Could voicing an opinion result in possible criminal trespass charges?

A Fayetteville woman’s legal demand letter on behalf of CASD might make you wonder…

March 5 – Valerie Jordan of Fayetteville could be facing criminal trespass charges if she steps foot on Chambersburg Area School District property, according to a letter she received from Appel, Yost & Zee on behalf of the Chambersburg School Board.

The letter was brought to the attention of News Talk 103.7FM and attorney Clint Barkdoll, Pat Ryan and Michele Jansen discussed the situation on the Big Talk this morning.

Jordan has been an outspoken citizen, willing to have her voice heard, on issues concerning school district spending and the shut down. See one of her letters from December 2020 here.

In addition to not being allowed on school property until further notice, the letter she received – from a law firm other than that of the district’s solicitor – is a cease and desist order on all communications with the district not in compliance with policy and procedure.

The looming question here is this:  Is this an attempt to suppress free speech or was there enough of a threat to warrant the letter?

“I saw in one of the emails she uncovered some COVID data from the school district that I felt very much undermined the district’s position that they could not reopen,” Barkdoll said. “I think she’s really trying to keep the board accountable. It’s really extraordinary for any public body to send a cease and desist, no trespass letter to someone. Particularly a resident of the district, a taxpayer.”

The crux of the situation is the decision to send the letter and, indeed, the communications that created the need to do so, all occurred behind closed doors – and it was legal. Legal deliberations are protected from the Freedom of Information Act and the Sunshine Act. It’s considered privileged information.

“We don’t know the full extent of communications,” Barkdoll noted. “There could be other communications we have not seen. We don’t know what we don’t know.”

There’s a suggestion here that Jordan’s behavior has been out-of-bounds, possibly even threatening.

And the idea of a threat brings a fascinating legal aspect that could make a whole lot of people incredibly uneasy – because a threat, defined legally, is based on someone’s feelings.

“Even if the language of the communication is not threatening, if there’s someone on that board or someone in the administration that says, ‘I felt that I was threatened by it,’ that may be enough to hold up in court as objectionable,” Barkdoll said.

The literal textbook example for legal scholars on the concept of threats is this: if a 5-foot tall person holds up his or her fists in front of your face and you laugh because you don’t feel even remotely threatened, that’s not an assault.

If, on the other hand, you know this 5-foot tall person to be a UFC or MMA fighter and he or she goes to fight you and you are scared because you know the background and you know they could do some damage, then it’s considered an assault.

So it really is about a person’s feelings.

“The charge would be based on what you, the would-be victim felt was going to happen,” Barkdoll explained. “And that same analogy could apply here.”

“I’m getting very, very nervous that somebody’s subjective feeling could be called a threat to the point of criminal abuse,” Jansen said.

In the letter, Jordan is advised that she cannot go on any school district property, but can “comport” herself to communicate with the board in the way the policies and procedures allow.

So once the district reopens, since the policies and procedures allow public comment at board meetings, Jordan would be “comporting” herself to said policies if she attended the meeting and spoke during the public comment.

However, at the same time, she’d be violating the letter because she would be setting foot on school district property and could be charged with criminal trespass.

Dizzy yet? Strap in.

“She cannot go to a sporting event without prior approval,” Jansen noted. “The fact that she could get in legal trouble if she would just go to a sporting event I think is a really strong response.”

This all begs the question, if someone felt threatened, wouldn’t he or she go to the police before engaging with a law firm with a cease and desist order?

“If there had been an explicit threat of harm, they likely could have gone to the police,” Barkdoll said. But, “they can make these decisions privately and we are not privy to knowing what all the back story would be.”

So what’s the recourse here? What can Jordan do?

She could file a challenge to have the cease and desist order lifted, which would result in a public hearing where each side would have to lay out their case. That would be expensive and time consuming.

“Private citizens and public entities do have the right to issue these no contact letters against someone,” Barkdoll said. “It puts Valerie in a difficult situation because even if she’s totally in the right, if she violates the directives in that letter, then that could be the basis for a criminal charge, such as a criminal trespass. So even if she totally disagrees with what’s in that letter, she nonetheless needs to be careful how she moves forward.”

If she went the route of a court filing, pointing out that no police reports were filed, no police had been contacted and if she wins that case, could the school district be on the hook to pay her legal fees?  

“She could make that request as part of a filing,” Barkdoll said. It’s somewhat unusual for that kind of relief to be granted, but it’s happened before is CASD cases.

“The other thing that I thought was bizarre about the letter is the school district has a full-time, in-house solicitor,” Barkdoll noted. “This letter came from an outside solicitor that they would have apparently paid a fee to generate this letter. It’s not clear to me why they would not have just done this through their solicitor.”

“And that would be something that this particular individual would probably want to send an email about but now she can’t,” Jansen pointed out.

What if Jordan adopted the idea of total transparency? Open up all correspondence, all emails and letters and put everything out for the public to see and say, show me the threat.

“I think she absolutely could do that,” Barkdoll said. “There’s no privilege here in the legal sense. If she has a database of all the communications, she could post those somewhere just like the district could. As we’re having this conversation, I imagine there’s someone in the district thinking, ‘well they don’t know about this email, they don’t know about this call.’ If that is true, we understand. Maybe there is some communication we’ve not seen that is more heated or more threatening. And if that’s the case maybe the district wants to come forward and release certain information. But short of that, Valerie, herself, would have the right to post all the back and forth communications and she could let people decide for themselves.”

Another approach would be to ask the board to rescind the letter. If someone on the board feels that the letter should be rescinded, they could put that on the agenda and take it to a vote.

“We don’t know if there’s more back story to this,” Barkdoll said. “Could there be some history between an administrator and her where they feel that these emails reached a point that they feel someone was threatened?”

“They certainly are thin-skinned,” Ryan said. “Today, Valerie and tomorrow if you have some type of opinion and feelings are hurt here…whew, awfully dangerous.”

Jansen added, “We always say people should be respectful when they’re trying to make their points. When you poke somebody in an emotional way, you’re not really getting through to them anyway. Depending on how bad the language is…we don’t know everything and we admit that, but I would like to know.”