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Illinois

* Gregory Royal Pratt at the Tribune…

In an extraordinary departure from usual practices at City Hall, the city’s $100,000 settlement agreement with whistleblowers who were fired by Treasurer Melissa Conyears-Ervin prohibits them from publicly discussing their negative experiences in her office, records show.

Of more than three dozen settlements reached with city workers over the past five years, the deal that Mayor Lori Lightfoot’s administration reached with the treasurer’s ex-employees was the only one that contained what amounts to a gag order, the Tribune found. In a handful of cases, former employees agreed not to discuss the terms of their settlements, but they could still speak freely about their time in city government.

For the whistleblowers who had alleged that Conyears-Ervin used public resources for personal gain, the terms of the deal’s non-disparagement clause were so restrictive that they specifically included a ban on giving any “false and disparaging” statements to the media. […]

[The treasurer’s spouse, Ald. Jason Ervin] led furious battles against Lightfoot over legal marijuana sales in late 2019 and emergency contracting during the COVID-19 pandemic. But he slowly evolved into an ally and surprised colleagues when he delivered an early endorsement for Lightfoot’s reelection campaign in September 2021. The city signed the settlement agreement a month later.

* The Question: Should the state consider passing a law to bar state and local governments from entering into non-disparagement lawsuit settlements? Explain.

posted by Rich Miller
Wednesday, Oct 11, 23 @ 9:13 am

Comments

Yes.

This kind of enforced secrecy has no place when it involves public offices and public officials.

Frankly, I think any such law should also include a ban on prohibitions against discussing the terms of the settlement.

Comment by JoanP Wednesday, Oct 11, 23 @ 9:20 am
Absolutely. Criticizing government is a core American right.

Comment by Anon E Moose Wednesday, Oct 11, 23 @ 9:24 am
Is a new state law needed?

This seems to be a perfect example of prior restraint by a public body, and should fail a court challenge.

But this seems to be the latest trick many public bodies are using more often. They know they don’t have the law on their side, but for the public body to lose in such a situation the aggrieved MUST first pony up the cash to challenge it - and many people can’t do that.

So the bad decision stands in the end.

Comment by TheInvisibleMan Wednesday, Oct 11, 23 @ 9:26 am
Yes, because a) the money does not belong to the people signing these agreements, and b) the public has a right to know why it is paying out 6 to 7 figure settlements.
I literally cannot comprehend how the public interest could be served by a gag order in this case. There is no way such an order is not simply self serving but again, it’s not her money. It’s also not the city lawyers’ money, or the judge’s money, or even the plaintiff’s money until the settlement is paid out. So the one party with actual money at stake in the litigation gets left in the dark. Show me anywhere else in the US legal system that happens.

Comment by Larry Bowa Jr. Wednesday, Oct 11, 23 @ 9:27 am
I am hesitant to say Yes until other options have been explored. I know that nondisclosure agreements are a standard part of employment settlements, I also know that employment rights attorneys are happy to agree to them because they are only concerned about their client and getting paid.

But nondisclosure agreements often run counter to the public interest and public policy, especially when they directly involve an elected official.

However in this case, I think Greg Pratt and the Chicago Tribune editorial board have a few options.

First, I think any nondisclosure agreement would not apply to any official hearing by any legislative body, whether it is the city council, General Assembly, or board of elections.

Secondly, I don’t think anything could prevent the new mayor from amending existing agreements to strike the nondisclosure clause, so that former employees could speak freely if they so chose.

That said, as the story suggests, the timing creates the appearance of a quid pro quo between the Mayor and Rep. Ervin, linking a campaign endorsement to an official city action that involved taxpayer dollars. Any half-decent US Attorney has some follow-up questions.

Comment by Louie B Dice Wednesday, Oct 11, 23 @ 9:30 am
Allowing politicians to control the narrative while politicians are allowed to false narratives in order to gain and maintain power over the people they serve, is bad policy. The people have a right to know the full details regarding government actions by elected officials. Anything less is a violation of the principle of allowing an informed electorate to decide who shall serve.

Comment by H-W Wednesday, Oct 11, 23 @ 9:45 am
I believe the non-disparagement clause in question refers to untrue statements… With so much disinformation in today’s world, this doesn’t seem so bad to me.

Comment by Lincoln Lad Wednesday, Oct 11, 23 @ 9:46 am
I say no. I think these clauses likely run afoul of the 1st Amendment. InvisibleMan is onto something with his prior restraint discussion, but there’s another issue too. Different kettle of fish if these terms were between two private entities, but by involving the government it appears to be an unlawful contract term contrary to the public interest. Afterall, the public has a right to know what behavior their elected officials have engaged in vis a vis their employees.

Comment by Just Another Anon Wednesday, Oct 11, 23 @ 9:57 am
===refers to untrue statements===

From the story…

When shown the language in the Harper-Evans deal, one attorney not involved in the settlement, Laura E. Schrick, noted that the terms prohibit only “false and disparaging” comments.

That wording, in theory, leaves the ex-employees free to speak about truthful actions. But practically speaking, talking could bring a city lawsuit and arguments over whether what they said was truthful.

“Even if you think you can prove the statement is true,” Schrick said, “if the city files suit against you, you are taking a risk and you will be expending significant time and likely money on legal fees to defend yourself.”

Comment by Rich Miller Wednesday, Oct 11, 23 @ 10:04 am
Torn on this one. It will be interesting to see what the plaintiff bar says about this.

On the one hand, it can be a negotiating tool for a settlement and may work to the claimants’ advantage. On the other hand, it seems scuzzy (not a reason for public policy, I know). It might also benefit taxpayers by discouraging government entities from wasting money on litigation to ‘protect the boss.’

Comment by OneMan Wednesday, Oct 11, 23 @ 10:06 am
==With so much disinformation in today’s world, this doesn’t seem so bad to me.==

Sunlight is the best disinfectant. The Murdochs (followed by the Zuckerbergs and Musks) of this world are responsible for the mess we’re in.

Comment by Jocko Wednesday, Oct 11, 23 @ 10:09 am
Yes. First Amendment.

Comment by Nick Name Wednesday, Oct 11, 23 @ 10:14 am
Any settlement paid with government money cannot be subject to an NDA under Illinois FOIA:
(5 ILCS 140/2.20)
Sec. 2.20. Settlement and severance agreements. All settlement and severance agreements entered into by or on behalf of a public body are public records subject to inspection and copying by the public, provided that information exempt from disclosure under Section 7 of this Act may be redacted.
(Source: P.A. 99-478, eff. 6-1-16.)
I once had to cite this, and FOIA opinions, to the State of Illinois in a settlement agreement review.

Comment by thisjustinagain Wednesday, Oct 11, 23 @ 10:34 am
NDAs are a part of the settlement process. A lot of cases settle simply because of the cost of litigating the case is greater than simply giving a settlement. Without NDAs, the Plaintiffs will be willing to move their number lower since the NDA is a part of the consideration for the agreement.

In terms of the comment that settlement agreements not being legal under FOIA, that is a different issue than what an NDA governs. Yes, a settlement agreement would be available under FOIA, but a lot of times the NDA refers to facts relating to the case that are not included in the settlement agreement. The idea is you don’t want a former employee spouting off non-sense in the media after collecting a check to resolve the litigation. Like it or not, it makes sense to have a NDA.

Comment by Hannibal Lecter Wednesday, Oct 11, 23 @ 10:45 am
=== Yes. First Amendment. ===

If you enter into a settlement agreement with an NDA, you are waiving your first amendment rights in exchange, in part, for the money that you will be receiving in response to your claim.

Comment by Hannibal Lecter Wednesday, Oct 11, 23 @ 10:47 am
@thisjustinagain

That’s only relating to the settlement disclosure itself. The settlement has already been publicly released. It’s how you are aware there is an NDA/NDC on a specific individual as part of the settlement agreement.

The NDA/NDC is the core issue within the now public settlement agreement - as it only applies to a specific individual and not the general public.

I first thought the same thing as you. But then realized the NDA contained within the settlement is unrelated to the settlement disclosure issue. That part is not explicitly dealt with in any binding or non-binding FOIA opinions from the state AG, nor in any existing state legislation.

Comment by TheInvisibleMan Wednesday, Oct 11, 23 @ 10:48 am
“Sunlight is the best disinfectant.” Right on. Yes, gag orders involving public bodies, especially police, should be banned by the legislature. Every hack lawyer I’ve ever known would love to take a settlement rather than go to court and actually work to prove a case.

In federal court rules, if a jury believes the plaintiff and they “win” awarding them for example $10K for getting beat up by a cop, and the prior settlement offer was $20K, the plaintiff has to pay the difference and could end up paying money out if they don’t settle before trial. Disgusting.

Comment by Payback Wednesday, Oct 11, 23 @ 11:07 am
If it is public money being paid, then NDA’s interfere with the public’s right to be informed.

In that case, the purpose of the NDA is clearly to protect the public official from disclosure of adverse information, which serves nonpublic interest. If the public official wants an NDA, then let the public official pay the settlement with personal, not campaign, funds.

Comment by RNUG Wednesday, Oct 11, 23 @ 11:22 am
no public, not nonpublic

Comment by RNUG Wednesday, Oct 11, 23 @ 11:23 am
==“false and disparaging”

True information can be disparaging.

Comment by ArchPundit Wednesday, Oct 11, 23 @ 12:22 pm
===True information can be disparaging===

And it can be the most devastatingly disparaging.

Comment by Rich Miller Wednesday, Oct 11, 23 @ 12:27 pm
The state should absolutely pass a law to prevent our governments from interfering with the public’s ability to know what our public officials are up to.

A legal settlement that prevents a party from discussing the cause of the legal settlement prevents the public from being able to know what their funds were used to address. It is akin to a coverup that comes at the expense of the public twice. Once for the literal payment and once more for the damage in our ability to hold our government accountable.

Comment by Candy Dogood Wednesday, Oct 11, 23 @ 12:42 pm
Yes…in order to uphold the first amendment.

The purpose of free speech is to guarantee the right of the public to know the (whole) truth…however or wherever the unpleasant finger points.

Comment by Dotnonymous x Wednesday, Oct 11, 23 @ 1:25 pm
I read the settlement agreement to mean that the restricted statement must be both false and disparaging to be actionable. A restriction on merely “disparaging” statements is probably too broad to be enforceable. To that end, the agreement says that you can’t take our settlement money and then go lie about what happened. That’s not entirely unreasonable. I’m guessing that a significant portion of that settlement was tied up in the no-fault posture of the agreement.

I suspect that if you’re going to block anti-defamation provisions, you might as well just block settlement agreements all together. Those agreements aren’t worth nearly as much without those provisions.

Comment by duck duck goose Wednesday, Oct 11, 23 @ 1:38 pm
I think people are confusing non-disclosure and non-disparagement.

Comment by Anon E Moose Wednesday, Oct 11, 23 @ 2:01 pm
Having not seen the details of the agreed settlement, I’m not entirely sure what to think about this. My gut reaction is that is much of a muchness with all agreements where a defendant concedes damages (often, ostensibly, for the sake of avoiding risks and cost of continued litigation) without admitting wrongdoing — that it does Truth no service. That said, I’m also reluctant to respond by creating a new law, which will inevitably have unintended consequences. I’m curious about the enforceability of an agreement not to make “false” statements. Who would be the arbiter of truth or falsehood? Does the agreement (in its full detail) address that? On the whole, I would rather see courts handle such matters through forms of action deriving more from traditional Equity than from Law, which would acknowledge a public interest in establishing truth as much as a private interest in recovering damages.

Comment by ARepublicIfUCanKeepIt Wednesday, Oct 11, 23 @ 3:44 pm