New Policy Implements Gag Order On Nantucket's Town Employees

The town has rolled out a new “media engagement policy” that places restrictions on municipal employees’ interactions with members of the press, and nearly all town staff are being required to sign on to the new policy.

Adopted by the town administration on Aug. 7, the policy was put in place without prior review or approval by the Select Board, nor any input from the public or press.

Under the policy, any town of Nantucket employee contacted by a media organization “must notify either the Town Manager, an Assistant Town Manager, or the Communications Office immediately” and provide them with information about the inquiry.

The policy states that the only town employees authorized to engage with the media as official representatives of the town are the town manager, the assistant town managers, the town’s communications department, and department heads. Others may be permitted to speak to the media, but only with the prior written approval of the town manager or assistant town manager.

The existing practice in place for decades has allowed town employees to answer questions and provide context to the press for stories without the filter of the town administration or the newly-formed town communications department. That practice is now coming to an end.

A town employee shared a copy of the policy with the Current on Tuesday through their personal e-mail, asking to remain anonymous.

“This new policy that the town is forcing all town employees to sign is a violation of the Constitution,” they wrote. “I think the public should be aware of what the town directors are forcing on employees. Please keep my name out of it because I do love my job and want to keep it.”

Town Manager Libby Gibson told the Current that the new policy is consistent with those of other public agencies and organizations and that because it is considered an “administrative policy,” its adoption did not require the prior approval of the board.

However, previous administrative policies - such as the town’s social media use policy adopted in 2013 - were brought before the Select Board for review, discussion, and a formal vote in an open public meeting.

But, Gibson said, “that practice is no longer common as the Board is focused on strategic planning and policies which relate to overall governance of the community and not operational personnel-related policies.”

Both Select Board chair Dawn Hill-Holdgate and vice chair Brooke Mohr did not return messages seeking comment about the new policy.

Select Board member Matt Fee initially told the Current he had “no comment.” He later commented “Employees can still comment as individuals, just not representing the town unless designated. I’ve got mixed feelings. Not sure (the policy) has really changed current understanding and direction much. Just put it in writing. Can see how it may be spun differently. Department heads can still speak.”

As for the need for the new policy and why it is being implemented now, Gibson told the Current “It is one of several personnel policies being adopted and/or updated as we are working to improve our on-boarding process with new employees; and, improving our communications to the community to be sure we are providing consistent, clear messaging that properly conveys what the Board and Administration are initiating/planning/promoting/explaining, whatever the case may be. More effective communication is a topic that the Select Board discussed last November in its annual Governance meeting. The Board has also discussed in prior Governance sessions how to streamline processes so that it does not get bogged down in the day-to-day administration of the Town and can focus on strategic issues I am advised that our policy is consistent with best practices and is in line with those in other large organizations.”

But according to the Poynter Institute, a non-profit journalism school and research organization, such policies likely constitute a First Amendment violation.

“Although the practice of gagging public employees from giving unapproved interviews is pervasive across all levels of government, decades’ worth of First Amendment caselaw demonstrates that blanket restrictions on speaking to the media are legally unenforceable,” wrote Attorney Frank D. LoMonte, who teaches media law at the University of Florida and directs the Brechner Center for Freedom of Information, in a story published by Poynter. “Four of the nation’s 12 federal judicial circuits (regional appeals courts, one rung below the U.S. Supreme Court) have declared workplace gag rules unconstitutional. Two others have hinted strongly at the same result. No federal circuit has ever upheld a ‘don’t talk to the media’ policy in the face of a First Amendment challenge.”

Any town of Nantucket employee who violates the new policy will be subject to potential disciplinary action up to and including termination.