While a mandatory silence surrounds the details of the recent "involuntary resignation" of former town manager Nick Pegueros from Portola Valley Town Hall, some Town Council members have been willing to talk about one aspect of Mr. Pegueros' contract: the clause that forbids Town Hall staff from talking about his departure.
A clause in the three-year agreement, signed in December 2014, says that the council, the staff and Mr. Pegueros himself cannot talk to "the public, the press, or any Town employee concerning the termination of this Agreement."
This imposition of silence on staff members raises questions about whether it abridges their rights to free speech, and whether it is enforceable.
Lawyers asked to comment on language meant to silence the staff have said that its purpose is probably to direct the council to direct Town Hall employees to be quiet.
Nikki Moore, an attorney with the California Newspaper Publishers Association, said the clause is probably unenforceable, meaning that a staff member could not be sued for talking. But talking about the termination could put that person's employment at risk, she said. Portola Valley Town Attorney Leigh Prince agreed.
The Almanac asked the council members to comment on how that language made its way into the contract.
Councilwoman Maryann Moise Derwin said in an email she could not recall who proposed it, but said that the council was trying to give Mr. Pegueros "a contract that he was comfortable with" since the town manager had long been underpaid relative to contemporaries in the county.
"Given our history of friendliness and collaboration at Town Hall, I couldn't have imagined a scenario in which a manager would have parted on such terms that it would have actually mattered if the staff were chatty or silent," she said. "I certainly stand corrected on that naive thinking, and in a contract with a future town manager, I would not agree to many of the terms in Mr. Pegueros' contract. Steep and painful learning curve."
Councilman Craig Hughes said he saw only the contract's final version, after it had been handled by then-mayor Ann Wengert and then-vice mayor (and now mayor) Jeff Aalfs. Mr. Hughes said he recalled being told that Mr. Pegueros had described the framework of the previous contract as outdated.
Ms. Wengert did not respond to repeated requests for an interview.
"Town contracts must be able to control the actions of town employees to some degree (through their employment), or else they become effectively meaningless," Mr. Hughes said. "I think Nikki Moore is right that the employees could, of course, say whatever they like (if it's not slanderous) without legal repercussions, but as town employees, it is part of their job to not violate the terms of town contracts," he said.
Asked about the staff-silence clause, Mayor Aalfs said he doesn't remember who proposed it, but described it as "more a statement of intention than a binding statement."
Councilman John Richards said he could not recall discussing the matter, nor did he recall any controversy about it. "I can tell you that Nick did some very valuable things for the town, and that protecting his privacy was and still is a priority," he said.
Noting that he could not discuss Mr. Pegueros' departure itself, Mr. Hughes did say this: "We went through an extensive process over many weeks to review Nick's performance before that termination occurred. I can also tell you that I would not ever be party to any coverup of illegal or suspected illegal activity, nor any activity that went against" the equal opportunity employment or misconduct sections of the town's personnel policies manual.
Mr. Hughes said the council will likely tweak "some sections" of the contract with the new town manager. But, he added, "mutual-non-disparagement clauses are familiar to me from the private sector for senior managers, so I didn't find it unusual that there should be one in our contract with Nick."
Asked whether private sector practices were appropriate in the public sector, Mr. Hughes said that non-disparagement clauses were not universal in the private sector, and acknowledged the validity of the question for a public employee with a $200,000 salary.
But senior-level jobs are few, he noted. If the separation is for reasons that do not involve illegal behavior or other "nefarious things," Mr. Hughes said, it is "somewhat more reasonable" for senior employees to have some control over what is said about them.
The employer is more likely to agree to such clauses if the management is enthusiastic about retaining the employee, as this council was in December, he said. "He was a town manager whom everyone felt was doing a great job," he said.
The council will be evaluating its contracts with a colder eye in the future, he said. If a candidate requests a mutual-non-disparagement clause, it would be appropriate to consider it, Mr. Hughes said.