August 15, 2018BRISTOL — The resignation of embattled high school guidance counselor Shelly Philbrick has not ended the debate over whether someone in a position of trust can maintain that trust while exercising First-Amendment rights to express a controversial personal opinion.
The American Civil Liberties Union-New Hampshire expressed concern on Aug. 10 that seeing people lose their jobs over their testimony in support of a former colleague "may deter public employees from, in their individual capacities, giving testimony in criminal court proceedings."
The organization said, "The sentencing phase of criminal trials routinely utilize[s] character witnesses. Our justice system depends on such individuals feeling free to testify in court, including on behalf of individuals who have been accused or convicted of crimes. The chilling effect potentially created by these institutions' decisions is deeply damaging to the fair administration of justice."
The criticism was directed at the Newfound Area School District and Plymouth State University. The Newfound Area School Board had accepted Philbrick's resignation in a one-minute public meeting that followed a one-hour nonpublic session on Aug. 7. Plymouth State University had decided not to rehire Dr. Nancy Strapko, an adjunct teaching lecturer, and required counselor education professors Michael Fischler and Gary Goodnough to complete additional Title IX training before returning to the classroom.
Philbrick has been under fire for her testimony in support of convicted pedophile Kristie Torbick, a former colleague in the Newfound Area School District who was working as a guidance counselor in the Exeter School District when she got romantically involved with a 14-year-old freshman at the school. After Torbick pleaded guilty to four counts of felonious sexual assault, Philbrick was among those arguing for leniency in her sentencing, saying, "to incarcerate Mrs. Torbick as part of any plea bargain would be a sad injustice to her own three children, one of which is only 3 years of age."
Erin Camire of Bristol sent a letter to School Administrative Unit 4 Superintendent Stacy Buckley, asking her to schedule a special meeting to give residents a chance to discuss the situation created by Philbrick's comments.
"Many parents are concerned, as I feel they should be, with her requests for leniency for a self confessed and convicted child molester," Camire wrote. "I have already instructed my step-son on what to do if he should be in a position that he must speak to Ms. Philbrick. I will remove him from school that day and bring him to a third party counselor before he is to sit with her. … I am not saying that, because of her comments, that she will also do such heinous acts, but her judgment is not to be trusted."
The question of judgment also arose at Plymouth State University, especially when Strapko told the court, "Kristie takes full responsibility for her actions with her 'victim,'" Strapko said. "I put this in [quotes] because I am aware that her 'victim' was truly the pursuer in this case."
The university called those comments "legally wrong and morally reprehensible."
Devon Chaffee, executive director of the state chapter of the American Civil Liberties Union, said, "The ACLU-NH denounces sexual assault of any kind. Such actions against a minor are particularly egregious. The public is not served, however, by silencing the free speech of citizens speaking in their private capacity. As a society, we can and must support victims of sexual assault and steadfastly uphold the rights of citizens to participate in the criminal justice process."
Gilles Bissonnette, ACLU-NH's legal director, said, "The actions of Plymouth State University and Newfound Regional School District [sic] present serious free speech concerns, and these institutions may have violated New Hampshire law. New Hampshire provides even broader free speech protections to public employees than the protections that exist under the First Amendment. As RSA 98-E:1 states, 'a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies.' These protections exist out of a fear that public employers may do exactly what was done here — namely, terminate employees for unpopular speech done in an individual capacity concerning the government, unrelated to the employee's work.
"These actions against free speech are especially problematic with respect to former Plymouth State University lecturer and clinical mental health counselor Dr. Nancy Strapko, who was terminated, and a Newfound Regional High School guidance counselor, who was forced to resign."
The university did not "terminate" Strapko; rather, it did not renew her contract and said it would not hire her in any other capacity.
Whether Philbrick "was forced to resign" is unknown, as it is a personnel matter that is not subject to the Right-To-Know law, and the school board sealed the minutes of the nonpublic session for 50 years before accepting Philbrick's resignation. The decision was unanimous with exception of New Hampton board member Christine Davol, who did not attend the special meeting that had been called to deal with the single issue.
While both Newfound and the university said they had not granted permission for their staff members to testify on Torbick's behalf, that was not the case in the Bedford School District, which still is in upheaval after Superintendent Chip McGee resigned for having approved of his staff's request to support Torbick. Residents have been asking for action against the staff members who took part in the sentencing testimony.
Buckley said in a letter to Newfound parents last month, "I was not notified that [Philbrick] would be testifying, nor did I grant approval for her to testify. Ms. Philbrick acted on her own, not as a representative or with authorization of the school district. That being said, Ms. Philbrick has the right to speak on this matter as a member of the public."
After learning of the ACLU criticism, Buckley said,"The Newfound Area School District did not take action against Shelly Philbrick; the School Board accepted her resignation."