Attorney General Bonta Announces Stipulated Judgment with Kern County Resolving Free Speech Violations

OAKLAND – California Attorney General Rob Bonta today announced that the California Department of Justice (DOJ) has entered into an agreement for a stipulated judgment with Kern County regarding the County’s policies and practices related to free-speech rights guaranteed under the California Constitution and the First Amendment of the U.S. Constitution. The stipulated judgment, which is subject to court approval, follows a comprehensive civil rights investigation by DOJ to determine whether the County violated the free-speech rights of contractors or employees. While the investigation found that the County did not engage in a pattern or practice of violating free-speech rights, it did find that the County violated the free-speech rights of a coalition of community-based organizations and a small business by refusing to enter into contracts with them because they had engaged in constitutionally protected free-speech activities—specifically, participating in the public debate about “defunding the police,” and expressing support for defunding particular police agencies. The agreement announced today resolves DOJ’s allegations outlined in a complaint filed today with the Kern County Superior Court. As part of the agreement, the County will engage in a comprehensive set of actions to protect the rights of contractors, employees, and employment applicants to freedom of speech, to freely associate and assemble, to petition the government for redress of grievances, and to instruct representatives.

“As Attorney General, I am committed to enforcing Californians’ rights to free speech,” said Attorney General Bonta. “The California Constitution guarantees the right of every person to have the liberty to speak, the ability to assemble freely, and the right to petition government. With today’s agreement, Kern County is committing to necessary reforms to ensure that free-speech rights are protected uniformly and in accordance with the law. My office is committed to ensuring these constitutional rights be protected for the people of Kern County and California.”

In September 2021, DOJ began an investigation to determine whether the County violated the free-speech rights of a coalition of community-based organizations and a small business when it refused to enter into contracts with them that had been negotiated and approved by the County’s Public Health Services Department. DOJ also investigated whether the County has engaged in a pattern and practice of violating contractors’ or employees’ free-speech rights. 

During the course of the investigation, DOJ found:

• In October of 2020, the County refused to enter into contracts with certain contractors to assist with the County’s public health response to COVID-19 because of the contractors’ exercise of free-speech rights, including their free speech, association, and petitioning rights. The County did so even though the contractors were already working for compensation under the proposed contracts at the County’s direction.
• DOJ found evidence giving rise to the concern that some current and past Supervisors may have engaged in viewpoint discrimination in the past and that some may do so in the future when making contracting or other public funding decisions. 

• DOJ found that, in considering potential public contracts or other government funding opportunities, some Supervisors may have acted in the past, and may be prepared to act in the future, on the basis of an incorrect belief that 501(c)(3) charitable organizations with tax-exempt status are not permitted to engage in any political activity, and that the County is therefore lawfully justified in discriminating against the organizations the County deems to be politically active. 
• DOJ did not find evidence that the County engaged in a pattern or practice of free-speech rights violations relating to contractors or County employees during the time period covered by the investigation.

The parties worked together to negotiate and agree upon a comprehensive plan that addresses DOJ’s findings and other areas of concern identified by the Attorney General during its investigation. This plan is embodied in the stipulated judgment that DOJ will seek to have entered by the Court. The stipulated judgment provides for the County to take remedial actions over the course of a minimum three-year oversight period, with oversight to be provided by DOJ and a third-party Free Speech Expert jointly selected by the parties. The Court shall retain jurisdiction during the oversight period in order to enforce the parties’ agreement as set forth in the judgment. Under the stipulated judgment, Kern County will be required to, among other things:

• Adopt and disseminate a Countywide Free Speech Policy approved by DOJ, stating the free-speech rights of contractors, employees, and applicants for employment, under the California Constitution, and the First Amendment of the U.S. Constitution. The Free Speech Policy will be posted on the Kern County website, in designated physical locations, and in County-issued Requests for Proposals and other solicitations for contract or grant proposals, and attached to all County contracting forms.
• Designate a County Complaint Coordinator, approved by DOJ and trained by the Free Speech Expert, to receive, investigate, and resolve complaints of violations of the Free Speech Policy from contractors, employees, and applicants for employment, subject to approval by the third-party Free Speech Expert.

• Develop and provide annual training to members of the Board of Supervisors and other County personnel on the Free Speech Policy and the County’s obligations regarding free-speech rights under the law, and training on the rights of a tax-exempt, 501(c)(3) organization to attempt to influence legislation without losing its tax-exempt status, subject only to specific limitations set forth in the tax laws. 

A copy of the complaint and agreement for entry of judgment are available here.