged Khayet sent — can be an issue, the policy does not state what would be a trigger for “persistent emails.”
Shawnee resident Debbie Detmer raised that issue during public comment on the policy.
“Well, where is that in the First Amendment?,” Detmer asked. “If you press a point twice, is that persistent? Or is it redundant?”
Ben Hobert, of Westwood Hills, likewise raised the issue of what would trigger the policy and both noted that the commission has a history of silencing comment — by no longer streaming the public comment portion of commission meetings.
“This is particularly the case with the definition of redundant communications, which includes officials, not just employees and its scope and uses the amorphous term persistent as being objectionable,” Hobert said. “How many communications trigger that term policies have an ongoing impact on the public.”
KORA Concerns
The policy would also require that any quarantined emails be “periodically reviewed” by county legal staff for information relevant under the Kansas Open Records Act, or if there is a records request sent by someone under “quarantine.”
However, “periodic” is not defined in the policy, but KORA does require that any request be acknowledged within three business days.