Can California state workers talk with the media? Yes, say 5 large departments

Restrictions on talking with the media are common features of California state government employment policies, but that doesn’t mean state workers can’t talk with reporters, according to five large California state departments.

The Sacramento Bee asked six of the largest state departments about their media policies recently while reporting on a state law prohibiting gag clauses in employment contracts and settlement agreements.

Senate Bill 331, which took effect in January, says California employers can’t use gag clauses to keep employees from publicly discussing harassment, discrimination or “unlawful acts” in the workplace. The law covers public agencies, whose taxpayer-funded operations are often matters of public concern.

But many California state employees fear reprisal for speaking publicly about workplace wrongdoing, partly due to their departments’ media policies, which don’t appear to be subject to the new law.

In 2019, after several Department of Tax and Fee Administration employees talked with a TV station for a story on a new elevator button with the word “RIOT” on it, a compliance officer emailed employees a reminder about the department’s media policy:

“The general message of the policy is that when staff receives inquiries from reporters, they should refer them to their supervisor or manager as those inquiries are handled by CDTFA by what is now called our External Affairs Division,” said a 2019 email from Program and Compliance Bureau Chief James Dahlen.

At the Department of Motor Vehicles, the media policy says, “All media inquiries are to be channeled through the Office of Public Affairs.”

Caltrans’ policy says, “Employees who are contacted by the media, or wish to correct media inaccuracies or promote good news stories must first be cleared by (public information officers).”

Despite the policies, spokespeople from each of those three agencies said employees may speak with the media. In emails, they drew a distinction between employees speaking on behalf of their departments and speaking on their own behalf.

Department media policies

Blanket prohibitions on public employees speaking with the media have been found unconstitutional, but they remain common at all levels of government around the country, according to a 2019 analysis published by the Florida-based Brechner Center for Freedom of Information.

“People don’t forfeit their constitutional rights, including the right of free expression, simply by accepting government employment,” the paper says, citing two Supreme Court decisions from 1967.

More limited restrictions — including those on employees claiming to represent a government agency’s official views — have been found permissible, according to the analysis.

In an emailed response to recent questions from The Bee, CDTFA spokeswoman Tamma Adamek drew that distinction.

“Employees should direct media inquiries requesting CDTFA’s official position to the External Affairs Division,” Adamek said in the email. “Employees are not prohibited from exercising their free speech rights when it comes to expressing their own opinions.”

Department of Motor Vehicles spokeswoman Anita Gore drew the same distinction.

“Generally, DMV employees aren’t authorized to speak on behalf of the department and are therefore advised to refer any media questions regarding the department to our Public Affairs office in order for us to provide accurate and consistent information to the public,” Gore said in an email.

Likewise with Caltrans: “Nothing in (Senate Bill 331) or Caltrans’ policies prohibits employees from speaking to the media on their own behalf, in their individual capacity,” spokesman William Arnold said in an email. “However, Caltrans’ official statements and official responses to media inquiries are handled by Caltrans’ Public Affairs Division.”

Department of Corrections and Rehabilitation spokeswoman Terry Thornton said the agency doesn’t “restrict an employee’s ability to disclose information related to conditions or unlawful acts in the workplace.”

The Franchise Tax Board’s policy encourages employees who are contacted by the media to refer the inquiries to the agency’s Public Affairs Office.

“We do not prevent employees, as a condition of employment, from disclosing alleged discrimination, harassment or ‘unlawful acts,” FTB spokeswoman Victoria Ramirez said in an email. “Our policies don’t prevent employees from speaking to media or identifying themselves as an FTB employee. However, if employees identify themselves as FTB employees, they need to be clear that they are not responding/speaking on behalf of FTB.”

The Employment Development Department’s spokespeople declined to answer questions about its media policy.

This story was originally published May 4, 2022 at 5:00 AM.