AB 3109 by Assemblyman Mark Stone (D-Santa Cruz), introduced on February 16, could at least reduce the practice among California state and local agencies of using taxpayer funds as “hush money” to keep the public from discovering things gone wrong with their government.  The bill would make a contract or settlement agreement void and unenforceable if it contained a provision that waived “a party’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” or restricted his or her “right to seek employment or reemployment in any lawful occupation or profession.”
As Stone’s announcement states, “The below examples illustrate the need for the measure:”

  • American Olympic gymnast McKayla Maroney was subject to a $100,000 fine for testifying in a criminal trial against Larry Nassar, a team doctor who sexually abused her (along with several others) when she was 13 years old.  Maroney’s settlement with the US Gymnastic Association (USGA) required her to maintain public silence about the abuse.  After Maroney brought suit in a California court to challenge that provision so that she could testify in Nassar’s criminal trial, the USGA agreed that it would not enforce the agreement if she testified.   However, USGA could have enforced the terms of agreement and Maroney would have been subject to the fine. While public pressure eventually caused the USGA to waive its right to enforce the agreement, less prominent plaintiffs might not have been as fortunate.  AB 3109 ensures that such silencing provisions in settlement agreements would not be enforceable.

  • As for the other provision, in Brown v. State Personnel Board (2012), California State University, Fresno (CSUF) police officer Auwana Brown filed a sexual harassment suit against the CSUF police chief.  According to the terms of her settlement, she was barred from working for CSUF and from working anywhere within the CSU system.  Such settlements create an atmosphere that discourages victims and witnesses from coming forward at the risk of losing current or future employment opportunities.

What’s unclear is whether the speech protection would extend not only to testimony but to any statement protected by constitutional speech rights.  It is not unheard of, for example, for government agencies parting company with employees under controversial circumstances to provide severance settlement packages that include “non-disparagement” clauses—actually retroactive nondisclosure agreements as well—whereby the employee is bound to avoid any public statements or disclosures about the agency concerning his or her period of employment or the termination thereof, or forfeit the severance compensation. These clauses may be most common in circumstances where a senior government employee is discovered to have left the agency’s employment virtually overnight, with no public announcement nor even any explanation upon inquiry.

In effect, these agreements can use public funds to buy the employee’s silence about facts embarrassing or even incriminating to the agency or its officials.  The public is left to ask, “What went wrong?,” and neither the agency nor the employee will say.  The former will call the departure a “personnel matter” and the latter, if commenting at all, will at most simply say the matter is a legal issue they can’t talk about. And of course the whole resolution will have been proposed, discussed and approved in a closed session of the governing body (if dealt with at that level at all) and in any case handled by the agency’s lawyer(s) in discussions made confidential by the attorney-client privilege.