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.
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.