Solicitor wants out of representing Gale in suit

NORRISTOWN » The Montgomery County Solicitor’s Office has asked a county judge to rule that county lawyers do not have to represent Commissioner Joseph C. Gale in a federal lawsuit filed by constituents who claim Gale violated their constitutional rights by blocking their comments on Gale’s social media accounts.

In court documents, Philip W. Newcomer, a lawyer representing the county, claimed Gale rejected the guidance of two successive county solicitors regarding public officials’ use of social media and the deleting or blocking of users’ comments.

“Choosing to disregard those warnings, Commissioner Gale willfully engaged in that practice by deleting comments of the constituents who would later sue him … and by blocking their access to

his social media accounts,” Newcomer wrote in papers filed in county court.

Newcomer maintained Gale’s “deliberate indifference” to the advice of county solicitors concerning the First Amendment rights of constituents on social media “amounts to willful misconduct,” justifying a judicial determination “that the county be relieved of any obligation” under state law to cover Gale for any damages that could be awarded under the lawsuit.

Newcomer argued the lawsuit could have been avoided had Gale “heeded the guidance he received from not one, but two successive solicitors concerning his conduct on social media.”

“Instead, Commissioner Gale willfully chose to reject that guidance, wastefully embroiling himself and the county in a federal civil rights action of his own making,” Newcomer wrote in court papers.

Furthermore, Newcomer argued, by Gale’s own admission, the social media accounts at issue are his “personal and campaign social media accounts.”

“Consequently, Commissioner Gale’s conduct with regard to those personal and campaign accounts should be judicially determined to be outside the scope of his office or duties as a county commissioner – relieving the county of the obligation to indemnity,” Newcomer wrote.

A hearing date has not

yet been scheduled on the county’s request for a socalled “declaratory judgment.”

Reached on Tuesday, Newcomer said the parties to the federal action concerning Gale’s social media accounts have been engaged in productive settlement negotiations. If those negotiations result in a court-approved resolution of the federal action, the county’s declaratory judgment action will be rendered moot, Newcomer explained.

An attempt to reach Gale for comment on Tuesday was unsuccessful.

In late June, a coalition of three law firms filed a complaint in U.S. District Court in Philadelphia, on behalf of eight county residents, asking a judge to stop Gale from censoring the opinions of his constituents on his official social media platforms. The constituents, who allege Gale violated their First Amendment rights, are seeking an injunction forcing Gale and “Friends of Joe Gale” to restore their access to the social media accounts.

The suit lists Gale, of Plymouth, individually and in his official capacity as commissioner and “Friends of Joe Gale,” which according to the complaint is an organization that assists Gale in the operation and maintenance of his social media accounts.

The complaint was filed by lawyer Philip Press, of Norristown; Walsh Pancio, LLC of Lansdale; and Mudrick & Zucker, P.C. of Blue Bell on behalf of the eight constituents.

Joseph P. Walsh, a Lansdale lawyer and former

county judge who represents the plaintiffs, argued courts nationwide have held that elected officials cannot engage in viewpoint discrimination on the official social media pages that they use to communicate with the public. While Gale has the constitutional right to say what he pleases, he does not have the right to quash the voice of opposition to posts he makes in his role as a public official, Walsh argued.

In the suit, seven constituents alleged they were blocked by Gale on social media after posting comments critical of him on his official Facebook, Twitter, and Instagram pages. An eighth constituent wished to view the full range of dialogue on Gale’s social media pages but was prevented from doing so by Gale’s selective deletion of unfavorable comments, the complaint alleged.

Adam Zucker, who also represents the plaintiffs in the federal suit, reacted to the arguments Newcomer put forth in the county’s request for a ruling it does not have to represent Gale.

“I think all the counsel were pretty surprised that he had received multiple warnings about this from the county and yet persisted in his suppression of constituents’ ability to comment on social media pages,” Zucker reacted.

Newcomer argued in court papers that the social media accounts at issue “are not operated, maintained or controlled by the county” and were created and maintained by Gale and “Friends of Joe Gale.”

After the suit was filed, Gale publicly described the accounts as “my personal and campaign social media accounts,” according to court papers.

On July 3, Gale, in a letter to county Solicitor Joshua M. Stein, inquired about whether the county would be representing him in both his individual capacity and in his capacity as a county commissioner. Gale also requested the county provide him with a lawyer, at county expense, to defend him in the lawsuit and engage outside special counsel to represent him in his capacity as county commissioner, according to court papers.

“I want to be involved in the process of selecting counsel to ensure that the attorney/firm is qualified for the case, has sufficient experience in federal court, and has adequate knowledge of Federal Constitutional Law,” Gale wrote.

In a July 6 letter, the county solicitor’s office denied Gale’s request to defend the claims brought against him individually, because his “actions qualify as ‘willful misconduct’” and because the social media accounts in question “are not within the custody or control of the county.”

“Regarding the claims against you in your individual capacity…the county declines representation and does not intend to pay for the cost of outside counsel to represent you,” Stein wrote to Gale.

Lawyers for the county maintained the lawsuit filed by the constituents “would have been avoided had Commissioner Gale simply heeded guidance he received from not one, but two successive county solicitors concerning his conduct on social media.”

In August 2017, according to court papers, the county received an ethics complaint from a citizen who contended Gale violated the county ethics policy by blocking her access to his Facebook page after she expressed opposition to Gale’s posts advocating a change in Whitemarsh Township’s slogan. At that time, according to court papers, then Solicitor Shelley Smith informed Gale that actions such as blocking individuals with whom he disagreed could create liability for the county under federal law.

Stein, who became solicitor in January 2019, reiterated the guidance and warning the previous solicitor had provided to Gale.

“As such, it would be improper and contrary to public policy to provide a county-funded defense to you, as you were made aware of this possibility almost three years ago, and

chose to ignore those warnings,” Stein wrote to Gale in the July 6 letter, recommending Gale hire private counsel to represent him in the litigation.

“I would also encourage you accept any offer to settle the matter which involves unblocking individuals and/or no longer deleting comments with which you disagree, as this will ensure the county is insulated from liability for your personal or campaign related actions,” Stein additionally addressed Gale.

To the extent that the constituents’ lawsuit named Gale in his official capacity, Stein, in the July 6 letter, wrote that a lawyer from the solicitor’s office would enter their appearance in the lawsuit “in order to protect the interests of the county only.”

But a day later, the county filed the request for declaratory judgment, asking a county judge to rule that the county does not have to represent Gale in the matter.

“I think all the counsel were pretty surprised that he had received multiple warnings about this from the county and yet persisted in his suppression of constituents’ ability to comment on social media pages.” — Adam Zucker, attorney