BEACON HILL INFIGHTING over non-disclosure agreements isn’t going away, as Sen. Diana DiZoglio accused House Speaker Robert DeLeo of using “propaganda” to manipulate the debate while the speaker’s office obliquely critiqued the Senate’s decision to completely ban the legal instruments.
Non-disclosure agreements, or NDAs, are legally binding confidentiality agreements that can be used in the world of business to preserve trade secrets but have also recently been employed by alleged sexual predators such as Harvey Weinstein because they can buy the silence of those wronged.
The two branches are sharply at odds. The Senate voted unanimously to ban the agreements, while the House decided to allow their use with the one proviso that, in matters of sexual harassment, such settlements can only be initiated at the request of the alleged victim. An attempt to ban all NDAs in the House earlier this year was soundly defeated, with only five of the 160 members voting in favor.
Several female House members, including some with expertise in dealing with sexual harassment, have spoken up in favor of the new House approach toward NDAs – saying that the House rules empower victims by providing an option that can offer some security for those who don’t want the stories of their abuse or harassment to be shared.
“We believe the public needs to understand that NDAs, if structured in a certain manner, can be powerful and effective tools for any victim,” said Rep. Marjorie Decker in an op-ed authored with two women active in the sexual and domestic violence field.
But DiZoglio, who has first-hand experience with the speaker’s use of the agreements, said DeLeo and his team have twisted the debate.
“The speaker’s manipulated the entire conversation surrounding the use of NDAs, frankly, through propaganda,” she said.
DiZoglio and the speaker’s office view the NDA she signed more than seven years ago through two different prisms. DiZoglio says she felt pressured into a hush agreement barring her from discussing the sexual harassment and unfair firing she says she endured as a legislative aide in 2011. DeLeo claims the NDA was not about sexual harassment, and says he first heard last year about the harassment DiZoglio says she experienced.
“When I’m saying my non-disclosure agreement was tied to sexual harassment and gender-discrimination and the speaker says that it wasn’t, we have a huge problem,” DiZoglio said. “He’s acting in a way designed to discredit and intimidate. And I’m not scared of the speaker anymore, but how can any employee feel safe coming forward regarding harassment or discrimination knowing that it’s going to be their word versus the powerful speaker of the House?”
The debate over non-disclosure agreements in the House and Senate followed a raft of previously secret allegations against powerful figures in media and politics, as well as allegations of sexual harassment on Beacon Hill.
Touting a new survey of employees the House plans to conduct every two years and the creation of a new equal employment opportunity officer position, DeLeo’s office contrasted the House’s new policies with the outright ban on NDAs enacted in the Senate. “What we have not done is, contrary to the recommendation of experts in the field, arbitrarily banned the use of NDAs and declared victory,” a DeLeo spokeswoman said.
While DiZoglio has said she appreciated the House’s approach toward victims of sexual harassment, she says the House rules do not similarly empower victims of other types of harassment or discrimination based on gender, race, religion, sexual orientation, or other factors.
“There’s a huge loophole,” DiZoglio said.
CASE STUDY
DiZoglio’s personal story presents an interesting case study of how DeLeo’s office has employed NDAs in the past. It also exposes potential shortfalls of the House’s updated policy and of NDAs themselves.
DiZoglio disclosed her non-disparagement agreement during a debate on the House floor last March, thereby violating the confidentiality clause of that severance agreement. The surprising speech earned DiZoglio some sympathy from her colleagues but her proposed solution – to completely ban NDAs in the House – failed on a 131-21 vote.
“I am very, very sorry for your experiences here in the past as a staff member of this institution,” said Rep. Tricia Farley-Bouvier, who spoke after DiZoglio on the House floor. She called DiZoglio an “exceptionally brave woman” last year but said she disagreed with her policy prescription.
In 2011, DiZoglio was an aide to Rep. Paul Adams, an Andover Republican, when, as she described it, she had the “misfortune of having a conversation” in the House chamber during a party that was taking place in the speaker’s office, which adjoins the chamber. DiZoglio and Rep. Mark Cusack of Braintree were discovered in the chamber by a court officer, and an investigation was launched that ultimately cleared them of any inappropriate behavior.
Despite that finding, false rumors swirled that something of a different nature had occurred. “People were constantly talking about me and not in a good way,” DiZoglio said.
Adams ordered DiZoglio not to speak about the incident and later told her to look for another job, she said.
“My work environment had become so hostile that my boss decided to fire me,” DiZoglio said recently. In a statement issued last March, DeLeo said Adams had been instructed not to fire DiZoglio.
DiZoglio, who was 26 at the time, said she spoke to staff in the speaker’s office to try to secure another position, but was unsuccessful and instead negotiated a modest severance package.
“On my way out the door I was hit with another surprise,” DiZoglio said on the House floor. “The speaker’s office would not release my six-week severance pay unless I signed a non-disclosure agreement, including a non-disparagement agreement that legally bound me from discussing what had happened and from criticizing any past, present, or future elected members of this House.”
Ironically, it has been in regards to such agreements that DiZoglio has leveled her harshest criticisms against the speaker.
DiZoglio signed the document and the following year the Methuen Democrat defeated Rep. David Torrisi in a primary and returned to the House chamber as a state representative. That same fall, Adams lost a bid to join the Senate. Last year, DiZoglio won election to the Senate. This year, the Senate unanimously embraced a motion to ban on all NDAs in that chamber.
Although DiZoglio publicly acknowledged breaking her NDA agreement last year and offered to reimburse the severance payment she received, the House has not sought to enforce the NDA. In his statement last year, DeLeo said it was “troubling” that DiZoglio did not want to abide by the terms of the agreement.
DiZoglio said her story highlights a limitation of the House approach to NDAs dealing with sexual harassment. In order for claims to be handled with the special victim-driven approach outlined in the new rules, House officials would need to ascertain that the situation involves sexual harassment. That didn’t happen in 2011.
Because of the nature of the untrue rumors, and the “the innuendoes, the name-calling, the propositions,” DiZoglio said what she endured eight years ago – and what led to her firing – was sexual harassment.
In his statement from one year ago, DeLeo said that neither he nor any member of his staff, the House counsel’s office, nor human resources had heard of the harassment DiZoglio experienced until the day before the 2018 House debate when DiZoglio broke the terms of her NDA in a floor speech. DeLeo said that in three meetings with his staff and House counsel staff in June 2011, DiZoglio never reported the harassment and an attorney for DiZoglio also did not raise the issue of harassment.
“She did repeatedly express concern for her job security and frustration with the media’s coverage of the matter,” said DeLeo, who said he and others were “deeply troubled” by the experience DiZoglio described.
The agreement signed by DiZoglio and James Eisenberg, DeLeo’s chief of staff at the time, includes a clause that prevents DiZoglio from bringing any legal action against House members for past violations of the Fair Employment Practices Act, the Equal Rights Act, the Civil Rights Act, or various other laws. It also prevents her from making any false, disparaging, or derogatory statements about the House to the public.
NEW PROCEDURES
Under the new procedures, all settlements entered into by House officials with a member, employee or former employee of the House must also be approved by House counsel, the House’s equal employment opportunity officer, and the House’s human resources director, and those three officials must ensure that the rules were followed, including the special sexual harassment rules.
It is possible that given the new emphasis on distinguishing sexual harassment from other types of behavior under the new rules, there would be a greater effort on the part of House officials to try to determine whether a claim of sexual harassment might exist.
The speaker’s office continues to maintain that dating back to Jan. 1, 2010 – about a year after DeLeo assumed the speakership and more than a year before DiZoglio’s NDA – none of the roughly 33 severance agreements the House entered into were made to settle claims of sexual harassment.
Even DiZoglio found something to like about the House’s NDA procedures adopted last year compared to past practices, calling them “really good revisions” in her floor speech and saying that she was “grateful” for the update even though she didn’t think it was enough.
“If you believe that my NDA was for harassment, how can you justify allowing them to continue to be used by the speaker?” DiZoglio said.
In a statement, the speaker’s office confirmed the House can enter into non-disclosure agreements with those who have not reported claims of sexual harassment.
“We have never claimed that if a current or former member, officer, or employee does not report a claim of sexual harassment or a potential claim of sexual harassment to the House (or to the attorney representing them in the negotiations with the House, as was the case with Senator DiZoglio) that it would not be possible for the House to execute a settlement agreement with that current or former member, officer, or employee,” the statement said.
In 2011, according to the speaker’s office, DiZoglio’s attorney “informed House Counsel that he believed that Senator DiZoglio had a potential employment claim unrelated to sexual harassment.”
DiZoglio doubts that the speaker’s office didn’t know about the harassment in 2011, and she said the disagreement she has with him illustrates one reason why the House’s approach toward dealing with NDAs is problematic.
“They were aware what was taking place. Now whether or not they considered it to be sexual harassment at that time – that just goes to show you there’s so much room for the abuse of these agreements,” DiZoglio said.