Enjoy the $ilence

I just read Francine Fialkoff’s editorial “NYPL Secrecy Must Go” which is a reaction piece to the New York Times article, “Former Employees Feel Silenced on Library Project”. The whole thing reads like a muddied mess for it seems like anyone it touches gets a little dirty. It originates from the NYPL including a nondisparagement clause in their separation agreements; the library offers additional money in return for the person agreeing not to criticize the library. Or, from the copy quoted in the New York Time piece,

The clause in question prohibits employees from commenting to the news media or other entities with which the library does business in a way that could “adversely affect in any manner the conduct of the business of any of the library entities (including, without limitation, any business plans or prospects)” or “the business reputation of the library entities,” according to a copy of the separation agreement obtained by The New York Times.

Even within that little blurb, there is enough language to suggest that it has been crafted as broadly as possible in lawyer talk to cover a multitude of situations, real or imagined. Not that I blame the NYPL for trying telling their lawyers to draw up something that could be wielded against dissenters at a moment’s notice; they certainly are working to protect their own interests, not the interests of the departing employee. The article goes on to contain a clarification from the library:

The library said in a statement: “The clause is in place to protect library employees and library management. It is not intended to stop a former employee from exercising his or her right to free speech by discussing matters of public interest, such as expressing an opinion on the advantages and/or disadvantages of the Central Library Plan.”

Several former employees and employment lawyers, though, said the nuance was lost on them.

Nor is the nuance lost on anyone else who read that aforementioned clause. Written as generously as it appears to be, it is the kind of legalese that the library lawyers can shape into breach of contract suits with those who displease the library management by “commenting”. The former employees would be at risk to lose more than their severance payments in legal fees and penalties, even with a successful defense. The implication of that outcome is enough to keep people sitting on the sidelines and I can’t blame them for doing so.

To be honest, I have a hard time feeling sympathy for those who chose to sign the agreements. They are, in effect, being paid for their silence. Their opinions have a defined monetary value and the library has chosen to purchase it. Now, at a juncture when the library is touting a controversial project, that purchase is paying off in limiting critical analysis from former employees who have insider perspectives. No one was compelled to sign it and take the money. As much as people can say that is “hush money” or used to squash dissent, there is a willing accomplice to this act in the employee who will sign the agreement. I’m curious as to why none of the scrutiny has been on the employees for taking the money rather than solely on the library for offering it. I’m also curious as to why the taxpayers of New York City seem to be alright with spending money on such things in the midst of the annual city budget fight. The expense of paying departing employees for their silence when that money could be used for, oh, a couple hundred other things that library members actually use seems wasteful and narcissistic.

The part that bothers me the most in this whole debacle is a comment from the ALA president-elect Maureen Sullivan.

Maureen Sullivan, the president-elect of the American Library Association, a national organization, said she had no problem with the New York library’s use of nondisparagement agreements. “It is a core value of librarianship and of most libraries to respect intellectual freedom,” Ms. Sullivan said, “but this is a different situation.” Such agreements, she said, typically do not seek to restrict a departing worker’s ability to comment generally about a former employer but are “an agreement about what will be said about the end of that employment.”

Ms. Sullivan said that organizations commonly use them, though at least two large library systems — those of Los Angeles County and Boston — said they did not.

First off, the clause as reported above does not limit itself to end-of-employment commentary. Perhaps typically they do not restrict speech so broadly, but in this specific case, they really do curb the departing worker’s ability to comment on their former employer. Granted, as I said before, the departing employees are getting money in exchange for agreeing to do so. But Maureen’s comment does not line up with the reality of the situation which makes me wonder why she agreed to comment at all without actual knowledge of the nondisparagement clause. It just really sounds bad.

Second, I can’t get past the underlying implications of the Maureen’s quote: “It is a core value of librarianship and of most libraries to respect intellectual freedom but this is a different situation.” Translation: intellectual freedom is important, but it is also a viable commodity for sale (even if Maureen mistakenly believes that is it just about the end-of-employment). No one’s intellectual freedom is being oppressed, it’s just being contractually exchanged for a severance payout. That’s totally different! So, in applying that logic, if the freedom to read is an important librarian value and I just happen to pay each man, woman, and child in a particular library service area to agree not to read a book that I don’t like, have I really abridged their freedom to read whatever they want since I have monetarily compensated them for it in regard to one book? When asked for comment by the media, I could simply say, “The freedom to read is a core value of librarianship and of most libraries respect the freedom to read, but this is a different situation.” I’m not oppressing anyone, I’m just purchasing a tiny bit of their freedom to read. Sure, I’m being hyperbolic here, but it really does beg the question as to what conditions (especially contractual ones) make it acceptable to give up our core values of librarianship. Does everything have a price?

The ALA adopted Universal Right to Free Expression says that freedom of opinion and expression “cannot be surrendered, nor can it be denied”, but bartered or bought seem to be alright. I don’t know how Maureen’s comment in this story matches up with other ALA adopted positions such as the Resolution on Workplace Speech or Questions and Answers on Speech in the Workplace from the Intellectual Freedom Manual which opens up with this little humdinger:

Since librarians have a special responsibility to protect intellectual freedom and freedom of expression, do librarians have a special responsibility to create a workplace that tolerates employee expression more than other professions?

Yes. Libraries play a special role in ensuring the free flow of information in a democratic society. Librarians are often called on to fight censorship and resist efforts to restrict individuals from receiving information and expressing ideas.

(Emphasis mine.)

Unless, of course, it is a different situation. Here, the efforts to restrict individuals from expressing ideas are alright because there is a quid pro quo. And now the president-elect of the ALA has come along and endorsed it. All we need now is a Council resolution that says that the Library Bill of Rights are not so much rules as they are guidelines (like the Pirate Code). Then, the undermining of core librarian values (which apply universally except at times when they don’t) will be complete. Did I miss anything?

I look forward to your comments. Don’t worry, there is no disparagement agreement in place for whatever you have to say.

That would be just plain wrong.

13 thoughts on “Enjoy the $ilence

  1. Ah, and there’s the rub. As the American Library Association serves the interests of *both* libraries (employers) and librarians and library workers (employees), there will always been a “balancing act” of sorts by the Association to look out for the interests of all. Not the most sound way to run things, IMHO, but this is how we have developed our professional organization over the years. It would be preferable to have two, *separate* associations: one looking out for the interests of libraries and the other looking out for the interests of librarians, library workers, and information professionals. This would solve a multitude of problems, but I’m not so sure there is the political will or momentum out there for this type of paradigm shift to take place at the present time.

    • Thanks for the comment, Matt. I just think that commenting on it was a terrible idea since you’re going to piss off one of those sides. It would have been better to sit out if you’re the president-elect of ALA.

  2. When I was laid off from my job last year, my severance was tied to my signing a non-disclosure contract that said I could not speak in any way of my previous employer similar to what’s above. It wasn’t them making an offer and me accepting it — it was me being able to buy food and pay my mortgage for the next 6 months while all of us laid-off were job-hunting. Does it sting not being able to tell people how we were treated? Absolutely. Is it more important to be able to be sure my kids have food and that we don’t have to immediately move to another state in hopes of finding a job there? There’s really no contest.

  3. The mission of the ALA (from their webpage at http://www.ala.org/aboutala/missionhistory): “Founded on October 6, 1876 during the Centennial Exposition in Philadelphia, the American Library Association was created to provide leadership for the development, promotion, and improvement of library and information services and the profession of librarianship in order to enhance learning and ensure access to information for all.” I do not see much in the way of advocacy for librarians, except that perhaps we are better educated for our service. In any event, virtually everything the ALA stands for appears to be libraries, not librarians. As respects the severance, I must stand with Sunny. I’ve signed nondisclosures and even noncompetes for other types of businesses because I *needed* that extra money, having suddenly been put out of work. Which is what makes them difficult to enforce: Any jury is going to know the agreement was signed under, essentially, duress. And wouldn’t it be embarrassing for the public to know that they’d paid someone off to be quiet, while still proclaiming intellecutal freedom and freedom of speech?

    • The ALA just wants to be able to issue librarian licenses through accreditation; beyond that, it is about the libraries because people are essentially transitional while the institution is not.

      I don’t think it is unreasonable to say that there are going to be a broad number of circumstances to which people signed the nondisparagement clause in order to get the payment. Yes, for the end of the spectrum you are describing, it is unfair. But I don’t see it as an unavoidable choice, even if it feels inevitable or undeniable. There’s always a choice even if the options aren’t the best.

  4. I agree with Sunny. You’ve chosen to ignore the reality behind the “choice” of the ex-employees, i.e., they needed to support themselves and their families and thus, did NOT have a choice about accepting the clause. In addition, your characterization of their silence being bought is based on your assumption that the employees chose to leave of their own volition and thus, freely chose to accept money for silence. I wonder if these people chose to leave or were laid off/downsized, etc.
    My experience in the corporate world, watching thousands of people laid off, I am sure that these people had no choice but to accept the terms or lose their severance. It’s only the executives who have any choice or freedom.

    • I’ll concede that I don’t know all of the details; some of these are the result of buyouts while others may be downsized or laid off. In terms of each employee, yes, they have their own story. I’ll note that you don’t have details either, so we are both looking at this with outside perspectives. (If you do have some inside perspectives or anecdotes, feel free to share.) So, I’m guessing that the truth is somewhere inbetween; some people took the money because they could, others because they felt like they needed it. But, as the library states plainly, it was the choice of the individual. There is still a choice by the person. We can dance around the underlying rationales, but I still see it as a choice and even more so since some departing employees decided not to sign it.

  5. Pingback: On silencing | Gavia Libraria

  6. To me, this sounds like a non-story. Given the budget pressures that most libraries including the NYPL are under, can we expect then to spend hundreds of thousands of dollars if not millions on legal fees to go after a former employee who makes disparaging remarks? A company like Apple might be able to do that, but most libraries cannot. I’m not against these agreements in the sense that benefit both parties and help both the employee and the library move on… hopefully, to become better each in their own way.

    • Thanks for the comment, John. I think Francine’s editorial reads more like inside baseball; they have stories and accounts of the culture within the NYPL, but not much in the way to show the reader. It just looks bad for everyone involved, from the library to the former employees to the ALA.

  7. Pingback: I’d tell you the title of this post, but it’s been censored by libraries « Collection Development « Library Science « Information Science « tl-dr

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