Federal judge says Norfolk-area NRD went too far in sanctioning board member 

U.S. District Judge John Gerrard issued an order Wednesday granting a preliminary injunction sought by Melissa Temple against the Lower Elkhorn Natural Resources District. Temple represents eastern Norfolk for the 15-county NRD. 

Gerrard wrote that the board likely violated Temple’s First Amendment rights by retaliating against her and limiting her access to travel reimbursements and per diem payments while doing board business. Temple was represented by the new First Amendment Clinic at the University of Nebraska-Lincoln.

Nebraska law requires NRDs to reimburse board members “for their actual and necessary expenses incurred in connection with their duties,” Gerrard wrote. He found that the board’s actions had a potential “chilling effect” on Temple’s speech. 

“If Temple continues to engage in protected speech, such as informing the press of how the sanctions are affecting her ability to govern, she might be subject to further sanctions,” Gerrard wrote. “Temple’s right to publicly criticize the LENRD’s decision is enshrined by the First Amendment.”

‘Cannot suspend’ pay as sanction

Gerrard wrote that based on history and tradition, a government “cannot suspend the pay of an elected official as a sanction” and that suspending “Temple’s right to receive reimbursements for out-of-district travel materially affects her ability to perform her duties for her constituents.” 

The board, he wrote, has the authority to remove Temple from subcommittees but, the judge wrote, the NRD and its voters should question whether it should.

In August, the NRD board prohibited Temple for a year from being reimbursed for any board-related travel expenses outside the district or per-diem payments while working on board business. The board also stripped her position on any NRD subcommittees for the year.

In April, the board had rejected Temple’s complaint 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 his own complaint, criticizing Temple for confirming her complaint to the Norfolk Daily News.

Discretion to discipline

Temple on Wednesday said she was pleased with the judge’s order and that her case was “much larger than just me.” She said the order upholds and preserves “our fundamental freedoms.”

“It’s about the freedom to speak up without fear of retribution, the freedom to file complaints and not face unconstitutional forms of retaliation, and the freedom to fully do the job I was elected to do,” she said.

One of her lawyers, Daniel Gutman, said Temple and the clinic want to “vindicate these First Amendment rights.” 

NRD attorney Don Blankenau had argued that as a legislative body, the board had wide discretion to discipline its members. 

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. 

Brian Bruckner, the NRD’s new general manager, said Thursday that the organization and its attorneys were aware of the judge’s order.

“The District has no other comment on the matter at this particular time other than to state that we respect the opinion of the Court and that we will comply with the terms of the order,” he said. 

Gerrard had called on both parties earlier this month to find a way forward. Wednesday’s injunction stays in place until a trial is held or the case is otherwise resolved.

“Frankly, this whole ordeal has the potential to erode public confidence in the LENRD’s ability to govern,” the judge wrote. “The LENRD simply does not have the power, under Nebraska law and the United States Constitution, to withhold Temple’s reimbursement and per diem payments.”