Suppressing Dissent

Unconstitutional School Board Policies

Cannot Suppress Concerns

The outgoing leadership of the West Bend school board introduced two new policies on Monday that pretend to simply streamline how citizens, including district employees, can raise concerns with the school district. The combined policy shifts will concentrate power in the superintendent's office and severely limit what individual school board members can do when they are contacted with citizen concerns. They will fail to squelch dissent and criticism from those challenging the status quo.

The policies, if enacted, will clearly violate the First Amendment to the United States Constitution, the statutory authority and responsibility of school board members and the statutory ability of the West Bend Education Association to raise staff concerns directly with school board members. They will severely limit the ability of individual teachers and other staff to raise concerns as well.

The new policy proposals are the next attempt to curtail, if not eliminate, teacher and public criticism of administration policy and procedures. They are clearly intended to handcuff the new board after the April election and limit those who might disagree with the administration.

The proposed policies essentially direct all complaints/concerns to be shifted away from the Board and into an internal complaint management system designed to bury anyone who might dare to speak up. The potential for discipline against staff members who might go outside this chain of command is clear.

There are several problems with this system.

Public schools are governmental agencies exercising the public trust to see to the education of all our children with tax dollars provided to make it so. The public elects the school board to oversee the process, set budgets, approve expenditures and a host of other duties. They are ultimately responsible to the electorate for their performance.

The First Amendment to the U.S. Constitution allows all citizens to approach board members, individually and collectively, to "petition for the redress of grievances." This cannot legally be shifted away from the elected officials to an administrative functionary. Similarly, given their statutory oversight functions, individual board members have a duty to receive citizen suggestions and complaints and to investigate them in order to become fully informed and better able to perform their duties.

These two policy proposals also make some pretty glaring assumptions about the nature of complaints that may be brought. Certainly, there are some that could and should be resolved at the building supervisory level, like please fix my cracked classroom window. Concerns that involve board policy, budget, and other governance issues should not be referred in the first instance to the Superintendent, much less to lower level functionaries. Systemic concerns should go to the board directly and be put on the agenda for discussion in open public meetings, except where prohibited by law. That is what transparency looks like.

Finally, the staff complaint proposal ignores the constitutional reality that district employees are also citizens and entitled to the same level of access as everyone else to "petition" their elected officials. Those represented by a union, the WBEA, also have the legal right to address the board, individually and collectively, about concerns the union may have that cannot be denied by board policy. The litigation that will follow any attempt to discipline teachers for violating their policy will certainly cost the district thousands of dollars as it loses the latest attempt to squelch dissent battle.

Courts considering First Amendment cases look at any regulation or policy that might limit public access to elected officials with skepticism. If the new policies sweep protected activity and speech into their orbit along with properly limited activity and speech, they are considered “overbroad” and struck down. Limitations that infringe on protected speech and activity must do so in the least restrictive manner and be justified by a compelling governmental interest.

Representative democracy is a messy business. Making it harder for people to raise concerns with their elected officials and easier to discipline staff who dare to criticize is unacceptable. These policies strip too much power and accountability away from the school board and give too much power to the district administration to throttle criticism and dissent. They are classically “overbroad” under the First Amendment and should be rejected.

Waring R. Fincke is a retired attorney and Vice-Chair of the Democratic Party of Washington County.

We can do this.

Each time we come close to victory during the current resistance only to have it snatched away, it will be easy to give in to despair that we will never win. Take heart my friends from the lessons of history and remember Richard "dirty tricks" Nixon. It took resolve, determination, guts and a long view, but we saw him off into early retirement, ended the unjust war in Viet Nam, launched a new era of social justice, equality, feminism and stood tall for voting rights and civil liberties. We did it before, we can do it again.

Fired up my Twitter Feed

Had to follow many of the #altGovt feeds on Twitter. Found this one.

Follow me @waringfincke

Women March to Protect and Improve

Watch Women March

They will change the world

The largest worldwide demonstration in history took place a week ago. Women, multiple millions strong, organized and marched with their allies from across the gender spectrum on every continent to tell the world that the new era of authoritarian populism is unacceptable and will be resisted at every turn.

Reminiscent of marches for civil rights, women's' rights and demands for the end to the unjust war in Viet Nam in years gone by, this march clearly trumped Trump's feebly attended inaugural the day before and sent a message that women will not go back, not one step, to the male dominated days of the past.

Tone deaf Trump answered in a room full of old white males the next day by signing an Executive Order banning federal funding for any group any where on the planet that even offers information about abortion. This was followed by a press conference that declared war on journalists critical of Trump and his policies.

The battle is joined.

Women have stepped up and into the leadership of the new progressive movement. They have proclaimed enough of patriarchal patronage and greedy politics of convenience. We will gladly follow into a more empathetic, principled and practical movement that will work for true equality across the gender spectrum, respect for the inherent rights we all possess as human inhabitants of this planet to clean air and water, safe food, universal healthcare, universal suffrage and an end to violence as a path to conflict resolution.

The transition from marching to movement building will not be easy or smooth. But the path is clear and the goals are attainable as we focus on what we stand for, not merely rising up in opposition to what we do not like.

Watching the signage, listening to the speakers and seeing the colors of change evident in the marches, the unity of purpose was clear. We won't give up, we will be heard and we will protect what we have gained over the past eight years.

Trump's minions continue to play right into their own ultimate failure. Executive Orders may change certain policies, but they cannot create the "alternative" reality they so fervently desire. The early Orders, setting the stage for obliterating Obamacare, approving in principle the Keystone and DAPL pipelines, removing helpful information for veterans and LBGTQ Americans from the White House website, shutting down public comment White House phone lines, gagging staffers at agencies disfavored by the administration, building the wall, excluding some Muslim refugees and attacking journalists hell bent on holding Trump accountable all feed into public distrust of the new regime and help create whole new subset of people willing to rise up and resist.

It is not surprising that many of those who marched across the planet were first timers. Trump’s intolerance has created a whole new army of people who have reached the tipping point. They are now willing to put other parts of their lives on hold while they make calls to their members of congress and state legislators, sign up to work on local issues like saving public schools and local libraries, making sure people do not go hungry and have a place to sleep and stay warm, writing letters to the editor, attending town halls, voting and even running for public office.

As one who has been keeping the progressive fire burning for awhile in anticipation of the larger spark that gets people off their couches and away from their TVs, I am thrilled at the prospect of the new wave of enthusiasm the marches have engendered. I am proud of all of my sisters and their allies who stopped what they were doing to march and be seen with signs and tattoos and multi-colored hair while hugging each other with shared joy at their strength.

Yes, Trump has brought us a whole new world. He will temporarily
dismantle, disrupt and disarm some of what is good about America. It will not stand for long in the face of millions and millions of women and their allies who will be working tirelessly to challenge Trump's destruction and later to rebuild a better world from the ashes he leaves behind.

My favorite sign from the march proclaimed, "You know things are messed up when librarians march." So watch out Trump. I would not want to be the man who pissed off so many women.

Waring R. Fincke is a retired attorney and vice-chair of the Democratic Party of Washington County.

Thank You Conway

Thank you Conway. Welcome to the USA, land of Alt-Reality.

Trump will violate the Constitution on Day 1

Trump’s Business Interests

Will Violate the Constitution on January 20th

I must admit that as a constitutional lawyer for over 40 years, I never thought about Article 1, Section 9, Clause 8 of our founding document, the United States Constitution. I never had to until now.

It reads, “[n]o title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

Put simply, this provision is designed to keep foreign governments from meddling in our political affairs by bribing our elected officials, as in Mr. Trump, you owe me $1 million, I’ll forgive the debt if you _________________.

My conservative lawyer friends who believe we must take the words of the Constitution literally, without room for changing circumstances, are having difficulty with Donald Trump’s abject failure to follow this simple language with respect to his business holdings that spread across multiple foreign countries.

One pundit tried to side step the anti-bribery language of this clause by suggesting that it does not apply to presidents. Sorry, but the word “any” shoots that one down in a hurry.

In order to keep his international businesses running, they will have to do business with foreign states in order to operate. Trump will need import/export permits, occupancy permits, tax incentives, debt restructuring and all of the other parts of the “deals” he loves to make. At each and every turn, he will run afoul of this constitutional provision should he keep control of his assets. An “emolument” is a payment and that is a very broad term that can encompass not only monetary compensation but also any benefit obtained in exchange for some action.

Recognizing the legal thicket and potential fodder for those who oppose him, Trump has been advised to sell off his business holdings or, at the very least, to follow precedent set by several predecessors and place his business holdings in a “blind trust.” These trusts put control of the assets in the hands of a neutral third party to manage and control without any reporting to, input from or influence by the owner of the assets over the handling of the trust assets.

Trump just cannot let go of his financial empire. At his press bludgeoning this past Wednesday, he appeared with a table filled with file folders that were supposed to represent his holdings and what he planned to do with them. He said he would not sell or put these assets into a blind trust. Instead, he would turn operational control over his businesses to his sons to manage in his name until his term was over. This does not meet any reasonable definition of a “blind trust,” even if he does make good on his promise to “fire” them if they don’t do a great job.

Needless to say, the government’s own ethics watchdogs found Trump’s proposals wholly unsatisfactory. Ethics lawyers for past presidents from both political parties have chimed in, saying these proposals are not sufficient.

So what happens next?

Congress could give him a complete pass on the prohibitions in the Constitution. A simple majority resolution exempting Trump’s businesses from the anti-bribery bar might do the trick. While the GOP majorities in both house of Congress might be willing to do much of his bidding, I doubt they would feel comfortable going that far. I would have said there was no way Trump would get a pass on this, but then I remember the Citizens United case that opened the dark money flood into our political discourse and now I’m not so sure.

The U. S. Constitution is not self-executing. That means nothing happens unless one branch of the government or another does something to enforce its provisions. Certainly violation of the anti-bribery bar could be an impeachable offense, but only if Congress chooses to act should such a violation take place. Would Congressional Republicans take up articles of impeachment if Trump maintains control of his international empire? I doubt that they would, unless some foreign holder of Trump debt tries to use repayment as leverage to obtain some advantage.

I guess it will be up to us, remember “we, the people,” to demand that Trump sell or put his private business interests in a truly blind trust, and hold Congress accountable for failing to make sure it happens or it will just be Trump business as usual for the next four years.  

Waring R. Fincke is a retired attorney and Vice-Chair of the Democratic Party of Washington County.

For the New Year

A conversation with my grand daughter

"What was it like, Grandpa, back in the olden times when you were young?"

Well Lilly, there was strangeness in the land. My friends and I did not want to grow up like our parents. We lived under a repressive government engaged in an immoral war in Vietnam that forced many to kill yellow people because we lived in fear of communism. Black Power cries led to civil rights struggles throwing off some of the shackles of slavery, segregation and second class citizenship. Women were rising up to demand equality with men through passage of an Equal Rights Amendment. The sexual revolution took off with easy access to contraception and loosening standards of morality and propriety on everyone's TV. We experimented with pot, LSD, psychedelic mushrooms seeking deeper access to realms of consciousness. Higher education was cheap and excellent to help channel our passions.

"So, what did you do, Grandpa?"

I stretched myself into new ways of existing. I moved about the country fighting for civil rights and organizing in communities of color in the South. Later, I marched against the unjust war and contemplated strategies to avoid having to kill people who never harmed me in the name of corporate greed. I learned about dangers to our environment and what Native peoples believed about our interconnected mutual dependence with Mother Earth. I studied the law, figuring that I needed to know how the system worked and what the rules were if I was ever going to be able to change it. I decided that my life's work was to defend the defenseless, to protect individual liberty from governmental over reach and to protect our Mother Earth. I committed to trying to make the world a better place every chance I got. I met your grandma and she was involved in many of those same fights, plus some of her own. Through and with her, I joined the battle for equal rights for lesbians, bi-sexuals, gays, transgendered, queer and intersexed people. More recently, we've taken up the challenge of preserving and improving public education.

"How did it go, Grandpa?"

It still goes, Lilly. We are back to a repressive government bent upon turning back all the changes me and my friends were able to make. Our lives move in swings, like the pendulum of an old grandfather clock. Sometimes we win and sometimes we lose. It is up to each of us to push against the backward arc and make it go forward again. We are getting too old for the fight and keep looking for a new generation of warriors to continue the struggle.

"So what can I do, Grandpa?"

Learn what is right and wrong and keep it in your heart and head. Stand up when others are being treated badly and keep pushing back against injustice. Learn history well and listen to your elders who fought for justice, fairness, equality and freedom. Learn what they did when they took to the streets to stop an unjust war, to promote civil and human rights, to protect our Mother Earth, to stand up for those who are LBGTQI and fight for equal rights and reproductive freedom for women. Don't let them take your school, you have much to learn.

"But I am only a young girl and can't do those things yet."

Your time will come, Lilly. You just have to remember your Grandpa and Grandma, what they did and the stories they told. Your time will come.