A first-term senator is pushing to ban the use of nondisclosure agreements for state employees in most circumstances, allowing them to speak freely about the details of their employment.
“I think when it comes to government employees and the businesses of the state, the name of the game is transparency,” said Sen. Barbara Kirkmeyer, R-Brighton. “The public is entitled to know what public employees are doing and what the government is doing.”
Kirkmeyer cited as her inspiration a release and settlement between the Colorado Secretary of State’s Office and Jenny Flanagan, former deputy secretary of state under Jena Griswold. The document, signed on Jan. 16, 2020, indicated that the parties “will not make any disparaging remarks” about each other.
“We’re signing off on settlement agreements and they have non-disparagement clauses in them or nondisclosure clauses that essentially says, 'we won’t terminate you as long as we all agree to say nice things about each other. Then we’ll let you resign',” said Kirkmeyer, a former Weld County commissioner who was elected in 2020.
A spokesperson for Griswold said the office has only had one such agreement, and the office is reviewing Kirkmeyer’s legislation.
Bryan E. Kuhn, an employment law attorney in Denver, explained that while the perception of nondisclosure agreements, or NDAs, is that they benefit employers by muzzling workers, such provisions are actually in demand among employees.
“A lot of people just don’t want it brought into the public square, period,” he said. “I don’t know if I’ve ever had a client in my 20 years of practice say, ‘I don’t want the confidentiality agreement.’”
Nondisclosure clauses prevent workers from sharing certain types of information about their employer or workplace. Originally used to protect trade secrets, the National Women’s Law Center reports that now more than one-third of workers in the United States are subject to such conditions. Non-disparagement agreements prohibit public criticism or disclosure of negative information.
In the wake of the global #MeToo movement against sexual misconduct, 11 states enacted laws to bar employers from requiring NDAs that cover harassment, discrimination or sexual assault, according to the center.
Washington state lawmakers enacted legislation in 2018 to prevent employers from requiring workers to sign NDAs that are intended to suppress reports of sexual harassment or sexual assault in the workplace. The bill sponsor, Senate President Pro Tem Karen Keiser, said the proposal from Colorado makes sense for the public sector.
"I particularly find nondisclosure agreements in public employee situations to be quite suspect, especially if it's non-disparagement on the way out," said Keiser, a Democrat from Des Moines in the suburbs of Seattle. "Obviously there is confidential information in legal proceedings that might have different standards. But a secretary of state's office? No."
Kirkmeyer’s Senate Bill 23 would make three exceptions for confidentiality: if the employee involved in the NDA has a privacy interest in the information being disclosed, if federal or state law requires nondisclosure, and if certain details are part of investigations or security arrangements.
Although SB23 would make NDAs unenforceable only for state government employees, it is a step in the right direction to prohibit the gagging of workers, said Frank D. LoMonte, professor and director of The Brechner Center for Freedom of Information at the University of Florida.
“I don't think any judge is going to say that you can make an employee sign away the right to blow the whistle on dangerous criminal behavior. But even the presence of a broad NDA in an employment agreement can be intimidating, especially for a person without legal expertise who's already facing leaving a job under difficult circumstances,” he said.
Shortly before Kirkmeyer introduced her bill, a memo in Colorado’s Judicial Department became public, indicating that several instances of misconduct, including by judges, had gone unreported. Under one such allegation, a Court of Appeals judge signed a nondisclosure agreement with his clerk over instances of harassment, in order to allegedly keep his record clear for potential selection to the Supreme Court.
The Denver Post later reported the identity of the judge to be now-Justice Richard L. Gabriel.
“If there's misconduct inside a state or federal agency, that can compromise the public's interest in honest and effective government,” LoMonte added. “So it shouldn't be controversial to say that we don't want government agencies using their authority to silence complaints about wrongdoing.”
While more sunlight on government activities is always better, said Jesse K. Fishman, an employment law attorney at HKM Employment Attorneys in Denver, she hopes the bill, if it were enacted, would result in more whistleblowing on wrongdoing.
“The only potential downfall is how those exceptions play out. They could potentially be broadly construed,” said Fishman.
Kuhn wondered whether the bill would discourage settlements between employers and their workers and encourage more lawsuits. He believed it made more sense to apply the prohibition on NDAs to the public sector, rather than the private, and mentioned the benefit of catching serial offenders who might otherwise be protected through confidentiality.
He did offer an alternative: mandating that state agencies report their NDAs to a central clearinghouse.
"There might an office or agency that stands out. The red flags can come up that way, too," Kuhn said.
Kirkmeyer said she did not know whether any states had policies similar to hers, and did not model SB23 after another law. She referenced the pattern under the Trump administration of White House staff signing nondisclosure agreements, which the ethics lawyer under President Barack Obama called unethical and likely illegal.
“I remember hearing a few years ago where people had issues with President Trump having nondisclosure agreements, right? And yeah, I agreed with them. I don’t think at any level of government you should be having nondisclosure agreements unless you are ensuring that they don’t disclose security or privacy issues,” Kirkmeyer added.
The governor's office did not respond to an inquiry about the extent of NDAs in the executive branch. SB23 is scheduled for a March 18 hearing before the Senate Judiciary Committee.