A bill that would prohibit Colorado governments from using nondisclosure agreements with its employees is scheduled for a state Senate committee hearing Thursday.
Senate Bill 23-53 aims to stop the state’s widespread practice of settling employee disputes, sometimes for hundreds of thousands of dollars, by requiring them to sign deals that ensure the details of the taxpayer-funded arrangements remain secret.
Critics of the practice say it’s little more than government efforts to prevent the airing of its dirty laundry; a method of silencing whistleblowers who call out misconduct or malfeasance from ever letting anyone know what happened in their cases.
The deals have the potential to bury evidence and prevent investigation of crimes, discrimination, sexual harassment and wage inequality. NDAs, as they are more commonly referred to, were part of the reason why investigations into the state’s judiciary scandal were hampered.
Proponents of the practice have said 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.
The Denver Gazette in November revealed how the state signed more than 80 settlement deals with employees since 2019 totaling more than $4 million in taxpayer payouts, each with an NDA, preventing them from discussing it with anyone.
Sponsored by Sen. Barbara Kirkmeyer, a Weld County Republican, the bill would also prevent the state, its 64 counties, cities, and school districts from requiring nondisclosure deals as part of government employment to prevent them from speaking about their jobs.
The only exception would be if the employees work with information that is required by law to be kept secret or private, such as security details or business information that is proprietary.
“The public has a fundamental interest in transparency concerning the conduct of government,” the bill currently reads. “Nondisclosure agreements imposed on government employees … that effectively prohibit (them) from disclosing details about their government service obstruct these fundamental principles of government transparency and public accountability. The details of public business should not be hidden from public view …”
The bill is scheduled to be heard before the Senate’s State, Veterans and Military Affairs Committee.
The Gazette uncovered dozens of examples where state employees agreed to the NDAs for payments of as little as $2,000, with little public record available to explain why. Several who spoke with the newspaper said they felt pressured to sign the deals.
At least 16 states already restrict NDAs. Although mostly in the private sector, the prohibitions extend to public employees. And NDAs are strictly prohibited in federal government. The usual exemptions for privacy, secrecy or other restriction that’s codified in law apply.
It is Kirkmeyer’s second try at restricting the practice in Colorado.
She sponsored Senate Bill 21-23 in the 2021 legislative session. During committee hearings, Kirkmeyer said it was the continuing judiciary scandal in which a number of high-ranking Judicial Department employees had signed NDAs that prompted her to propose the legislation.
Although the bill ultimately died in a 3-2 vote that followed party lines, she said The Denver Gazette investigation into NDAs stirred her anew.
Attorney Casey Leier has represented a number of state employees in their grievances, often in cases where they allege misconduct, and said NDAs are problematic, especially in cases of sexual misconduct and harassment.
“The public deserves to know when this illegal conduct is occurring,” Leier told The Denver Gazette. “The state can silence individual employees one by one, but the only way to stop discrimination or misconduct in the long run is to bring the root cause to light.”
