Michigan Gov. Gretchen Whitmer and former state health director Robert Gordon have agreed to waive a nondisclosure agreement tied to his $155,506 separation deal following criticism from Republicans that it amounted to a "hush money" payment to buy his silence.
The Democratic governor and former Michigan Department of Health and Human Services director mutually agreed Wednesday to waive the confidentiality provision of Gordon's Feb. 22 separation agreement "in the interest of greater transparency," Whitmer Communications Director Tiffany Brown told Crain's on Thursday.
Whitmer's office agreed Feb. 22 — one month after Gordon abruptly resigned — to pay him 85 percent of his $182,000 annual salary as well as COBRA health insurance payments to settle any unspecified legal claims Gordon may have against the state.
Whitmer's office also tied a $85,872.56 severance for former Unemployment Insurance Agency Director Steve Gray to a nondisclosure agreement when Gray resigned in November, paying him the remainder of a contract through June 1, Crain's reported March 2.
Brown said the governor's office has not discussed with Gray about whether to waive his confidentiality agreement, but they are "reviewing whether to do so."
Gordon's agreement, which was kept secret until it came to light in a Freedom of Information Act request, called for Whitmer and Gordon "to maintain confidentiality regarding employee's departure from employment unless required by law to release such information."
Wednesday's agreement amends the original deal by stating, "the parties agree to waive the confidentiality provision contained in paragraph 3 regarding Employee's departure from employment. This amendment, however, does not waive any privileges that either party may possess or invoke under Michigan law," according to Brown.
In the days following Gordon's resignation, Whitmer steadfastly refused to comment on why Gordon had left or whether she forced his resignation in the midst of the ongoing coronavirus pandemic.
"The only thing I think I could say is it's been a grueling couple of years and changes in administrations happen," Whitmer said Jan. 25.
When the separation agreement and payment to Gordon came to light earlier this month, Whitmer rejected a reporter's use of the term "hush money" to describe the severance payment coupled with non-disclosure agreement.
"I really bristle at that characterization," Whitmer said March 2. "It is the nature of a separation agreement when someone in a leadership position leaves, you know there are terms to it and you can't share every term to it. That's simply what it is."
Some Republicans saw Gordon's non-disclosure agreement as a means of keeping him silent about the Whitmer administration's initial policies regarding the placement of COVID-positive seniors into nursing homes during the early weeks of the pandemic.
Rep. Steve Johnson, an Allegan County Republican and chairman of the House Oversight Committee, said he wants Whitmer and Gordon to testify before the panel now that they've agreed to dissolve the nondisclosure agreement.
"While it's disappointing it took tremendous, sustained public pressure and outcry to get to this point, I am glad that the governor and former Director Gordon have finally made it possible for them to offer open, honest testimony before the Legislature on the state's controversial nursing home policy," Johnson said in a statement.
Gordon sent Johnson a letter Thursday "in lieu of testimony," hinting that he and Whitmer had unspecified policy disagreements.
The former health department director said his Nov. 15 "pause" on indoor dining that lasted 10 weeks "was developed and then extended through days of deliberation."
"On occasion, there were robust conversations about policy issues where reasonable people could disagree and did," Gordon wrote. "This was healthy: the stakes were life and death, and different people have different roles."
"Michigan was hit hard by COVID early, and initially had the third highest fatality rate in the nation," Gordon added. "But different perspectives can produce strong outcomes. Michigan has fallen to 21st in deaths per capita."
Gordon's Feb. 22 separation agreement was signed by Whitmer's chief legal counsel, Mark Totten, and involved the Attorney General's office.
On Jan. 22, Totten sent Gordon an email at 2:42 p.m. notifying him "that the governor has accepted your resignation," according to an MDHHS email obtained by Crain's through a FOIA request.
"If you would like to discuss an executive separation agreement, please contact Assistant Attorney General Jeanmarie Miller, Department of Attorney General, at [email protected] to schedule a meeting," Totten wrote in the email. "Thank you for your service."
Eleven minutes later, Gordon announced his resignation on Twitter, just hours after he signed a coronavirus public health order extending a ban on indoor dining through Feb. 1.
Whitmer appointed Gordon's senior chief deputy, Elizabeth Hertel, to take over the department.
Hertel's appointment remains under scrutiny by the Republican-controlled Senate, which has until Tuesday to vote to reject her for the post.
In his letter Thursday to the House Oversight Committee chairman, Gordon said he's "happy now to be a private citizen, see my family, and contribute to our country in new ways."
"Governor Whitmer deserves a health director with whom she is comfortable," he said.