On Wednesday, Massachusetts State Auditor Diana DiZoglio issued a report on the use of settlement agreements with employees, including non-disclosure and non-disparagement clauses by 21 governmental agencies. The report covers 2019 through the end of 2024, and found the agencies in question — which include state universities and colleges, independent and quasi-state agencies, and constitutional offices — entered into over 260 such agreements that cost taxpayers nearly $7 million. Following her report, the Democrat, who took office in 2023, is now calling on state leaders to pass legislation that would ban inappropriate use of publicly funded NDAs. Speaking with WAMC, DiZoglio said the issue is deeply personal.
DIZOGLIO: When I was a legislative aide, I was sexually harassed in the House of Representatives years and years ago. I was a younger woman in my 20s at the time, and following that incident, I was let go from the State House and actually required by the Speaker's Office to sign a taxpayer funded non-disclosure agreement barring me from speaking about anything I'd seen, witnessed, or experienced behind those closed doors up on Beacon Hill among some of the most powerful politicians in Massachusetts. But I didn't let them get rid of me, I didn't let them keep me quiet, and I didn't leave state government, obviously, like they told me to do. I instead decided to run for state representative myself, and a little over a year later, made my way back into that same chamber that dismissed me and tried to silence me as the youngest woman serving in the House of Representatives. Since that time, I have been working overtime to fight for increased transparency and accountability in processes such as this where there is little to no accountability, not just in the House of Representatives, but across state government when it comes to the use and abuse of taxpayer funds to cover up misdeeds and unethical and unlawful behavior, protecting powerful politicians or others who are in positions of power throughout state government, while silencing employees about, again, unethical or unlawful behavior.
WAMC: Leaning into the actual audit that we're talking about today, you looked at over 20 state agencies and found something a little under $7 million in taxpayer funded NDA settlements and what have you. Can you break down some of the biggest takeaways, how this audit sort of corresponds with that larger goal you were talking about just a moment ago?
Certainly. In the last audit that we conducted of these issues, we looked at executive branch agencies and where executive branch agencies need to do better with respect to oversight of the use of these settlement agreements, including non-disclosure language and confidentiality clauses. And on the heels of that audit report, the Governor did, in response to our report, change executive branch policies, banning the abuse of these taxpayer funded NDAs across executive branch agencies in policy. But when we did this most recent audit that was just released, we looked at independent state agencies such as constitutional offices, we looked at colleges and universities, and we looked at quasi-public entities. None of those entities are required to follow the executive branch policies that the governor implemented after our last report, and we did find that there were several instances where state regulation was violated, where settlements weren't reported to the comptroller's office as they needed to be, and we found many instances where these agencies did not have their own policies surrounding the use of these agreements, which allows for the potential that these agreements can be abused to cover up unethical or unlawful behavior. If you don't have policies around these issues, it can make it more difficult to provide oversight. So, we did call on these agencies to implement policies, to follow state regulation, and some of them say they're going to be doing that moving forward. Others, not so much.
Now, one of the biggest examples you brought up was Massport, the Massachusetts Port Authority. Can you tell me a little bit about your findings around Massport and the way they use settlements and some of what was concealed behind NDAs in how they implemented those settlements?
in Massport, when we went to go conduct a review of their personnel records, which our office has the statutory authority to access in order to make sure that the law is being followed and that Massport is acting in an ethical and legal manner, we found that they actually were denying us 10 personnel files that we legally have the right to access, causing concerns that some information was being hidden, either purposefully or unlawfully. Our office, under Chapter 11, Section 12 of the Massachusetts General Laws provides oversight to state entities, including quasi-public entities, and has never experienced an issue with accessing personnel records throughout the history of the auditor's office with these state entities, until just last year, where the Governor tried to invoke this, and now Massport is seeking to invoke this. And they did, and they unlawfully withheld 10 personnel records from our office. This was occurring while we simultaneously had identified a nearly $1.4 million settlement that was actually executed by Massport in 2022 that utilized confidentiality and non-disclosure language, concealing a host of allegations, including gender-based discrimination, disability-based discrimination, unequal pay, disparate treatment, and publishing false and damaging statements. That's a lot of money that Massport expended to ensure the silencing of these issues. It's unacceptable. And now, Massport did come out and say that during the course of our audit when we were uncovering all of these things that they were now going to implement the executive branch agencies policies banning the use of these confidentiality clauses. But I am calling on the governor and legislature to pass a law, because agencies can violate their own policies without any repercussions. So, we need to make sure that there is a law passed that bans the abuse of these agreements and that there are some teeth in that law.
I spoke with a Massport representative who pushed back on aspects of your statements and press release. They defended their actions as being fully cooperative with your team, they noted they don't use taxpayer funds, they use their own revenue, with a few the exception of specific infrastructure grants. They claim that, quote, ‘a small number of individuals objected to the personnel review files,’ which they said is their right, and they notified your office of this. They also said they were had not seen a complaint by your office, and that they only learned about your intent to sue them yesterday, during the press conference about this audit. Can you respond to some of those claims from Massport?
Massport generates revenue using public land and public resources. So, they do use the public's money when they are doing business. They're not a private entity like Walmart or General Electric. That's why we actually have the authority to audit them. So, that's my pushback there. I would say that with respect to the other issues that they raised- Look, we told them time and time again through the course of this audit that we had the legal right to access those 10 personnel records that they were unlawfully withholding them, and we did send a letter to the Attorney General [Andrea Campbell] asking for her to approve litigation and to allow us to get our own attorney because the Attorney General has conflicted herself out by previously advising the governor to also restrict our access to documents and herself citing the same privilege of [Fair Information Practices Act], which is nonexistent when it comes to the oversight authority of the Office of State Auditor. Now, the Attorney General is not the entity that we are filing a lawsuit against, because even though the Attorney General did improperly cite their ability to impose this FIPA restriction on our office, they actually did ultimately end up giving all of the records that our office requested. That's why we're not filing a lawsuit against the Attorney General's Office on this matter. But what we are doing is, we're asking the Attorney General to grant us our own attorney, because she has conflicted herself out by citing that same issue, and allow us to have independent representation to sue Massport, who did withhold 10 personnel records. And I'm sure that they are going to want to have future conversations about this, but we are seeking litigation to remedy this because we've had conversations for over a year with Massport that have resulted in their willingness to continue to break the law with respect to Chapter 11, Section 12 and withhold records.
Now, lastly, I spoke to one legislator about your request for a law that would ban the abuse of public funding for these NDAs, and they brought up the concept that they would want to make sure that for anyone who wants to really make sure they have anonymity and privacy, there are still guidelines in place to make sure that the positive benefits of an NDA, to shield someone from publicity or pushback or some broader negative impact from them seeking a settlement, were still getting that protection. What are your thoughts about walking that line between transparency and protecting people in the midst of these settlements?
I think that it's a good point, and I've said for years that there is a way to protect the privacy of an individual who may be a victim or a survivor of some sort of harassment or discrimination in these agencies, but the way to do that would be to redact that person's name who was the person on the receiving end of that harassment or discrimination and not, instead, force them into silence and withhold their severance pay or withhold their settlement from them if they don't sign. What's happening right now is, a lot of these employees are given an ultimatum. A lot feel coerced and are told that they are not going to be able to collect their severance package unless they waive their right to speak about what happened. That is wrong. So, if a victim of harassment or abuse wants to have their name redacted from these agreements, that is something that I would be supportive of as someone who myself went through this experience. But in no way, shape, or form should these settlements be hung over their head and severance pay be hung over their head as a tool to manipulate them into waiving their rights to talk about something if they want to speak about it.
Auditor, thank you so much for your time today. I really appreciate it.
Thank you so much. We'll talk to you soon.
