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Denver attorney Casey Leier said state employees he's represented were not only encouraged, but were often required to sign non-disclosure deals with the state. He says things have gotten even worse. (Timothy Hurst/The Gazette)

With increasing frequency, Colorado is mandating its employees — some of them whistleblowers calling out misconduct or malfeasance — sign non-disclosure clauses in any financial settlement they make with the state, effectively silencing them from ever letting anyone know what happened in their cases, according to interviews and dozens of records reviewed by The Gazette.

In other instances over the past three years, records show state employees who faced discipline for alleged misconduct were instead given lucrative send-offs and assurances of the government’s silence through similar non-disclosure deals.

Confidentiality agreements have the potential to bury evidence and prevent investigations of crimes, discrimination, sexual harassment and wage inequality, leading to a growing chorus of lawmakers and advocacy groups calling for them to be abolished.

The Gazette also uncovered dozens more examples where state employees agreed to the non-disclosure clauses, sometimes for a payment of as little as $2,000, with little public record available to explain why.

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Since 2019, there have been more than 80 settlement agreements with state employees totaling more than $4 million in taxpayer payouts, each with a non-disclosure clause preventing them from discussing it with anyone, records show.

Critics say the agreements are little more than government efforts to prevent the airing of its dirty laundry. The few proponents of the practice say it’s an effective method of trimming the number of potential claims that would be filed if word of the settlements and their dollar amounts were to easily become public.

“I absolutely hate them. They are so hypocritical,” said attorney Diane King, whose clients have signed some of the deals. “Public policy is that the public should know this stuff, but those who know what happened aren’t allowed to talk about it. That’s just muzzling and it’s offensive. But we routinely have to agree to it if they want to settle.”

Public records laws stop a government agency from hiding the amount of a settlement or with whom, but do not extend to the reasons or underlying complaints behind a settlement unless they are already in a public record such as a lawsuit or official complaint.

The Gazette was often forced to track down those other public records, sometimes via open-records requests when the documents could be found, to unravel the details behind taxpayer-funded financial settlements. Those settlements have included:

• A $50,000 payment — $26,000 of it for his own “emotional distress” — to the state's former Parks and Wildlife director who retired this month after using a racially insensitive remark to a fellow employee at a conference earlier this year. That employee was separately handed a year’s salary — $75,634 — to resign.

• The long-time woman’s softball coach at Adams State University who was paid $62,000 — $10,000 more than his annual salary — to resign following a Title IX investigation that determined he bullied and retaliated against his ballplayers.

• A Department of Education finance official who was paid nearly $183,000 to resign after complaining about internal control problems that he claimed involved the misuse of public funds.

• A $750,000 settlement to seven women in the education department who each received more than $64,000 — and their attorney another $300,000 — to not sue the state after a male co-worker was convicted of a felony for taking up-skirt photos of them on the job.

• A Department of Human Services supervising nurse was paid nearly $384,000 to resign after being disciplined for disclosing unlicensed pharmacy technicians at Wheat Ridge Regional Center were dispensing medications without supervision.

• More than $160,000 was paid to an attorney at the Department of Public Health and Environment to resign after she claimed the lack of enforcement actions against some assisted-living facilities were the result of political connections.

• A $100,000 settlement to a Department of Corrections prison guard who repeatedly complained of harassment that included being handcuffed to a pipe by his bosses, having a firearm pointed at him, being arrested on ginned-up criminal charges, and being tasered while sitting at a prison computer.

Deals would be illegal

Nearly all the agreements would be illegal if they were with federal employees under federal law, legal experts say. Colorado has a law banning retaliation against an employee who properly discloses information to a whistleblower agency, but not a prohibition on silencing them with cash payments.

Zaid

Attorney Mark Zaid of Washington, D.C., said governments can make it appear employees need to sign non-disclosure agreements ".. when it's known that no such legal prohibitions actually exist."

"There are over-breadth steps taken by government -- state and federal -- to make it appear to employees that they are legally bound to maintain silence when it's known that no such legal prohibitions actually exist," said Mark Zaid, a Washington, D.C., attorney and national expert on non-disclosure deals. "Most people would think that if they want to settle they need to sign and won't believe anything to the contrary. Few would think to challenge it."

And the state is steadily increasing its mandate on requiring ND clauses in employee settlements, according to attorneys familiar with the practice who would only confirm the trend anonymously for fear of affecting negotiations with their clients.

Attorney General Phil Weiser’s office, which largely negotiates every settlement agreement with a state employee, denied coercing anyone into signing an ND clause.

“The Department of Law represents state agencies in state employee/employer disputes. In settlement negotiations, the department attorneys discourage the use of non-disclosure or non-disparagement clauses,” AG spokesman Lawrence Pacheco told The Gazette. “Some agencies opt to use them anyway depending on the extenuating circumstances.”

Attorneys who represent state workers, however, say that’s not accurate.

“In cases where I have represented state employees, the Attorney General’s office routinely not only encourages but requires the employee to agree to a non-disclosure provision in exchange for a settlement,” Denver attorney Casey Leier said. “We used to have some ability to negotiate the exact scope of the non-disclosure, but this year, the state has changed its position and appears to be requiring a complete and total ban on any speech by the employee about their case and what they went through.”

Several employees interviewed by The Gazette say they frequently felt pressured to sign the documents while others said being silenced should not be allowed.

“They just make you feel as if you have to, that it’s part of the deal, that everybody does it,” said a state employee who refused to sign an NDA and agreed to discuss it only if their name was not used for fear of additional retaliation. “If I feel like they’re doing something wrong, I should be able to say something, otherwise nothing will ever get fixed.”

Said another: "I was just done with all the hassle, all the problems, all the threats. Signing was the easiest way for it to all go away and I could just get on with my life."

Efforts by Colorado’s legislature to pass a law prohibiting all non-disclosure clauses with state employees have been unsuccessful as recently as two years ago. Colorado is among a majority of states that allow non-disclosure settlements with public employees.

Three states — Oregon, Washington and California — recently joined a growing number of others prohibiting the practice, largely the result of the #MeToo movement. After a wave of sexual misconduct allegations were made against powerful men such as movie mogul Harvey Weinsten, non-disclosure agreements that bar victims from discussing past claims of harassment or abuse came under fire nationally, with calls from politicians and advocacy groups to abolish them.

“This is concerning, particularly in cases of discrimination, harassment, and wage inequality, because the public deserves to know when this illegal conduct is occurring,” Leier said. "For instance, we know that when one woman has been harassed, we often later learn that there were many other women who were victims of the same treatment. The state can silence individual employees one by one, but the only way to stop discrimination in the long run is to bring the root cause to light.”

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Colorado Secretary of State Jena Griswold signed a non-disclosure deal with her former Deputy Jenny Flanagan that only allowed Flanagan to use specific talking points when discussing the office. (Timothy Hurst/The Denver Gazette)

Non-disparagement deals common

The Gazette even found non-disparagement agreements in which both the employees and the state agreed not to say bad things about each other. One of them, involving Secretary of State Jena Griswold, even restricted the employee, then-deputy Secretary of State Jenny Flanagan, from saying anything outside of a list of specific talking points outlined in the agreement.

Before joining Griswold’s staff, Flanagan was vice president of state operations for Common Cause, a group that touts its efforts at keeping government transparent and accountable.

Neither Flanagan nor Griswold responded to efforts to reach them.

A similar non-disparagement and non-disclosure agreement exists between Erin Mewhinney, the former director of early care and learning at the Office of Early Childhood for the Colorado Department of Human Services, and her supervisors in that division.

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Mewhinney was paid about $40,000 to resign in May 2021. There is no available document to explain why.

Yet her agreement appears to have been so cavalierly written that it restricts Michelle Barnes, the executive director of DHS, Mary Alice Cohen, the deputy executive director of the Colorado Office of Early Childhood, and Anne-Marie Braga, the deputy executive director of community partnerships at DHS, from saying anything bad about each other, but not about Mewhinney.

Mewhinney did not respond to efforts to reach her.

And when Christopher Castilian left the Great Outdoors Colorado Trust Fund (GoCo) in June 2021 after a four-year tenure as its executive director, he pocketed $52,000 and both sides agreed not to mention the agreement or even its existence to anyone. In exchange, Castilian agreed not to disparage anyone, including Gov. Jared Polis and his staff — and everyone at any level of state government in any department is barred from talking badly about Castilian.

Unlike the other settlements reviewed by The Gazette, however, Castilian’s does not carry a provision that the document is accessible under the Colorado Open Records Act. That’s because it did not go through the state controller’s office, which routinely ensures that language is contained in any separation agreement.

“As far as we are concerned, and as a matter of practice, settlement agreements don’t require an NDA, but must have a CORA clause,” said Doug Platt, spokesman for the Department of Personnel and Administration, which houses the Office of the State Controller. “The other sides of an agreement might require the NDA, but that’s not our business.”

Pacheco at the AG’s office told The Gazette that while other state agencies have agreed to the ND clauses, “The Department of Law has not asked any employees separating from the DOL to sign a settlement with a non-disclosure clause, and no DOL employee has signed one” while Weiser has been at the helm.

That’s sort of true.

The department in April finalized a $15,000 settlement with paralegal Tatyana Smith in which she agreed not to publicize any aspect of the agreement.

Smith had sued the department in U.S. District Court in Denver in 2020 claiming she was fired in retaliation for racial and religious discrimination she experienced in the department in the short five months she’d worked there beginning in March 2019.

Earlier claims she filed with the state’s Civil Rights Division over alleged racism and discrimination were dismissed.

The AG’s office said in the settlement document Smith was fired because of poor performance.

“This was actually to settle a lawsuit filed against the state, so it’s not really a separation agreement,” Pacheco said. “It’s a bit of a different application of the settlement agreement.”

Colorado's effort quickly died

Sen. Barbara Kirkmeyer in 2021 sponsored Senate Bill 21-23, which would have prohibited state agencies from restricting employees from disclosing factual circumstances concerning their jobs. The only limits would be when disclosure would breach any privacy laws or reveal matters that were required to remain confidential, such as trade secrets, grand jury testimony or the like.

During committee hearings, Kirkmeyer said it was the ongoing judiciary scandal in which a number of high-ranking Judicial Department employees had signed non-disclosure settlements that had prompted her proposed legislation. One of them, former Chief of Staff Mindy Masias, landed a multi-million-dollar training contract with the state just after signing her settlement.

Masias was to be fired when she allegedly threatened a tell-all sex-discrimination lawsuit in which she would reveal years of judicial misconduct that went undisciplined or was handled quietly. That threat included a two-page memo that outlined the alleged misconduct.

The author of the memo, then-operations chief Eric Brown, similarly signed a non-disclosure settlement when he resigned after news of the Masias deal became public in the summer of 2019.

Kirkmeyer at the time said the Masias story and ensuing scandal was partly responsible for why she drafted the bill.

“State government employees are public servants. They’re hired to serve the public. They’re paid with public funds. Non-disclosure agreements raise both ethical and legal implications,” Kirkmeyer, a Weld County Republican, told the Senate Judiciary Committee in the bill’s lone hearing before the legislature in March 2021. “A government employee should not be allowed to have their speech silenced, to be muzzled. The public is entitled to know what public employees are doing and what their government is doing.”

Miller Hudson, the former president of the Colorado Association of Public Employees, testified that state agencies will insist on a non-disclosure clause in a settlement agreement “when there’s something they’re trying to hide.”

“By enforcing the non-disclosure deal, you essentially muzzle the employee and you put them in a position, even if they get a financially satisfactory settlement, they’re left in a kind of PTSD position about what really happened,” Hudson testified. “I’m aware of some employees who carried it to their grave, bitterness about the way that they were dealt with, signing their voice away.”

Hudson said that at the CAPE he frequently witnessed the AG’s office ramp up the state’s settlement offer with an employee’s refusal to sign the non-disclosure clause.

“The employee refused to sign at $180,000, so they were asked if they’d sign at $250,000 or $300,000,” Hudson said. “This is not any way anyone wants to see government operate.”

The bill ultimately died in committee in a 3-2 vote that followed party lines, Democrat over Republican. The committee chairman, Sen. Pete Lee, D-Colorado Springs, told The Gazette recently that he felt the bill was “simply too broad, too sweeping, covered too much ground.”

Hudson today said he’s not changed his mind, that non-disclosure deals are bad news.

“They’re simply done to the employees you want to go away,” he said. “They work their magic, asking what do we have to give you to make you leave and shut up.”

Several states enact prohibitions

At least 16 states have laws that deal with confidentiality agreements, largely in the private sector, although they would apply to government employees. Some are restricted only to the type of non-disclosure, such as ensuring names of victims in sexual misconduct cases are protected.

In Oregon, state law allows anyone to sue their employer for violating any confidentiality agreement and Illinois offers protection to whistleblowers who sign confidentiality agreements, preventing them from being enforced.

Maine this year banned employers from using confidentiality agreements that would stop workers from reporting misconduct to law enforcement.

Washington passed the “Silence No More” Act that bans confidentiality agreements in all workplace discrimination cases, as well wage claims and workplace conduct that are “against a clear mandate of public policy.”

In Colorado, the prohibition is on retaliating against any public employee for having disclosed information, leaving some to wonder if confidentiality agreements are even enforceable.

“These agreements seek to waive the rights of that statute,” said Steve Zansberg, a First Amendment attorney in Denver who represents a number of news organizations including The Gazette. “Aside from the First Amendment issues, one way to challenge any contract that includes a confidentiality clause is it’s unenforceable and void since it is against public policy.”

Agreements that prevent a public employee from speaking about them “are one-way deals, meaning the parties are in such an unfair bargaining position, the courts could call them unenforceable,” he said.

That Colorado even allows confidentiality clauses in separation agreements with state employees, even in matters that settle litigation, “significantly reduces transparency and government accountability,” according to Defend Colorado, a political group that funds conservative causes.

“If whistleblowers are silenced through government-funded payouts, it diminishes accountability, protects poorly functioning agencies, and hides systemic workplace problems,” the group said in a statement. “Equally troubling, there are no standards or uniformity to dictate when an NDA should be offered or what terms should be included. As a result, state officials have enormous discretion to determine who should be silenced with taxpayer dollars.”

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