In another move that could buck Beacon Hill norms, state Auditor Diana DiZoglio says she will investigate the use of nondisclosure agreements in settlements across state government to determine how much taxpayer money has been spent to hide harassment and other misconduct.
The audit, DiZoglio said, is expected to cut across an array of state agencies and could realize the former lawmaker’s long-sought goal of detailing the extent that agencies have relied on nondisclosure, nondisparagement, and other agreements in settlements with current or former employees.
DiZoglio advocated for banning their use during her 10-year tenure in the Legislature, and had unsuccessfully pressed her predecessor in the auditor’s office, Suzanne Bump, to conduct a similar audit in 2019. Bump said at the time that such an investigation was “not feasible.”
The goal, DiZoglio said in a Globe interview, “is to shine a light” on how much state entities have spent on “potentially covering up issues such as harassment, discrimination, or abuse through the use of silencing agreements.”
The review, she said, is expected to cover “all state agencies — the administration, the Legislature, all offices, including our own” and will be part of a wider audit of state settlements.
A nondisclosure agreement typically bars or restricts a party from discussing the terms of a settlement. Sometimes, the language can go further to prohibit a former employee from disparaging a former employer. For example, a severance deal the MBTA signed in 2009 barred a former employee from saying anything that “criticizes the MBTA” or any of its employees, the Globe has reported.
DiZoglio, a Methuen Democrat, campaigned last year on launching an investigation into so-called NDA’s if elected. Her office has yet to begin contacting state agencies about its plans, but DiZoglio included the upcoming review on a list she provided to the Globe showing some 70 audits her office is actively handling.
Questions remain about the exact shape of the probe. Her office did not say Thursday how many years of settlements it intends to review. And while DiZoglio intends to include any such agreement entered into by the Legislature, she said her legal team is reviewing whether that can be done as part of her already public audit of the House and Senate.
Legislative leaders have reacted coolly to that announcement, and, should they not comply, it’s possible a judge could ultimately decide whether DiZoglio has the legal authority at all to audit the Legislature, which is not expressly included among the agencies under her office’s purview.
DiZoglio said officials in her office are consulting with the US Government Accountability Office about the best way to analyze the use of nondisclosures across multiple state agencies.
She said she is also reviewing a similar audit in Montana to “help inform” her approach. That review, conducted by Montana’s Legislative Audit Division, found that in 171 state settlements between 2014 and 2018, 65 percent included a non-disclosure or confidentiality agreement. State officials told audit staff that such language was “often part of their standard settlement agreements,” according to the report.
“This limits the transparency of settlement activity to the public,” the report concluded.
A spokeswoman for Senate President Karen E. Spilka declined to comment on whether the Senate would comply with requests for information about nondisclosure agreements. Spilka indicated last week that the Senate does not intend to comply with the wider legislative audit, arguing that the chamber is constitutionally allowed to both manage its own business and set its own rules “as the separation of powers clause dictates.”
A spokeswoman for Governor Maura Healey said Thursday her office would review any request it receives for information about the use of nondisclosure agreements in her office.
House Speaker Ronald Mariano‘s office did not immediately respond to questions Thursday.
As a state representative, DiZoglio in 2018 spoke out on the House floor against the use of nondisclosure pacts in violation of an agreement she had received after being fired as a legislative aide amid innuendo and what she described as harassment. After DiZoglio, then a legislative aide, and a legislator entered an empty House chamber during a late-night party in the speaker’s office in April 2011, rumors began circulating that they had engaged in inappropriate behavior, sparking a House investigation.
DiZoglio said that in the wake of that incident, her workplace became a hostile environment, with people in the State House gossiping about her sex life, calling her names behind her back, and even propositioning her. She said the hostility continued even after a House inquiry found that she and the legislator, state Representative Mark Cusack, had not behaved inappropriately nor broken any rules.
DiZoglio’s boss at the time, then-Representative Paul Adams, later fired her.
The day of DiZolgio’s floor speech, the House rejected an amendment she filed to ban the use of NDAs in the chamber, and instead passed language allowing them under certain conditions, such as limiting them for a “finite period of time” agreed to by both sides.
Then-House Speaker Robert DeLeo said at the time that 33 outgoing House employees had signed agreements in exchange for a severance payment since 2010, though none were to settle complaints of sexual harassment.
In 2019, the Massachusetts Senate adopted its own ban on the use of nondisclosure agreements in that chamber after overwhelmingly passing a proposal from DiZoglio, who, by that time, had won a Senate seat.
DiZoglio and state Representative Alyson Sullivan-Almeida, an Abington Republican, later that year asked Bump to conduct her own review of how many nondisclosure agreements had been used in recent years in state government, and how much taxpayer money went toward them.
But while Bump agreed that a NDA “should not be used to buy the silence of abuse victims,” a spokesman at the time said it was “not feasible” for the auditor’s office to launch such an inquiry.
Such an audit would require the office to review the personnel files of all those who signed an agreement “to determine which ones were used in a case of sexual harassment, as opposed to other on-the-job disputes or grievances,” Bump aides said.
Now leading the office, DiZoglio said her audit would be far-reaching.
“We are going to be looking at, hopefully, all of the agencies under our purview,” she said. The state tracks settlements it has agreed to, but “nowhere,” DiZoglio said, is there publicly accessible data on “how many of those agreements include non-disclosure language.”
The Globe in 2011 found that state agencies had sworn scores of workers to secrecy as part of a review of more than 150 severance and settlement agreements. More than half of those included a confidentiality or non-disparagement clause, and one in five contained both, the Globe reported.
In one instance, a nursing assistant at UMass Medical received $150,000 in 2008 after she sued the school for sexual harassment by a supervisor.
Matt Stout can be reached at firstname.lastname@example.org. Follow him on Twitter @mattpstout.