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Modesto is one of the few large cities in the Central Valley that restricts and prohibits its employees from speaking with the media unless they are supervised or have explicit permission.
Experts argue these rules and how they're enforced may violate the Constitution, could potentially be illegal and raise concerns about Modesto's transparency - a trait the city frequently claims is a core principle.
The policy doesn't apply to interactions with businesses, local community leaders or everyday citizens but requires all media inquiries to be funneled through the city manager's office. It also mandates employees file a report to the city manager of potential stories before they're published as part of a "no surprises policy" and requires media interviews to be supervised by a city official.
"I think it's simply unconstitutional to just prohibit city staff across the board from talking to the press without permission, particularly if they're allowing them to talk to the public without permission," said David Loy, legal director for the First Amendment Coalition.
However, city officials defended the policy, saying it is not designed to filter or hide information from the news media but rather to ensure it receives the most consistent and accurate information.
Mayor Sue Zwahlen said the policy isn't "problematic at all" and "seems like an organized way of getting accurate information out to our residents."
City Manager Joe Lopez said it is "designed to ensure that we're giving out the most up-to-date and consistent information to the media." However, he did add that there are other reasons.
"A very big role of ours is that there's no surprises," Lopez said. "I shouldn't be surprised … I shouldn't read a story (or) an article that I'm not aware of."
Modesto's policy does not apply to elected officials, who frequently talk to the media without permission or supervision. The city explained why elected officials are exempt from this policy by stating that "their ability to do so is separate from the city's administrative directives" because they were "chosen by the people."
Still, Lopez said he needs to inform elected officials before a story is published, so he can explain "why that story was relevant enough to be in the paper" and so that officials can anticipate questions from residents.
Modesto's media policy appears to be uncommon in the region. Across the nation, though, similar policies have been found unconstitutional and struck down in the courts.
What is the policy?
Modesto's policy works like this: According to documents obtained by The Bee and interviews with city officials, any city employee is instructed not to speak directly to the media.
Lopez said the city has "the right to direct the work of our employees during work hours."
All media inquiries for questions, comments or other information are to be directed to the city's communications department - typically its public relations manager, Sonya Severo.
The city's communications team then does its own research and communicates with the reporter about its findings.
Lopez said this isn't done to sanitize or filter information, but rather to help the media by giving it "more consistent and probably more information" than a reporter doing it on his or her own.
Lopez said he believes this helps reporters because "one department may not know what another department is doing" and that "oftentimes, our staff may not know the nuances that are happening across the organization."
The city will then set up interviews with employees it chooses, monitored by Severo or someone on her staff.
Severo said she needs to be present when reporters talk with city employees because she believes what city employees say can be taken out of context. Severo added that when a story is published, she needs to be sure her staff was "quoted appropriately."
"I'm just making sure that our city manager, at the least, is aware of what ... occurred in that interview, so that he's not surprised," she said.
What do experts say about the news media policy?
California State University, Stanislaus, political science professor David Colnic, who teaches a course on government transparency, said that while the city's policy is directed toward the news media, it is "absolutely an issue" the public should be concerned about.
"It gives me the impression that it's going to undermine our public workers' ability to communicate with what's happening in their units and what they're in charge of," Colnic said. "And that means the more apprehensive that our public workers are of all sorts, the less we're going to know what's really happening with the city of Modesto."
First Amendment advocates described the city's requirement for employees to report each interaction with the news media to the city manager's office as "very problematic" and "a red flag."
When city employees talk to the news media, supervised or not, they have to report to Lopez's office with what's known as a "media flash." This document was obtained by The Bee.
It is an email template that asks an employee questions about the interview and requires the worker to detail what a reporter asked, what the employee answered and "How could the city and/or public be affected by the story; is there potential for backlash?"
Lopez said this part of the policy was designed "so that information funnels from (his office)" and that "everybody is informed about what's being said publicly."
Loy said this and other aspects of Modesto's policy create a "chilling effect" on city employees that forces them to self-censor.
None of these steps are required for the public, though, only members of traditional news media. Modesto residents are routinely referred to city employees and have unrestricted access to the information they provide. That selective application is an aspect of the policy that attorneys say could be illegal.
Karl Olson, a First Amendment advocate and attorney for McClatchy Media, said Modesto's news media policy and how it's enforced violate not only the First Amendment but also the rights of city employees.
"(It) just seems to me like a pretty blatant effort to kind of sanitize and censor what city employees say," said Olson. "(It) kind of, not so subtly, requires them to toe the line of higher-ups and management."
Loy said the city barring employees from speaking to the news media without permission is "an unconstitutional prior restraint" that could be avoided by allowing employees to speak to the press if they clarify it's on their own behalf.
But the fact the public can speak to city employees without any of these rules was also a concern to Loy. "The First Amendment does not generally allow the government to treat the press worse than it treats anyone else," he said. "The First Amendment doesn't necessarily guarantee special rights or privileges for the press, but it should prohibit discriminating against the press and treating the press worse than any member of the public."
City officials defended the distinction between their communications with the news media press and the public by stating it is "essential to distinguish between different types of public engagement."
According to an email sent to The Bee by the city, traditional news media outlets such as radio, television and newspapers "report objectively, ask probing questions and provide coverage that is balanced and informs a large audience locally" and "are highly visible and have editorial accountability."
Constituent inquiries, on the other hand, are "often related to personal experiences or services," according to the email. If businesses and community organizations want unfettered access to city employees, they can as well. The city said those requests typically involve "collaborative projects, requests for sponsorships or service-relation questions."
"Most often, these types of inquiries don't adhere to journalistic standards or obligations. If information is shared, it tends to have a smaller reach through emails, social media, and/or community newsletters designed for their intended audience," reads the city's statement.
Similar examples in other municipalities
In 2003, Minneapolis Mayor R.T. Rybak's policy requiring public employees, including police officers, to clear news media requests through the city's communications director prompted a letter from the American Civil Liberties Union.
The letter deemed Minneapolis' policy unconstitutional and said it legally "stood on shaky ground." The letter stated the city's policies had "softened" within the 24 hours before the letter was written.
The ACLU also cited two instances where similar policies were struck down in court.
In 2001, a federal judge in Rhode Island declared the Providence Police Department's policy preventing police officers from talking to the news media without prior approval of the police chief was unconstitutional. A similar policy that applied to employees of a state-funded hospital in West Virginia was lifted after a settlement.
Modesto City Attorney Jose Sanchez defended the legality of the city's policy, saying it does not interfere with employees' First Amendment rights and that employees can speak to the news media when speaking in their "personal capacities" and not as part of their official duties.
Sanchez cited the Supreme Court decision Gacetti v. Ceballos, which ruled that government employees who speak as part of their official capacities are not protected by the First Amendment. However, advocates have pushed back on this, saying it would apply only to employees whose official duties include speaking to the news media.
"I don't think it provides support for their position," said Olson. "City employees should be free to talk to (media). They can always make clear that they're speaking on their own behalf… that they're not speaking on behalf of the city," he said. "But when they need the approval of higher-ups to even speak, it discourages them from voicing legitimate concerns they may have about city policy or the conduct of upper-level city officials. It discourages democracy."
"The First Amendment exists for a reason"
Loy said that while this policy directly targets the news media, it affects the public indirectly. While the public doesn't have the time, energy and resources to be a constant watchdog, the news media does, he said. Preventing the news media from developing sources with line-level employees blocks it from carrying out one of its core functions, Loy said.
"The press is enshrined in the First Amendment precisely because the framers understood the vital importance of the press in educating and informing the public, speaking truth to power and holding the government accountable," he said.
Colnic said that most Modesto residents don't have firsthand knowledge of "what's working, what's not and why," adding that people often rely on the news media to deliver that knowledge. The sources of the knowledge, Colnic said, are line-level city employees.
"We can be critical of the press, and many of us are, for various reasons. But when it comes right down to it, the First Amendment exists for a reason, and that reason is that the press helps to identify things that we cannot directly experience," said Colnic.
Zwahlen agreed that the news media plays an important role in a democracy, even a local one, but stood by the city's position that its policy is designed to help, not hurt.
"As a government agency," she added, "we're responsible for making sure that our residents get the most factual, accurate, and in times of emergency, timely information possible."
Zwahlen also said she is concerned about potential blowback if residents of Modesto began to question the city's communications policy or form negative opinions about it. The mayor said any notion that the public is receiving inaccurate information as a result of its communications policy is "absolutely false."
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