In following up on a post I published earlier today, I obtained from the county a copy of the complaint that the ACLU sent to Police Chief Darryl Perry and County Attorney Al Castillo regarding yesterday’s anti-drug rally, which the county officially cancelled but Councilman Mel Rapozo resurrected, supposedly in his capacity as a private citizen.
The ACLU’s specific concern was the potential use of public resources, including the time and labor of County employees, to express partisan political viewpoints. The Feb. 16 letter from legal director Lois K. Perrin also stated that the ACLU believes “Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation.”
The letter went on to ding the cops and County Prosecutor Shaylene Iseri-Carvalho, noting that their powers are limited and set forth by the County Charter:
Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education.
First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes…. The County of Kauai Charter similarly limits the authority of the Police. There is no statutory or other authority that grants the Police Department of [sic] the Prosecutor the power to expend public resources to educate the public on criminal justice issues.
The letter noted, “[i]t cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.” It then went on to cite Rees v. Carlisle to bolster the ACLU’s contention that “neither Kauai’s Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow’s Rally.”
Perrin cited a county press release that quoted Shaylene as saying, in opposition to bills pending before the Lege, “[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children” and stated “police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation.” Perrin then went on to write:
Such openly biased speech by public officials raises serious First Amendment issues.
Compelled support for speech by a public official using public funds is no less an offense to the First Amendment than compelled support for third-party speech…. The conduct in this case falls toward the end of the spectrum of biased advocacy. And nearly every court that has addressed this issue has found “the use of public funds for partisan campaign purposes improper, either on the ground that such use was not explicitly authorized or on the broader ground that such expenditures are never appropriate.
It would seem the presentation that Shaylene and deputy county attorney Justin Kollar (formerly with the prosecutor's office) made to the County Council during work hours would be similarly questionable, seeing as how it was intended for the same purpose: to persuade the Council and members of the public viewing the proceedings to oppose the legislation.