Could Wilmington’s Emergency Management Coordinator face consequences for protesting coronavirus-related requirements?

WILMINGTON, N.C. (WECT) – Where does the right to free speech end? While the constitution grants all the right to free speech, it does not protect anyone from any potential consequences of that speech.

The City of Wilmington’s Emergency Management Coordinator Natosha Tew has repeatedly spoken out against vaccines, masks, and more hot-button issues at New Hanover County Board of Education meetings. On at least two occasions, deputies have removed Tew from meetings, not based on the content of her speech, but for violating rules of decorum set by the Board of Education.

Despite speaking on school board policies, they closely align with city policies that were enacted during the height of the pandemic.

For example, Tew was removed from a NHC Board of Education meeting in February for going past her allocated speaking time.

While her removal might not constitute a punishable offense in the eyes of the City, the content of her speech could.

“Mandating products for emergency use authorization violates federal law. All COVID vaccines, COVID PCR tests and antigen tests, and masks are merely emergency authorized, not approved by the federal government,” Tew said at the meeting.

These statements are not only misleading and inaccurate, they could undermine the efforts the City of Wilmington makes to ensure the safety of its citizens during emergencies — which is a role Tew is tasked with.

The job description for the Emergency Management Coordinator requires planning and implementation of disaster-related efforts, which is not limited to things most people think of like hurricanes or ice storms.

“[The EMC will] Develop, design and deliver general emergency preparedness training and education to staff that includes roles before, during, and after a City emergency … Responsible for developing, implementing, and maintaining disaster planning and preparedness for the City of Wilmington to provide for the safety and well-being of the organization and its citizens,” the job description reads.

Multiple states of emergency have been issued since the start of the pandemic including COVID-19-related orders and restrictions.

Tew additionally called the CDC, the FDA, and NIH ‘corrupt’ during a school board meeting, which could also pose conflicts to her working with these agencies during emergency situations, if required.

A private citizen, not a city employee

Employees of a government agency do have the right to speak at public meetings and express their beliefs just like anyone else when acting outside of their official roles. Tew, who declined an on-camera interview but communicated with a WECT reporter through text, said her statements were just that.

“First of all, I want to be very clear,” Tew said. “I speak only as a mother and concerned citizen at the school board meetings. My comments are not representative of the city in any way. They are based on my own personal knowledge and experience. I am appreciative of the City’s respect of my First Amendment rights. I also respect everyone’s right to their own opinion, but facts are facts.”

However, the Supreme Court has held that even when acting as a private citizen, employers can take action against employee speech if it relates to their job function.

In March of 2020, a COVID-19 Pandemic disaster declaration was declared for the state of North Carolina.

The City of Wilmington, New Hanover County, and the state as a whole issued dozens of state of emergency declarations over the past two years, which included social distancing and mask requirements for residents.

While emergency situations fall under Tew’s responsibilities with the City, she claims her role does not conflict with her personal beliefs.

“Considering I have no role in public health policy, as that is a county function, I see no benefit in discussing my role as the City’s Emergency Management Coordinator,” she said.

According to the City, that’s accurate – Tew does not set policy. However, she is tasked with carrying out policies that are put in place.

“Her role as coordinator is to carry out the directions set by Emergency Management Leadership. She has no authority to set policy,” a City spokesperson said.

As a follow-up question, WECT asked, “Did the Emergency Management Leadership have anything to do with mask mandates, COVID-19 vaccine rollouts, or promotion of them?”

To which the spokesperson simply responded, “Yes.”

What about the First Amendment?

Brooks Fuller is the Director of the North Carolina Open Government Coalition. He works with First Amendment issues among other things. Fuller explained there could be consequences to this type of behavior, even if the public employee is acting as a private citizen. He pointed to a 2006 decision from the Supreme Court, which ruled that governments can take action against employees who speak out against matters that are related to their jobs.

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” Justice Anthony Kennedy wrote in the majority opinion for Garcetti v. Ceballos.

Fuller said because of this ruling, the city most likely could take action against an employee directly involved in public safety.

“As an emergency management director, and someone that deals with COVID policy, public health and public safety, the city and other governmental entities have a pretty strong interest in making sure that their speech, their policy, and the efficiency of government isn’t undermined by its employees. And they have some pretty broad discretion under Supreme Court precedent to discipline in that situation,” Fuller said.

Of course, there are limitations to this. Fuller offered a hypothetical situation of a City employee who has nothing to do with COVID-19 or emergencies.

“Imagining that the government employee’s speech has no relationship to their job duties, they would be much more at liberty to speak as a private citizen, as long as that speech was about matters of public concern. So if someone who is employed as a government employee wants to go to a school board meeting and speak about COVID policy, they have much more liberty to do so if their job doesn’t also involve the administration of COVID policy,” Fuller said.

“But when their job deals with the matters that are the subject of their speech, their employer, the government, has a lot more of an interest and much stronger interest in making sure that their speech comports and fulfills their job duties,” he continued.

Fact checking claims

Tew’s comments during school board meetings on masks and vaccines directly conflict with the city’s stance, despite the fact she was speaking about school policies.

At times, her claims are either false or lack context when citing studies and other warnings put out by researchers and government agencies.

Tew said none of the vaccines are authorized by the federal government and are only allowed through Emergency Use Authorization (EUA). She goes on to say federal law prohibits mandates on EUA products.

The Pfizer vaccine and Moderna vaccine have full approval by the FDA, just not for all ages.

“[The] FDA has now granted full approval for Pfizer-BioNTech (COMIRNATY) COVID-19 Vaccineexternal icon for people ages 16 years and older and for Moderna (Spikevax) COVID-19 Vaccine for people ages 18 years and older,” according to the Centers for Disease Control and Prevention.

Also, federal judges along with the Department of Justice and Congressional Research Service concluded vaccine mandates can be required, even if they are only approved under EUA.

“… We conclude that section 564 of the FDCA does not prohibit public or private entities from imposing vaccination requirements, even when the only vaccines available are those authorized under EUAs,” according to a memo from the Department of Justice.

In another argument, Tew pointed to the right to refuse EUA products outlined in law as a basis for not having vaccine mandates (although NHCS does not have a vaccine mandate in place for COVID-19).

Again, this is true; however, the right to refuse a vaccine does not mean there will be no consequences. Essentially, you must be informed of your right to refuse but both public and private entities are permitted to take action against those who opt out.

The Congressional Research Service, a federal agency that assists legislators in every step of crafting legislation, explained the logic.

“[E]xisting vaccination mandates—as they are typically structured—generally do not interfere with . . . an individual’s right to refuse in that context. Rather, they impose secondary consequences—often in the form of exclusion from certain desirable activities, such as schools or employment—in the event of refusal,” according to CRS.

A federal judge took up a case on the topic of vaccine mandates required by a hospital and explained her decision as to why the mandate could be enforced.

“Bridges [the plaintiff] says that she is being forced to be injected with a vaccine or be fired. This is not coercion… it is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses she will simply need to work somewhere else,” according to a decision handed down by a federal court.

Tew provided WECT with a study conducted by collecting data from Israel, reportedly linking cardiovascular emergencies to COVID-19 vaccines as evidence of her claims of vaccine dangers in children.

However, researchers who conducted the study said they did not have access to the vaccine or COVID-19 status of individuals requiring EMS treatment.

“It is important to note the main limitation of this study, which is that it relies on aggregated data that do not include specifc [sic] information regarding the afected [sic] patients, including hospital outcomes, underlying comorbidities as well as vaccination and COVID-19 positive status,” the study reads.

Tew also pointed to a warning issued by the CDC regarding the risk of myocarditis in children and teens.

However, the CDC notes cases of myocarditis are rare, and the study says there were 1,626 defined cases of myocarditis out of 354 ,100, 845 doses of vaccines administered between December 2020 and August 2021, that is 0.00045%.

Removal from meetings

While Fuller said Tew’s comments could be problematic given her role with the City, he said her removal from school board meetings was more nuanced.

“Government bodies that hold public meetings and provide public comment periods, they have to be very careful to make sure that they’re not engaging in content or viewpoint discrimination. So as long as they are applying rules fairly, equally and equitably, to folks who are participating in public comment,” he said.

This means a board can’t typically remove someone because of the content of their words, although there are a few exceptions that allow a board to restrict topics to items germane to their work.

“For example, if there are threats being made in a public meeting, or if someone is over speaking their time, or someone is causing a physical disruption or disturbance or impeding the process of the meeting, it doesn’t matter what they say, if they’re violating those policies the public body has the ability to remove folks,” he said.

The City of Wilmington provided a brief statement regarding Tew’s removal from meetings and her speeches.

“We are aware of the incidents. We want to be clear that Natosha’s comments were made in her capacity as a private citizen. She was not speaking for or on behalf of the City of Wilmington. At this time, that’s all we can provide,” that statement reads.

Ultimately, the deciding factors as to whether the City could take disciplinary action against Tew for her comments will rely on City management, and whether it’s determined her role as the Emergency Management Coordinator intersects with COVID-19 mitigation efforts.

Copyright 2022 WECT. All rights reserved.

Monday May 16, 2022