DiZoglio drafted NDA Order while Healey was away

BOSTON, Mass. (SHNS)–Thinking she might briefly gain access to the powers of an acting governor, Auditor Diana DiZoglio drafted an executive order to ban state agencies from mandating non-disclosure agreements in settlements with employees, but while the order was drafted to be issued by an [ACTING] GOVERNOR, DiZoglio says she didn’t plan to issue it.

DiZoglio thought she was going to be serving as acting governor on Tuesday, with other constitutional officers out of state. Gov. Maura Healey, Lt. Gov. Kim Driscoll, Secretary of State William Galvin and Attorney General Andrea Campbell are delegates at the Democratic National Convention in Chicago, and Treasurer Deb Goldberg is traveling for a wedding and away for the week.

DiZoglio’s office early on the morning on Day 2 of the convention called a press conference, and when she appeared before the media at 11 a.m. in her State House office, she said she did not plan to sign the order, even if she had been made acting governor, because the Healey administration has said they would work with her on issues of transparency.

“I do not feel that that would have been a way to make meaningful and positive change, positioning the administration to come home to a signed Executive Order,” she said. “It’s my intention to partner with this administration.”

If the governor and lieutenant governor are absent, the state’s top job gets passed to the secretary of state. When he is absent, the attorney general is the next in line to fill in, followed by the treasurer and auditor.

According to the constitution, the acting governor has “full power and authority to do and execute all and every such acts, matters and things as the governor or the lieutenant-governor might or could lawfully do or execute, if they, or either of them, were personally present.”

The auditor said she was told by the Healey administration last week that she would be made acting governor for a few hours Tuesday morning between when Driscoll left for the convention in Chicago and when Galvin returned.

The auditor’s office released a media advisory just after 9 a.m. Tuesday morning about the press conference, saying DiZoglio planned to “discuss an opportunity to execute meaningful change across state government, increasing transparency and accountability.”

At the press conference, DiZoglio said that due to “a misunderstanding or error made in another schedule,” Driscoll is leaving for Chicago later than planned, and Galvin will touch back down in Massachusetts before the lieutenant governor leaves.

“I was surprised with the information that I would be acting governor, and I was subsequently, due to that fact, peppered with questions, consistently asked all week long, every day, what my plans were for the moments that I would be able to serve in that role,” DiZoglio told reporters at the press conference. “And it caused me to think about some things that I had never really thought about before from that perspective. And I was informed that I would have the opportunity to potentially highlight some issues where we could make meaningful progress in the state of Massachusetts, and identify ways to help people.”

Before her successful auditor campaign in 2022, DiZoglio served three terms in the House and two terms in the Senate.

In 2018, during her push to rein in the use of non-disclosure agreements in the House, DiZoglio said from the chamber floor that she had signed a deal “under duress” when she was a House aide and her boss fired her following discredited rumors of inappropriate behavior.

“This building was utilizing these agreements and your tax dollars to cover up sexual harassment,” she said about the incident at Tuesday’s press conference.

The draft order her office distributed to reporters Tuesday would have banned agencies from imposing NDAs on employees in order to come to a settlement agreement, and allowed victims or claimants to make the choice of whether they would like the agreement to be confidential.

Read the draft of DiZoglio’s NDA order here:

Additionally, under the language the auditor is proposing, the financial details of every settlement at state agencies and quasi-public agencies would have to be posted to the Commonwealth’s Financial Records Transparency Platform, or CTHRU, administered by the comptroller’s office.

The draft order lists among its reasons for the policy change: “As discovered in the #MeToo movement, the abuse of non-disclosure agreements has been well-documented to perpetrate abuse, silence victims, and protect powerful perpetrators of abuse such as Roger Ailes, Larry Nassar, and Harvey Weinstein,” and that “The use of taxpayer funds to silence victims and protect perpetrators of abuse is unacceptable, unethical, and immoral.”

Though she said she believes the Healey administration is willing to work with her on the issue, she said she would have considered signing the order if she were acting governor during former Gov. Charlie Baker’s tenure.

“Full transparency, since that’s the theme of the conversation today, if this was the previous administration, I likely would have very strongly considered signing this proposal if I would have been acting governor during the previous administration, because the previous administration repeatedly and consistently opposed any and all reforms to the abuse of taxpayer dollars that are used in these non disclosure agreements,” she said.

DiZoglio said she did not tell Healey in advance that she would be holding a press conference about the NDA executive order she drafted.

Asked by the State House News Service what the press conference was about in advance, a DiZoglio staffer responded that the auditor would discuss the findings of a recent audit of the Massachusetts Convention Center Authority.

That report revealed the quasi-public agency executed a $1.2 billion non-disclosure agreement “concealing allegations of racial discrimination,” DiZoglio said, among other findings.

This $1.2 million settlement wasn’t required to be filed with the comptroller’s office, she said, as current law excludes quasi-public agencies from mandated public reporting of the use of taxpayer funds for settlement agreements.

“What happened at the Convention Center Authority is due to that lack of an accountable process being in place, being required to file the comptroller’s office, not going through board approval,” DiZoglio said. “Those things not being followed, we were able to see that these abuses were able to occur.”

She compared the $1.2 million settlement at the MCCA with her own settlement while working as an aide in the House.

“Years ago, it was a six-week severance package out of a $30,000 a year salary for a sexual harassment incident. And now it’s $1.2 million of our taxpayer dollars that is going to fund concealing racial discrimination and retaliation,” the auditor said. “It seems we’re going in the opposite direction, and that we need to turn things around quickly.”

She added, “With the stroke of a pen, we can address a lot of the issues that have been raised in recent years… so the Convention Center Authority audit is the reason why this particular issue did come to the forefront of my mind, it’s something that we can address today.”

The auditor said her office is also conducting an audit of all settlement agreements across all state agencies over the past 12 years, and is working with the administration to do so.

She said they have encountered difficulty obtaining documents from some executive departments, but her counsel declined to share which agencies due to the ongoing audit.

“I have certainly expressed frustration to the governor’s office about some of what I believe to be unnecessary delays in getting access to documents,” DiZoglio said. “Public records law provides for about 10 days to get access. We’ve waited two, three, four, five, even six months, in some cases, to get access to the documents we’ve been requesting. But again, I have recently met with the governor and she has indicated that it is her intention to assist in ensuring that we do get access to our documents in a timely fashion.”

A Healey spokesperson did not respond to a question as to why Driscoll changed her travel plans on Tuesday.

The press conference, which was announced at 9 a.m. and held at 11 a.m., was held during the time DiZoglio seemed to originally believe she would have been serving as acting governor.

“I can’t speak to any of the plans, but Secretary Galvin was, to my understanding, always planning on coming back this afternoon,” she said, when asked by a reporter. “I had a great conversation with him last week in which he did tell me he was planning on being back this afternoon. So I don’t believe that his schedule changed at all. That was always the case. It was the morning period for which there was a misunderstanding or error made with another schedule, I believe.”

She said the order was drafted in a way that Driscoll could have signed it, in Healey’s absence.

“I have a proposed executive order, a draft executive order for this administration, for our elected governor to consider and to sign. I did put ‘[Acting] Governor’ as well, just in case the LG happens to want to also participate in this if she is acting governor, which I believe may be the case right now.”

DiZoglio told POLITICO last week that Healey’s office had been in touch with her team about taking the role as acting governor Tuesday.

NBC10 Boston caught the secretary on his way back to Massachusetts from the DNC to take over the acting governor role. “I know the lieutenant governor wants to be able to attend the convention and she has the right to do that, so it’s kind of a relay race. I go back, I take the baton, and she comes down,” Galvin said, when asked why he was returning to Massachusetts.

The NBC10 Boston reporter followed up, asking why they didn’t feel comfortable leaving the job in the auditor’s hands. “I have nothing to do with that,” Galvin replied. “I’ve served as acting governor under seven governors. We don’t get into that. The serious issue is to make sure that somebody’s there who’s responsible, and I’ve held that role, as I’ve said, under seven different governors now. So it’s not about any personalities. It’s about the responsibility you have.”

The secretary returned to Massachusetts around 1 p.m. on Tuesday afternoon, according to his office.

It is rare for an acting governor to take drastic policy-changing action while fulfilling that role — though it appears DiZoglio isn’t the only one who thought about taking advantage of the relay between constitutional Democrats handing off the baton this week.

The Massachusetts Republican Party called Tuesday for Galvin to use his powers as acting governor to release financial details about state spending towards the emergency family shelter system that topped $1 billion last fiscal year. Galvin will serve as acting governor until Friday afternoon.

Galvin has stepped in as acting governor many times over his decades serving as secretary of state, but rarely has tried to use that temporary power. In December 1998, while Acting Gov. Paul Cellucci was out of state on vacation, a newly re-elected Galvin filed emergency legislation to force health maintenance organizations to divulge details of their costs for providing prescription drug coverage to senior citizens, according to Commonwealth Beacon.

Among the most dramatic recent examples of an acting governor exerting her power came in September 1990 during former Gov. Michael Dukakis’s administration. While running for governor, Lt. Gov. Evelyn Murphy famously issued executive orders calling for budget savings as Dukakis traveled out of state.

Less than 24 hours after former Dukakis left for a trade mission to Europe, Murphy issued two binding executive orders meant to address a budget deficit. Murphy’s orders focused primarily on gaining access to accurate spending reports and reducing personnel and spending in the upper echelons of the state’s bureaucracy, and called for the firing of 1,000 state agency managers and for state employees making over $40,000 per year — including Murphy and Dukakis — to face a 5 percent salary cut.

This wielding of executive power made Murphy unpopular in the corner office. Over a month after she issued the orders, the lieutenant governor said the response for the administration was “sharp and nasty,” and that she had not seen Dukakis in over a month. Shortly after the incident, she dropped out of the gubernatorial race.

DiZoglio declined to answer a reporter’s comment about whether she plans to run for office again in 2026 — and whether she is eyeing any other state or federal offices — during Tuesday’s press conference.

“I believe that that is an inappropriate question in this office, from this podium, with the seal of Massachusetts right here, right now,” she said, gesturing at her State House office and the official auditor’s seal. “I’m happy to discuss all campaign activities outside of this building… I really just want to show that we’re not using this podium and public tax dollars to discuss any campaign.”

Later, when asked over text whether she plans to run again in 2026, DiZoglio responded that her sights are set on nearer elections.

“Today is about getting this job done to the very best of my ability and using every available tool to make the meaningful changes on issues I’ve been discussing over the course of the last several years — that were recently highlighted in our audit,” she wrote. “Separately, in my unofficial capacity, my focus regarding any campaign is on working to elect our Democratic nominee for President and asking folks to vote yes on 1, to bring in the sun.”

The “yes on 1” comment is a reference to her ballot question campaign to authorize the auditor’s office to audit the Legislature

For the latest news, weather, sports, and streaming video, head to WWLP.