The Volokh Conspiracy

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Free Speech

School District Superintendent Sought Gag Order Against Critic


From yesterday's opinion in Cozad v. Ohio Elections Commission, decided by the Ohio Court of Appeals:

In September 2019, John M. Stafford, an elector and resident of the Bellbrook-Sugarcreek School District, filed with the commission a complaint against Citizens for Bellbrook-Sugarcreek Schools—a political action committee formed to promote the passage of a tax levy on the May 2019 primary and special elections ballot—its treasurer, Andy Lowrey, and its campaign chair, [Douglas] Cozad, who is also the Superintendent of the Bellbrook-Sugarcreek School District. Stafford alleged that the political action committee had violated Ohio election laws by failing to disclose in its campaign finance filings the value of in-kind contributions it had received from the school district…. [F]ollowing its preliminary review of Stafford's complaint, the commission concluded that there was probable cause, and scheduled the matter for a hearing.

In December 2019, several months before the scheduled hearing on Stafford's complaint, Cozad filed with the commission a motion for a protective order, pursuant to Civ.R. 26(C). Ostensibly to protect himself and the other respondents from annoyance, embarrassment, and oppression, Cozad requested an order broadly prohibiting Stafford from:

(1.) Issuing any public comments about this action in any form whatsoever, including, but not limited to social media (e.g. Facebook);

(2.) Disseminating, disclosing or commenting to the public any information, documents or other things gleaned through discovery or from subpoenas issued to third-parties;

(3.) Disseminating, disclosing or commenting to the public any information, documents or testimony from any depositions; and

(4.) Directly or indirectly attempting to influence the Ohio Elections Commission or public opinion regarding this action through any public comments, including, but not limited to, the use of social media (e.g. Facebook).

Cozad attached to his motion copies of posts from a Facebook page, allegedly run by Stafford, for "Vote NO On Bellbrook-Sugarcreek Schools Levy." The attached posts contain criticisms of the school district, its officials and attorneys (who now represent Cozad), and the levy. Cozad argued that Stafford had used the Facebook page to influence public opinion and the commission's decision-making process.

The commission's staff attorney, who has authority pursuant to Ohio Adm.Code 3517-1-09(B) to handle discovery disputes arising in matters before the commission, issued a letter denying Cozad's motion for a protective order. In the letter, the staff attorney stated: "The Commission cannot and in my experience does not consider matters that are not presented to it at the hearing before the Commission. The Commission will not consider information released in any other medium or format outside the hearing that might impact the Commission's consideration of that evidence." The staff attorney cautioned the parties and their attorneys to "refrain from any activity that will keep this Commission from having a proper and unbiased consideration of the evidence in this case."

Finally, the staff attorney stated that the commission would not impede rights guaranteed to Stafford by the First Amendment …. In other words, although the staff attorney declined to restrict Stafford's ability to speak or share information about the case, he assured the parties that statements made outside the confines of the hearing would not affect the commission's consideration.

Cozad then appealed, and the district court and court of appeals held that they lacked jurisdiction to review the denial of the protective order; but to me the noteworthy thing was that an elected official requested this sort of order in the first place, and that the Commission's staff attorney quite rightly rejected it. (Courts may indeed restrict litigants' ability to distribute material gleaned from coercive discovery processes, but items 1 and 4 of the proposed order would have clearly been unconstitutional.)

A follow-up, by the way, from Dayton 24/7 Now (Lydia Bice) in September (so a couple of years after the request for the order, which took the customary slow path going up through the two layers of appeals):

Just days before their trials were scheduled to begin, Bellbrook-Sugarcreek Schools Superintendent Doug Cozad and a former member of the school board accepted plea agreements….

"As you may know, I have been dealing with a situation in the courts surrounding the May 2019 school levy. I wanted to inform you that this morning I accepted an Alford Plea to one count of complicity of Dereliction of Duty, a second degree misdemeanor, with all other counts being dismissed," said Cozad in a statement on the Bellbrook-Sugarcreek School District website.

The other counts that were dismissed included three counts of dereliction of duty and four counts of illegal transaction of public funds.

Court documents from Xenia Municipal Court say Cozad authorized the use of public funds to pay for the printing and mailing of a district newsletter that included political endorsement of the Issue 4 levy in 2019.

"This plea allows me to maintain my innocence and, at the same time, put this situation behind me in order to move forward both personally and professionally. Even though I never personally profited from this, I will need to pay restitution for a portion of the postcard mailing pertaining to the May 2019 school levy of about $5,800 to the district," said Cozad.

Cozad remains the Superintendent of the Bellbrook Sugarcreek Schools.