Government's Frivolous, Retaliatory Demand for Critic's Business Records May Violate First Amendment

"When ordinary people without legal training receive a demand from a government agency to produce tax returns and evidence justifying their business activities, a natural reaction is some degree of apprehension and defensiveness. Such concern is sensible because the transaction costs of dealing with a government investigation are never zero."

From McGee v. Township of Conyngham, decided yesterday by the Third Circuit, in a nonprecedential opinion by Judge Kent Jordan, joined by Judges David Porter and Marjorie Rendell:

John McGee became suspicious that a Conyngham Township Supervisor was syphoning government money into her own pockets, so he requested information from the Township under Pennsylvania's Right-to-Know Law….

McGee is a businessman and landlord who has lived in the Township of Conyngham, Pennsylvania since 2002. In 2015, he became involved in Township politics, attending occasional meetings of the Board of Supervisors and speaking up about his concerns with the Township's housing code. In February of 2017, he grew suspicious of the Township's finances and submitted a Pennsylvania "Right-to-Know Request Form" to the Board, seeking, among other things, time records, payment records, daily schedules, and expense reimbursements made to the Township's Secretary and Supervisor, Linda Tarlecki. Tarlecki had been the Township's Secretary since 2006, prior to becoming a Supervisor. She was responsible for responding to Right-to-Know requests directed to the Township, and she provided McGee a partial response. Later, McGee sent a second request, again seeking Tarlecki's payroll and reimbursement information. McGee had also been asking questions about such records at Township meetings.

After receiving the second request, the Township sent a Right-To-Know request to McGee, seeking tax records for his businesses and receipts for repairs done to his rental properties. Tarlecki testified that she prepared and handed the request to McGee because she "got tired of getting a Right to Know off of him every time I was out of the office." She did not, however, "expect the [requested] documents to come back." The named requesters on the form were "Conyngham Township Authority and Conyngham Township."

When McGee received the Township's request, he did not respond, retain a lawyer, or contact the Township Board of Supervisors. And he had previously written the Township a letter in which he noted his understanding that the Right-to-Know Law allows taxpayers to request information pertaining to the operations of municipalities and state agencies. He now asserts, however, that he was not aware that the request for information could not be enforced against him, as an individual. Later, at a Township meeting, he asked the Supervisors why they wanted his personal and business information and they refused to explain. A reporter who had written critical articles about the Township Board also received a request from Tarlecki seeking information on the reporter's meetings with McGee.

Things soon broke McGee's way politically, and his suspicions of Tarlecki turned out to be justified. McGee was elected to the Board as a write-in candidate and Tarlecki was voted out in November 2017. After that, state police investigated Tarlecki and determined that she had stolen more than $180,000 from the Township. She was charged with various crimes….

McGee sued, and the Third Circuit allowed the First Amendment claim to go forward:

In order to prevail on a retaliation claim under the First Amendment, "a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request Tarlecki gave him.

The point of contention here is on the second of the three elements of the claim, namely, whether McGee adduced enough evidence to allow a rational jury to find that a "person of ordinary firmness" would have been deterred from criticizing the Township Board after receiving the Right-to-Know request that Tarlecki handed him. While the question is a close one, we are, when reviewing summary judgment, required to view the facts in the light most favorable to the non-moving party, McGee. Viewed through that prism, we conclude McGee came forward with enough evidence to withstand summary judgment.

In evaluating that second element, we have "required that the nature of the retaliatory acts … be more than de minimis or trivial[,]" meaning more than "criticism, false accusations, or verbal reprimands." At the same time, however, we have also emphasized that "the threshold" for establishing the second element "is 'very low.'" "[W]hether an act is retaliatory is an objective question," and we do not ask "whether the plaintiff [himself] was deterred."

In this instance, while it is true that Tarlecki had no legal grounds for giving McGee a request for his business information [given that Pennsylvania's Right-to-Know law only binds government agencies], she never acknowledged the lawlessness of her action, even after McGee inquired about the Right-to-Know request at a Township meeting. Instead, she brushed aside McGee's inquiry with the strange assertion that it was "none of his business" why she had delivered the Right-to-Know request. And the record does not reveal that anybody else suggested to McGee that the Right-to-Know request could be ignored.

Nor does the document itself give any hint of that. The header on the request says that it is from the "Pennsylvania Office of Open Records" and is a "Standard Right-To-Know Request Form." The request came in the name of the "Conyngham Township Authority and Conyngham Township," and the language of the document indicates that its recipient has been given an official and serious demand for information, as authorized by state law.

Moreover, the manner in which Tarlecki framed the Right-to-Know request and the information that she requested were designed to grab an ordinary person's attention. Whereas McGee's requests to the Township were made in his individual capacity, the request made back to him was addressed to him in his capacity as president of Center State Properties Inc. and MAK Property Management Inc. It focused on his business activity and thus targeted his livelihood.

When ordinary people without legal training receive a demand from a government agency to produce tax returns and evidence justifying their business activities, a natural reaction is some degree of apprehension and defensiveness. Such concern is sensible because the transaction costs of dealing with a government investigation are never zero. Even if one is unsure about his rights and obligations, he may well suspect that an investigatory demand is implicitly backed by the threat of further investigation, penalty, or legal process.

That kind of threat seems to be precisely what Tarlecki meant to convey, to stop McGee from digging into the Township's use of taxpayer resources. A reasonable jury could conclude that she wanted McGee to think twice about saying or doing anything that might displease Township officials. A threat like that might be particularly potent against someone like McGee, whose rental business in all probability requires permits, inspections, and other interactions with the local government. Viewed in the light most favorable to McGee, the evidence here would allow a jury to decide that Tarlecki's "retaliatory action [would be] sufficient to deter a person of ordinary firmness from exercising his constitutional rights." …