Ex-Michigan health director got payout in confidentiality deal
Lansing — Michigan Gov. Gretchen Whitmer's administration agreed to pay former state health department director Robert Gordon $155,506 in a separation deal that also required the two sides to maintain confidentiality about the circumstances that led to his abrupt departure.
The agreement is the clearest evidence yet that the split between Gordon, a central figure in the state's response to COVID-19, and Whitmer was not amicable, and it shows the Democratic administration used taxpayer funds to ease his departure.
On Feb. 22, one month after Gordon resigned without explanation, he and Mark Totten, Whitmer's chief lawyer, signed the four-page agreement. The state agreed to pay Gordon a total that represents nine months of salary and health benefits, and he released the state from any potential legal claims.
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Both Gordon and the Whitmer administration also pledged not to discuss the details of the resignation "in the interest of protecting deliberations among government officials," according to the deal obtained through an open records request.
"In response to any inquiries from prospective employers, employer will state that employee voluntarily resigned," the agreement says.
Both Gordon and Whitmer have refused to say why he stepped down on Jan. 22, fewer than eight hours after he signed an epidemic order to lift the suspension on indoor dining at restaurants.
Separation agreements are common among private business executives and sometimes among government officials, and they often include financial payouts, non-disparagement clauses and legal protections, according to experts.
The agreement with Gordon "speaks for itself" and the state Department of Health and Human Services is "looking forward to the future," said Bob Wheaton, the department's spokesman. Whitmer's spokesman Robert Leddy said the administration can't comment further on the personnel matter under the terms of the agreement.
"Executive separation agreements that include confidentiality terms and release of claims are fairly standard practice," Leddy said.
Totten, Whitmer's chief legal counsel, floated the idea of an "executive separation agreement" soon after the governor accepted Gordon's resignation, according to emails obtained by The Detroit News.
"This email is to notify you that the governor has accepted your resignation as director of the Michigan Department of Health and Human Services today, January 22, 2021," Totten wrote to Gordon. "If you would like to discuss an executive separation agreement, please contact Assistant Attorney General Jeanmarie Miller, Department of Attorney General."
Totten sent the email at 2:41 p.m., 11 minutes before Gordon announced his resignation on social media.
Gordon declined to comment on the separation agreement.
Payout concerns GOP lawmaker
But state Rep. Matt Hall, R-Marshall, who chaired the Michigan House Oversight Committee last term, said he was "stunned" by the separation agreement. The lawmaker said he had grave concerns about the use of government funds to prevent taxpayers from knowing what was behind Gordon's departure.
"The people of Michigan deserve to know what was going on here," Hall said.
Attorney Jason Shinn, who has practiced employment law for 20 years, said executive separation agreements usually include a release from potential future legal claims, compensation details and non-disparagement requirements, which bar the two sides from talking negatively about each other.
Shinn of the Oakland County-based Shinn Legal said separation deals within the government are not unheard of among high-level officials. The fact that Gordon signed one isn't necessarily in itself a "smoking gun" that a major falling-out had occurred with Whitmer, he said.
"There are benefits to both parties to having it in place," said Shinn, who highlighted the protection against future legal claims.
“There’s just reasons why both sides would want one. So that in of itself is not necessarily a red flag for me."
The agreement says it "constitutes a final and binding agreement resolving all issues" concerning Gordon's employment with the state. In the deal, the state also promises to provide legal representation for Gordon in matters relating to actions he took while "acting within the scope of his authority" as director.
Dennis Muchmore, who served as chief of staff for former Gov. Rick Snyder, Whitmer's Republican predecessor, said he doesn't recall similar separation agreements being signed during the Snyder administration.
"Sometimes, we would give them a couple of weeks of vacation at the end, but most all of the ones I can remember always had time coming to them," Muchmore said of departing officials. "I don’t know of any cash involved."
Press conference 'relief'
The emails obtained by The News also show that Whitmer's staff decided against having Gordon appear at the morning Jan. 22 press conference where the epidemic order to lift the ban on indoor dining — signed by Gordon himself — was announced.
In an email, Gordon described his feelings about potentially not having to appear at the event as "relief."
On the evening of Jan. 21, the then-state health department director had asked one of his employees to schedule an upcoming meeting so he would have downtime after the press conference ended.
Andrea Bowden, a state health department staff member, responded that Gordon's name wasn't on the list of attendees for the press conference.
"OK," Gordon responded. "If they don’t want me there that will be a relief, but I think they do."
At 6:25 p.m. on Jan. 21, Bowden informed Gordon the governor's office had "switched gears" and "you don't need to participate."
Because of his public silence since his resignation, it's unclear whether the Jan. 22 epidemic order played a role in his departure. That order allowed indoor dining at Michigan restaurants to resume on Feb. 1, 75 days after it was suspended amid surging COVID-19 infections.
In the press release announcing the order, Gordon cautioned that "unmasked, indoor activities like dining and drinking" are "a source of high risk."
At 7:49 a.m., less than two hours before the 9:30 a.m. press conference announcing the restaurant epidemic order, Sarah Esty, senior deputy director for policy and planning administration at the state Department of Health and Human Services, sent Gordon an email asking if she had his "approval to sign" the order. Gordon responded "yes" at 7:52 a.m.
The order allowed restaurants to operate at 25% capacity with a 10 p.m. curfew on indoor dining each evening.
'I wish you the best'
Seven hours after sending that email, Gordon tweeted he had resigned from the Whitmer administration. Within 20 minutes, Whitmer announced she had picked Elizabeth Hertel, the department's senior chief deputy director for administration, to take his place.
"Robert Gordon has resigned from his position, and the governor has accepted his resignation," the press release from the governor's office announcing Hertel's promotion said about the former director.
Three days later, Whitmer declined to say at a press conference whether she asked for Gordon's resignation.
"To lead this department in unimaginable circumstances, it has been grueling," Whitmer said on Jan. 25 about Gordon. "On behalf of all of the people of Michigan, I want to thank him for his service to our state. He worked hard to protect our public health."
Whitmer announced Gordon's hire in January 2019, less than two weeks after she took office. The state agreed to pay Gordon $175,000 a year in his role according to Whitmer's office at the time.
He previously held senior roles in the Office of Management and Budget and U.S. Department of Education under former President Barack Obama. He also served as senior vice president for finance and global strategy at The College Board, a nonprofit based in New York focused on expanding access to higher education.
Gordon gained the public spotlight after the Michigan Supreme Court ruled Oct. 2 that Whitmer had violated her constitutional power by continuing to issue executive orders to combat COVID-19 without the approval of state lawmakers. The governor's administration quickly shifted to using epidemic orders issued by Gordon under the Public Health Code to require masks be worn and impose restrictions on public gatherings.
Gordon appeared at multiple legislative hearings, where he defended Whitmer's pandemic response against criticism by Republican lawmakers.
On Jan. 22, he received multiple well-wishes and notes of appreciation from senders, many of whom appeared confused about the circumstances of his departure. Some thought he was leaving for a job in President Joe Biden's administration.
"You have been an incredible addition to a department that was struggling, to say the least," wrote Toni Carstens, who works for the department in Marquette County. "I wish you the best in your future endeavors and know that you will be successful at whatever it is you are called to do."
Gordon now has been tapped to serve as a public service scholar at the University of Michigan Law School, said Gil Seinfeld, an associate dean at the school.