A member of Palomar Health's Board of Directors is suing the district for allegedly violating her First Amendment rights.
In the lawsuit filed Wednesday, director Laurie Edwards-Tate alleges the public health district tried to suppress her speech with a threat of sanctions after she spoke the media about the district's terms of use on its website.
In September, Voice of San Diego first reported that Palomar's website is requiring users to first agree to the terms of use before being able to access the site. David Loy, a First Amendment lawyer, told KPBS that potentially restricted public access to public information — especially since the terms also said users could not copy or disseminate public records, such as meeting minutes, financial reports and agendas.
That was the same same sentiment Edwards-Tate shared with Voice of San Diego.
"It was shocking to me, and I felt prohibited from its use, and I felt like it was a barrier for being able to access it.” Edwards-Tate told Voice of San Diego.
After KPBS' story aired, the district updated its copyright clause to allow for copying and distributing public records.
Edwards-Tate said at the time, she was speaking as a private citizen and not for the board. But after the story was published, she said she received an email from the district's lawyers informing her that she was being investigated because her comments "most likely ... violated both the Media Policy and Code of Conduct."
Palomar's Code of Conduct states that "(d)irectors may not knowingly disseminate false or misleading information, and must act promptly to correct erroneous communications for which they are responsible."
The Media Policy says that board members are encouraged to contact the communication department before speaking to the media on district's business.
Edwards-Tate's lawyer, Karin Sweigart, said the district's counsel’s Notice of Action email violated her client's freedom of speech.
“My fear is that this is something that they're gonna utilize as a sword in the future when there are greater problems that she wants to raise to a constituent," she said. "They're gonna say, 'Oh, you need to come make sure your message is coordinated with us prior to speaking' — that is just anathema of the First Amendment.”
In a statement, Palomar Health said it took the action because Edwards-Tate disseminated “false and misleading information.” She said the action was retaliatory.
“I understand it's not good for me not to have a duty of loyalty and care and try to degradate or misrepresent in a negative way the district, in any way," Edwards-Tate said. "The question would have to be asked, 'Why would they be offended by something as simple as what I actually said?'”
She said she chose to speak because of her concerns for her constituents. Edwards-Tate was reelected in 2022 for a second term.
“I feel an attack on me is almost an attack on the people that I serve,” she said.
In a statement, Palomar Health said there had been no restraint on Edwards-Tate's free speech.
"It is concerning that Director Edwards-Tate challenges a common, sensible policy for any organization — one that is especially important for Palomar with its responsibility to serve the public health," the statement said in part. "Director Edwards-Tate spoke freely to the media, then at the October 9th Board meeting, and now in her lawsuit."
First Amendment Coalition Legal Director David Loy said the Supreme Court has affirmed a public official’s First Amendment right to speak on public policy that they don’t agree with without fear of sanctions.
He is not a party to the case and is not commenting on its merits.
“The government does not get to be the ministry of truth," he said. "If the district believes that her statements were incorrect, it is free to issue its own statement and go to the press and explain why it believes her statements were incorrect.”
Director John Clark, who spoke to KPBS about Palomar’s terms of use, said he received the same email from the district’s lawyers as Edwards-Tate and is also considering his own legal action.
“It's intimidating to have the lawyers come after you when all you're doing is addressing your concerns and exercising your First Amendment rights as any elected official should do,” he said.
On Oct. 9, the board of directors authorized an investigation into both Edwards-Tate and Clark for possible sanction.
"The Board authorized an investigation into Director Clark’s conduct relating to a separate interview he provided to KPBS, in which he provided misleading information," Palomar's statement reads in part. "The Board noted that this was not Director Clark’s first violation of the Code of Conduct, and that the Board had previously voted No Confidence in Director Clark for such activities."
Clark said such votes of no confidence are meaningless and are meant to intimidate those who spoke out against board policies.
Palomar said Edwards-Tate's lawsuit is baseless and grounded in a misunderstanding of the district’s media policy. She asked for an emergency injunction to prevent the board from taking action against her at its November meeting, but a federal judge denied that request Thursday afternoon.
