San Leandro's Restriction On Speech Of City Commissioners Unprecedented And Wrong

On July 6, 2018, the City mailed a legal document to all San Leandro commissioners requiring that they sign the document by July 13, 2018, attesting to their acknowledgement that they are contractually obligated to never "demean or besmirch the reputation" of Mr. Zapata.  Failure to sign this document will result in their "forfeiture" from office as a commissioner.

The Mayor and City Council have made a serious mistake in placing a restriction on the speech of all City employees and City Commissioners in the course of reaching an agreement with former City Manager Chris Zapata for his departure in exchange for a payment of $350,000.

Presumably the Mayor and City Council acted on the poor advice of the City Attorney.  But the decision is their responsibility. The Mayor and City Council have caused great stress and anxiety for all City Commissioners - who give freely of their time for the betterment of the community. [Disclosure: My wife is a commissioner. She refused to sign the document.]

Now that this error has been pointed out, the Mayor and City Council should be  working to remedy the situation.  Instead, the City is trying to convince the commissioners and public that this is a minor matter and any concerns raised are misplaced.

On July 12, 2018, the San Leandro Times reported, "The gag order only applies to the commissioners and board members when they are acting in their official capacity, according to deputy city manager Eric Engelbart. Engelbart said that the agreement is 'fairly standard' and that it does not force the officials to abandon their First Amendment rights to express their opinions when acting as an individual.”

These statements are highly misleading and false.

The First Amendment prohibits the government from restricting the free speech absent a very narrow range of exceptions (calling out fire in a crowded theater is the classic example of a proper restriction).  Political speech receives the greatest protection under the First Amendment.

While anti-disparagement clauses are found in many separation agreements, it is not "fairly standard" to extend these provisions to all members of the public agency - here approximately 500 San Leandro city employees.  And it is extraordinary to extend an anti-disparagement clause to non-public agency employees, in this case City Commissioners.  

Moreover, the text in the separation agreement with Mr. Zapata containing the anti-disparagement clause is expansive.  It contains no limitation on City Commissioner to when they are “acting in their official capacity." 

What does this mean in concrete terms?  

If a City Commissioner were to run for elective office and criticize the City's poor fiscal management and deficit spending over the past two years under Mr. Zapata, she or he would be at risk of being sued for violating the anti-disparagement clause.  Such statements would be comments that reflect negatively on Mr. Zapata's reputation - which in a nutshell is what the anti-disparagement clause prohibits.  

While I believe such a lawsuit against a City Commissioner would be promptly thrown out of Court, the fear and cost of litigation alone is sufficient to intimidate many persons from speaking freely.

In essence, the Mayor and City Council have sought to grant Mr. Zapata immunity from any criticism of his actions as City Manager.  That, of course, also serves the interest of those members of the City Council running for re-election. 

At least two City Commissioners are planning on running for City Council in November.  Mr. Zapata's stewardship of the City will be an issue in the elections.

Finally, from the City's own interests this agreement was a terrible decision. City Commissioners do important work without receiving any compensation.  Why would anyone want to serve as a commissioner if, without their prior consent, the City entered into a contract restricting the free speech of commissioners and then threatened commissioners with the embarrassment of removal from office for refusing to comply with the contract? 

In conclusion, the Mayor and City Council agreed to an unprecedented restriction on the free speech rights of themselves, city employees and city commissioners. They should admit their error and remedy it, not try to convince the public that no mistake was made.