Friday, March 1, 2024

H2GO could face First Amendment implications, admits staff gag order is ‘restrictive’

In addition to creating additional costs, one commissioner says H2GO's silencing order has created a "hostile workplace"

A silencing order passed by H2GO months ago could have "first amendment implications" according to its lawyer, Brian Edes. (Port City Daily photo / JOHANNA FEREBEE)
A silencing order passed by H2GO months ago could have “First Amendment implications” according to its lawyer, Brian Edes. (Port City Daily photo / JOHANNA FEREBEE)

LELAND—A gag order passed months ago could have First Amendment implications for H2GO Brunswick Regional Water and Sewer.

Though the sanitary district has admitted a silencing motion restricts staff, it still won’t lift the order.

RELATED: The lawyer answering all questions for H2GO won’t disclose how much it’s costing ratepayers

Passed three months ago, the gag order has lead to mounting legal costs, and could even have First Amendment implications.

Though lifting the silencing order was considered, no action will be taken to mitigate the legal cost it creates until H2GO’s meeting next month.

The background

For three months, H2GO has barred its staff from communicating to the public.

Passed on its Dec. 4 emergency meeting, commissioner Jeff Gerken introduced the following gag order:

“Do not discuss or allow other staff to discuss any matters of the sanitary district with the media and to direct all media inquiries regarding Brunswick Regional Water and Sewer H2GO to Commissioner Jeff Gerken.”

“There’s first amendment implications here,” —Brian Edes

Three days later Gerken passed an additional motion, further refining the initial Dec. 4 gag order:

“I request a motion to direct staff including the Executive Director to not communicate with individuals from the public or media regarding the pending lawsuits or legal matters or communicate with officials or representatives of the Town of Belville and that they shall direct all such inquiries to the legal counsel of Crossley, McIntosh, Collier, Hanley & Edes PLLC.”

Both motions passed and have not yet been rescinded. According to its own attorney, the open-ended nature of H2GO’s gag order on Dec. 4 motion could have First Amendment implications.

Right to speak?

Rodney McCoy introduced the motion to rescind the Dec. 4 staff silencing order, saying it had created a “hostile workplace.”

“I see no reason for it,” McCoy said.

Instead of lifting the order, Gerken asked to pass an additional, refined motion that would still restrict H2GO staff communication with the public regarding pending litigation. However, he did concede in admitting the gag order was restrictive.

“I will admit the wording in the motion that was passed Dec. 4 was perhaps a little restrictive,” Gerken said. Still, neither order was lifted Thursday evening.

“The resolution as written pertains to official statements on behalf of the district,” said H2GO’s attorney, Brian Edes. “The district does not restrict individuals from speaking their personal opinion.”

While the silencing orders still stand, Edes tried to clear the order’s language of First Amendment implications.

“There’s First Amendment implications here,” he said. “I want to make it clear and (attorney) Mr. (Stephen) Coble wants to make it clear that the district does not implicate the First Amendment on people’s personally.”

The cost of free speech

Since the motion passed, the restrictions have severely limited H2GO’s public information officer from performing his daily duties.

It left the job up to H2GO’s lawyers, Brian Edes of Crossley McIntosh & Collier and Stephen Coble of Coble Law Firm, PC, whose services cost the sanitary district at least $200 an hour.

Meanwhile, H2GO had a public information officer Tyler Wittkofsy on its payroll, costing at least an eighth of Edes’ minimum hourly rate.

Edes admitted that work he has completed was staff-oriented.

“Thus far I’ve responded on behalf of the district to four public records requests,” he said. “Three of them were really staff-oriented type questions.”

At halfway through the fiscal year, H2GO’s legal budget has already tripled. In total, H2GO has budgeted $220,000 toward legal fees.  An undisclosed portion of that budget has been attributed to Edes’ assumption of Wittkofsy’s job function.

Edes stated he was not instructed to replace Wittkofsy and did not intend to do so. He said reviewing information relayed to the public was typical and necessary in light of pending litigation.

Free to speak

Not all H2GO board members are at ease with its staff silencing order.

Commissioners McCoy and Ron Jenkins – both in favor of the highly-contended reverse osmosis plant – said H2GO staff should have the freedom to perform their job functions.

In contrast, commissioners Trudy Trombley and Gerken approve the order, citing a need to communicate with one voice.

Gerken was comfortable with mounting legal costs, at least in part due to a lawyer covering duties typically handled by H2GO’s public information officer. Trombley was not, but said the fees were necessary in order to reverse action taken by the previous board on Nov. 28.

Newly elected commissioner Bill Beer did not take a stance either way.

Legal bills still unclear

Though Port City Daily has requested itemized, legal invoice bills, Edes has cited North Carolina General Statute 132-1.1 as reasoning for not providing them to the public. The statute protects “attorney-client privilege” for at least three years.

Port City is seeking further disclosure from Edes on accounting bills that do not obstruct attorney-client privilege, including billed services for his work as a de facto public information officer.

Late Thursday, Edes offered to provide such bills in an email.

Johanna Ferebee can be reached at or @j__ferebee on Twitter

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