Some business practices should be embraced by the public sector.
But a lack of transparency isn’t one of them. So it’s disappointing to hear House Speaker Robert DeLeo defend such a policy by describing his past use of nondisclosure and nondisparagement agreements as “part of doing business.” It shouldn’t be.
Lawmakers are elected to represent the people, and the people have every right to know what their representatives are doing in what is essentially their house.
The issue came up earlier this month, when state Representative Diana DiZoglio of Methuen took to the floor of the House to offer an amendment banning nondisclosure and nondisparagement clauses in House severance agreements. In doing so, DiZoglio broke a nondisclosure agreement she had signed in 2011 as part of a severance pact negotiated after she had been terminated as a House aide. According to DiZoglio, she was silenced in the aftermath of harassment she experienced on Beacon Hill.
DeLeo’s office acknowledges that House counsel James C. Kennedy and DiZoglio’s attorney negotiated a termination and severance agreement that included “boilerplate” confidentiality language, which applied to DiZoglio as well as to her former employer. However, according to DeLeo’s office, when the agreement was negotiated, neither DeLeo nor anyone in his office knew DiZoglio had been harassed. That may be true. But, DiZoglio’s assertions put a spotlight on a bigger issue: government’s use of so-called NDAs.
According to information supplied by DeLeo’s office, the House has executed 33 employment-
related agreements since Jan. 1, 2010, all of which contained the same boilerplate confidentiality language as DiZoglio’s. Fifteen were executed with employees who were laid off as part of a December 2009 reduction in force; an additional 18 employment-
related agreements were executed between Jan. 1, 2010 and Dec. 31, 2017. According to DeLeo’s office, “None of those agreements were to settle complaints of sexual harassment, but rather a formalized process for providing terminated employees with a modest severance benefit.”
The rules package adopted recently by the House includes language restricting the future use of nondisclosure and nondisparagement agreements in sexual harassment settlements. In doing so, DeLeo’s office says it relied on policy advice from victims’ rights groups, which believe sexual harassment victims should be able to keep their identities private, along with details of their complaint. Under the new rules, only victims of sexual harassment can initiate the negotiation of confidentiality and nondisparagement agreements.
But these agreements also protect the powerful from public scrutiny and criticism. And that’s not something for which the public should be footing the bill. As DiZoglio said on the House floor, “These are public dollars that are being used to silence people because they might be critical of public elected officials in this chamber. We should not be in the business of silencing our critics or covering up any harassing or discriminatory behavior, or even giving the appearance of doing so with public funds.”
The #MeToo movement has forced the Massachusetts Legislature to look into the mirror and try to change what a House-led investigation described as “an imbedded power dynamic . . . which discourages staff from reporting incidents of harassment due to fear of retaliation and of jeopardizing one’s career.” Under DeLeo’s leadership, the House has taken a good first step in changing policy in order to change the prevailing mindset. Whatever the reason for negotiating a severance package, nondisclosure agreements are a throwback and do nothing to advance the cause of change.