ESCONDIDO — A Palomar Health board member has filed a free speech complaint against the health care district after being threatened with sanctions over comments she made to a San Diego media outlet concerning controversial terms of use on the hospital’s website.
The issue arose shortly after Palomar Health added a mandatory terms of use agreement to the hospital’s website in August. The pop-up window required users to waive legal rights (i.e., privacy, the right to participate in a class action lawsuit, etc.) and permit collecting personal identifying information before entering the website.
The terms also included a copyright clause that said users could not copy, republish, post or distribute any of the website’s information or materials without first receiving permission from the district.
According to a Voice of San Diego article, experts agreed the terms were likely in violation of the Brown Act, California Public Records Act, and other state laws due to Palomar’s status as a public healthcare district.
Under the terms of use, board meeting agendas, minutes, adopted budgets, financial reports and other public records would have been included under the copyright clause, preventing anyone from republishing or distributing materials without the health care district’s permission.
Palomar Health has since updated the agreement to allow public records to be copied or distributed following the Voice’s story.
Following the article, Laurie Edwards-Tate, a Palomar board member and founder of At Your Home Familycare, commented on behalf of herself, not the board, expressing her concerns about the terms of use creating a barrier to public access.
“It was shocking to me, and I felt prohibited from its use, and I felt like it was a barrier to being able to access it,” Edwards-Tate told the Voice after she tried to access the website for meeting agendas.
Edwards-Tate told The Coast News that she was unaware of the broad nature of the hospital’s terms of use and did not get a chance to vote on them or debate their contents before they were implemented.
Edwards-Tate is currently in her second term on the board. She was first elected in 2018 for Zone 3 and then reelected in 2022.
She told The Coast News about her passion for serving the public and felt that creating a barrier to public information like the terms of use is “the antithesis of what it means to be a public institution.”
“I realize there is a need for special sessions and confidentiality, but I found this to be very difficult to accept as a member of the board knowing how much the voter depends upon the people they elect to look out for their welfare and interests,” Edwards-Tate said.
Following her comment, Edwards-Tate received a notice of action via email from the board’s attorney listing potential infractions she committed against the district’s media policies for commenting without getting permission first.
“It was very intimidating to receive it,” she said.
Then, an item was placed on the Oct. 9 board agenda to take a vote of no confidence against Edwards-Tate. Instead, the majority of the board decided to investigate the matter.
It was after that board meeting that Edwards-Tate sought legal counsel.
“If I see something happening in the district and there is a concern about it, I have both the right and the responsibility to let (constituents) know,” she said. “Yet for doing that, the district is threatening to sanction me.”
The Dhillon Law Group, in conjunction with the Center for American Liberty, filed a legal complaint against Palomar Health due to First Amendment violations. Through this, Edwards-Tate asked the court for a declaration that the board’s policies violate the First Amendment and an injunction preventing the district from sanctioning her speech.
“We asked for a temporary restraining order—it’s an emergency relief that stops the hospital from restricting Edwards-Tate’s freedom of speech,” said attorney Karin Sweigart.
Sweigart said the district’s actions are a “blatant infringement on First Amendment speech.”
On Thursday, Nov. 2, a judge in the U.S. District Court for the Southern District of California denied Edwards-Tate’s application for a temporary restraining order because she failed to provide the district’s media policy, duty of care and loyalty policies to be considered. Though she did attach the notice of action, the full text was not provided, according to the court.
“The Court will not enjoin that which it has not reviewed. Nor, as a practical matter, can the Court craft a temporary restraining order without being provided the full text of the policies at issue,” the court response states.
The court also found other “deficiencies” in the restraining order request, noting that Edwards-Tate failed to allege she was being investigated and did not provide adequate evidence that she was being sanctioned or what that entails.
“The Court detailed Director Edwards-Tate’s numerous failures, ranging from failing to attach the policies she claims violated her rights to showing how investigation of her misleading comments impacted her at all to wondering why she waited a month to file despite her newfound claims of ‘imminent harm,’” a statement from Palomar Health reads.
According to the healthcare district, there is only one rather than three separate policies: the Palomar Health Board of Directors Code of Conduct.
“The Code of Conduct details all the rights and responsibilities of directors,” explained district spokesperson Bianca Kasawdish via email. “Director Edwards-Tate was present when the Board adopted the Code of Conduct, and so should be familiar with its terms, including the media policy in 3.8.”
According to the policy, board members are “encouraged to contact” the district’s marketing department or a media representative before speaking or publishing to the media on district business matters. The policy also cautions that board members should define opinions reflecting their views.
“Board members must be aware that they are always perceived and recognized as Board members, even when they designate comments as personal, the policy states. “As such, board members must be mindful of their fiduciary duties of care and loyalty and the consequences of a violation of either or both in the context of any discussion with the media.”
The policy states that although board members have the right to express their personal views regarding matters concerning the public, these views could conflict with an official board position.
Sweigart said Edwards-Tate’s legal team will file a first amended complaint in return that includes the “necessary documents” once the hospital provides them.
“We’re going to be clarifying some of the facts for the court,” Sweigart said.
