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Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit

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Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit

Dec 08, 2023 | 9:19 pm ET
By Aaron Sanderford
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Judge urges Norfolk-area NRD board to try resolving censure sanctions, lawsuit
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The federal courthouse in Lincoln, Neb., is shown. (Aaron Sanderford/Nebraska Examiner)

LINCOLN — A legal fight over whether the Norfolk-area natural resources district went too far in punishing one of its board members for discussing a mistreatment complaint she had filed against a fellow board member reached a federal courtroom Friday.

U.S. District Judge John Gerrard
U.S. District Judge John Gerrard
(Courtesy of Harry Weddington)

But closing comments from U.S. District Judge John Gerrard overshadowed a two-hour hearing on whether the court should pause some censure-related sanctions against Lower Elkhorn Natural Resources District board member Melissa Temple. 

Gerrard told a divided courtroom and gallery of lawyers, NRD board members, friends, relatives and enemies with ties to the board that the people he remembered from his time living in northeast Nebraska would have tried to work things out sooner.

“We used to be civil and communicate with each other,” Gerrard said of his time in Norfolk. “I can’t help but ask, is there any way you can resolve this? Is this really all worth it? That’s a question that will have to be answered by all of you.” 

If the parties can’t agree, Gerrard announced that he would issue a ruling by year’s end on Temple’s motion seeking a preliminary injunction. He said he would rule on the constitutional issues. He gave Temple and the NRD until Dec. 20 to file legal briefs.

Free speech questions

Temple’s argument for a temporary injunction echoes much of her lawsuit against the NRD board. It argues the board’s sanctions against her limited her free speech rights and the rights and privileges enjoyed by any other elected NRD board member.

Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit
Norfolk-area Lower Elkhorn Natural Resources District board member Melissa Temple (Courtesy of Lower Elkhorn NRD)

The board censured and sanctioned Temple in August, stripping away her seats on any NRD subcommittees for a year and prohibiting her over the same span from being reimbursed for any board-related travel expenses outside of the 15 counties the NRD serves.

They did so after rejecting Temple’s complaint in April alleging fellow board member Scott Clausen had spoken condescendingly to women testifying to the board, dismissed public health threats to women and children and disparaged Temple’s intellect.

Clausen soon filed a complaint of his own against Temple. He alleged that she broke the same policy on board behavior and civility that Temple accused him of breaking. It criticized her for confirming her complaint to the Norfolk Daily News.

Lawsuit argues ‘chilling effect’

Temple’s lawsuit argues that the board retaliated against her for filing the complaint and confirming its contents to the newspaper. It is the first filed by a new First Amendment Clinic at the University of Nebraska-Lincoln’s College of Law.

Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit
Daniel Gutman of the University of Nebraska-Lincoln College of Law’s First Amendment Clinic.

UNL Law’s Daniel Gutman argued Friday that the board’s actions had “a chilling effect” on her ability to speak and act freely as a board member and could have a similar effect on others. She also now limits travel to conferences and pays for herself.

Gutman and a second Temple lawyer, UNL’s Sydney Hayes, said Temple is being treated differently than any other board member. The NRD’s new general manager, Brian Bruckner, acknowledged Temple was the first member he knew of who was not reimbursed.

Under questioning, Bruckner corrected his sworn statement alleging Temple had been allowed to attend three subcommittee meetings since being censured and sanctioned. Temple said she had been allowed and able to attend one, on finance, as an observer, not a participant. Bruckner said he was wrong. 

Temple testified that she attends conferences with other NRD board members in Lincoln to help learn about upcoming legislation before state lawmakers convene and help a statewide group of NRDs take positions on proposals. She said she joins tours of water basins to learn and prepare better for her job.

Her lawyers discussed the financial impact as well. They mentioned a recent NRD decision asking her to repay the district $564 for an out-of-district hotel stay that NRD staff had signed off on. She also was denied per diem payments, Gutman said.

Temple and others who signed sworn statements on her behalf explained that much of the board’s work gets done at the subcommittee level. Many proposals, including those recommending what the board should budget and spend, are shaped in the smaller groups, she said.

In one exchange that summed up his First Amendment case, Gutman asked Bruckner how Temple had violated the code of decorum. 

His answer: “I believe it was her choice of words.”

A letter Temple received from the NRD board chairman notifying her of the proposed sanctions criticized her judgment for using the term “misogyny” in her complaint.

NRD says Temple is still full member

NRD lawyer Don Blankenau of Lincoln argued in court Friday and in legal filings that Temple could still participate in every vote by the full board and that limiting her reimbursement for out-of-district travel was not harming her constituents.

Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit
Lower Elkhorn NRD board member Scott Clausen (Courtesy of Lower Elkhorn Natural Resources District)

He said the NRD’s past practice of approving reimbursement for travel by all previous board members does not bind it to approving the funds for Temple while she is sanctioned.

He argued that the federal and state constitutions and court cases have given legislative bodies like the NRD board wide latitude to police their own members. He said that Temple was “expressly disciplined for violating the code of decorum.”

“The board acted within the scope of its authority,” Blankenau said. “And no set of facts can change that.”

Reimbursement fight

Blankenau and the NRD’s legal team argued Temple had not been limited in any way that infringed her rights or the rights of her voters to be served. They also downplayed the importance of attending conferences and meetings out of district.

Judge urges Norfolk-area NRD board to try resolving sanctions, lawsuit
The Lower Elkhorn Natural Resources District in Norfolk is responsible for water and other natural resource decisions in all or part of 15 counties in northeast Nebraska. (Courtesy of Lower Elkhorn NRD)

At one point, Bruckner confirmed that seven of the board’s 15 members had not sought reimbursement in 2023 for any out-of-district travel. The NRD lawyer said Temple sought more reimbursements before being sanctioned than others. 

He also said that even if, as Temple alleged, she had not been told of subcommittee meeting times, she could request any materials subcommittee members receive. Bruckner testified that he would provide any member materials from subcommittees.

Temple testified that the board often started its regular meetings right after subcommittee meetings, leaving little time to request or review materials before the group votes. That limitation, Gutman argued, limits her ability to serve.