A national litigation firm sent a “demand letter” to Daviess County Public Schools Superintendent Charley Broughton, saying a pair of “whistleblowers” allege he violated Kentucky law with his remarks on Amendment 2 during the district’s opening day ceremonies. Broughton said the allegations are false, adding that a law firm previously informed him his comments were in line with state law and that the statewide advisory from the Attorney General regarding the issue came a week after DCPS opening day.
The letter came from the Liberty Justice Center, a Texas-based group that claims it is “a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect economic liberty, private property rights, free speech, and other fundamental rights.”
Citing a Messenger-Inquirer article about opening day ceremonies, the letter says Broughton and DCPS “held a rally with ‘thousands of teachers and staff members,’ during which you stated that Amendment 2 ‘will defund public schools,’ threatened that there would be ‘fewer [employees] in this building,’ and demeaned the prospect of school choice as ‘false and misleading.’”
The letter also claimed that the group was contacted by two DCPS staff members, “acting as whistleblowers, who informed us that you made explicit directives to staff, stating that they ‘need to vote no’ and prohibiting them from expressing alternative opinion on the subject.”
According to the letter, the staff members “have stated clearly to us that they felt threatened and coerced by your directives to them at the rally.”
Broughton’s response to those allegations was simple.
“That is a lie,” he said. “That is an absolute falsehood on every level. I never said that. I never said that at all.”
Broughton acknowledged he addressed Amendment 2, saying he was only presenting facts and not trying to influence anyone.
“I said based on the outcomes of other states that have enacted vouchers, it does defund, decrease the funding of public schools,” he said. “I mean, that’s as evident as evident gets. All you have to do is look at states that have enacted vouchers, period.”
Broughton said he respects the voting process and has no problem with anyone who wants to vote no. He said he also emphasized that feeling during his opening day remarks.
“I said [that on] November 5, all voting-eligible Kentuckians will have the opportunity to vote yes or no for changing the Kentucky Constitution to allow taxpayer money to fund vouchers for private schools,” Broughton said. “And then I went on to say ‘possible impacts based on outcomes from other states that have enacted vouchers.’ I put in there, ‘I respect each person’s right to vote as they believe is best.’ I went on to say, ‘I respect parents’ right to choose the school setting that they believe is best for their child. That’s what they should do.’”
This November, voters will decide whether to amend the state Constitution to allow state funds to be spent on non-public schools. While Amendment 2 will ask voters if they want to give the legislature the ability to fund non-public schools, such as charter and private schools, it does not address any specific policies or funding mechanisms.
House Majority Caucus Chair Suzanne Miles, the primary sponsor of House Bill 2, has consistently stressed the Amendment would not guarantee any certain plan, such as vouchers, would be enacted, and that instead the Amendment simply allows discussions to occur. Read our previous breakdown of the bill and the response from local legislators and school officials here.
Attorney General Russell Coleman released an advisory on August 13 to all public school districts in the Commonwealth “reminding them that public resources must not be used to campaign for or against the proposed constitutional amendments” on the ballot this November.
“The Office of the Attorney General is continuing to monitor reports from across the Commonwealth regarding this topic and is committed to ensuring that public officials observe the constitutional and statutory limitations prohibiting the use of public resources in connection with the pending ballot questions. The Office is prepared to take any necessary action within its authority to ensure these constitutional and statutory limitations are upheld,” Coleman wrote.
The full advisory points to KRS 65.013, which prohibits “the use of tax dollars to campaign on either side of a ballot question necessarily extends to the use of any public resources paid for by those tax dollars to campaign either in support of or in opposition to the question.” (Read the full advisory here.)
The letter also claims Broughton’s remarks were an “illegal use of Daviess County School District resources to advocate in opposition to Amendment 2.”
The Liberty Justice Center letter claims Broughton’s “use of district funds to promote a political position” violates that law. The letter also claims “conduct described by our whistleblowers also violated K.R.S. 121.310 — a criminal statute prohibiting the coercement of an employees’ vote.”
The group said they referred the matter to the District Attorney and Attorney General for further investigation. Broughton said neither he nor the district has been contacted by either office.
Owensboro Times sent a list of six questions to the Attorney General’s office, including asking if they were investigating the matter, the penalty for violating the statutes mentioned in the letter, and clarification on what can and cannot be said by school officials regarding Amendment 2.
A representative for the office did not answer the questions and instead pointed OT to the advisory as well as other public reporting by Louisville and Lexington outlets.
The Attorney General’s advisory came 7 days after the DCPS opening day ceremonies. Broughton said he would have prepared his remarks differently if the advisory had been out prior to August 6.
Specifically, Broughton noted he was operating under the legal interpretation of the Louisville firm of Wyatt, Tarrant & Combs regarding comments school officials were allowed to make regarding Amendment 2.
The law firm’s opinion addressed Kentucky School Boards Association policy 03.134 regarding political activities.
The policy prohibits school district employees “from promoting, organizing, or engaging in
‘political activities’ while performing their job duties or during the work day.”
The policy states that promoting or engaging in political activities includes, but is not limited to:
- Encouraging students to adopt or support a particular political position, party, or candidate.
- Using school property or materials to advance the support of a particular political position, party, or candidate.
The law firm’s opinion reads:
Lobbying on the issue of charter school funding, provided that such lobbying does not utilize school properties or materials, would not fall into either of those categories. And even if lobbying did utilize school property or materials, it would only be prohibited if it was “advanc[ing] the support of a particular political position, party, or candidate.” Opposing charter school funding is not a “party” or “candidate,” so it would only be prohibited by the policy if it was a “political position.” The policy itself says that communications approved by the superintendent concerning district needs, including, but not limited to, financial needs, are not “political positions.” Thus, opposing charter school funding relates to a district’s financial needs, so communications about that topic would not be considered “political positions” and are therefore not off-limits when it comes to using school property or materials.
Broughton reiterated that regardless, his comments were based in fact and not advocating for anyone to vote a certain way.
“I respect the democratic process fully,” he said. “I respect people’s opinions fully. I respect and will continue to have respect for anyone who says, ‘You know what, I’m voting yes for that.’ Hey, that’s your prerogative. That’s your right. That’s how it should be.”
Broughton continued, “What I do also believe is that it is important that people are educated on what that means. If they vote yes, what does that mean? If they vote no, what does that mean? It’s clear if you vote yes, it will give the legislators the ability to choose how they want to use taxpayer funds in terms of beyond what the Constitution already says for common schools, which means public schools.”
