In the aftermath of a separation agreement last week between the San Leandro City Council and its now former city manager, the city is not only directing the mayor and councilmembers to sign non-disparagement agreements, but also members of its boards and commissions.
The inclusion of council appointees in such a compact meant to ensure the city is sufficiently protected against a potential lawsuit, in this case by the departing city manager, is not entirely unique, but nonetheless, atypical.
A pair of San Leandro board and commission members tell the East Bay Citizen that they received the agreement earlier this week that was labelled “privileged.”
They say it asks board and commissioners appointed by the mayor and councilmembers to refrain from making any disparaging comments against Chris Zapata, the former city manager who was placed on paid investigative leave last January pending an independent investigation of sexual harassment claims by Rose Padilla Johnson, the executive director of the Davis Street Family Resource Center.
Zapata was reinstated by the council to resume his duties as city manager on June 4 after the resulting investigation found the claims not credible. Zapata and the city signed a mutual separation agreement last week, paying him $350,000 in severance.
Those who decline to sign the non-disparagement agreement could be removed from their appointed positions, according to those who reveiwed it.
On Monday night, San Leandro Mayor Pauline Russo Cutter acknowledged the existence of the non-disparagement agreement being sent to board members and commissioners, but added its intent is not to remove them from their positions.
It is believed that the document is designed to protect the city from any liabilities in the event an appointed commissioners makes negative comments about Zapata during the course of their duties as city officials, but not as private citizens.
Human Services Commissioner Victor Aguilar, also a San Leandro school board member, said he was surprised to receive the agreement this week and questioned whether it violates free speech. He was unsure whether he would sign the document and is consulting with his attorney.
Diana Prola, a member of the Library-Historical Commission, and like Aguilar, a member of the school board, said Monday that she had already signed the agreement.
The agreement, however, could pose additional questions for some board and commission members, especially those eyeing a run for office in San Leandro this fall.
Some, like Prola, who have made several public statements in strong support of Zapata in recent months, might have little to worry about by signing the agreement. Aguilar, though, is a declared candidate for District 3 Councilmember Lee Thomas’s seat this November. Earlier this spring Aguilar called for Zapata’s firing during a council meeting.
Presumably, criticism of Zapata and Thomas’s vote to reinstate the city manager last month and his decision to approve the $350,000 settlement last week, will be part of Aguilar’s campaign platform over the next few months.
Planning Commission member Ken Pon is another appointed official who is running for city office this fall. He is challenging District 1 Councilmember Deborah Cox.
The additional layer of bureaucracy to a non-disparagement agreement is not the norm, according to officials in other East Bay cities. Furthermore, potentially difficult to enforce. Alameda’s recent separation agreement with its city manager included no such language.
But Zapata’s separation agreement also had another curious addition, a sentence that leaves open not only his ability to sue former San Leandro elected officials, but also non-profits like the one run by Padilla Johnson.