Required approvals for settlement
Settlements of less than $20,000
For settlements of less than $20,000, other than a workers compensation settlement, assigned counsel or Labor Relations representative must submit a written settlement recommendation, including the procedural status of the case, the proposed settlement terms, and a summary of why settlement is appropriate, to the responsible Managing Counsel for review and approval. Managing Counsel may approve the settlement or seek additional information from the assigned counsel before making a final decision and submission for payment as outlined herein.
Settlements of $20,000 or more
If assigned counsel seeks authorization to settle a matter in the amount of $20,000 or more, other than a workers compensation settlement, assigned counsel or Labor Relations representative must initially comply with the requirements outlined above. Thereafter, a settlement of $20,000 or more, other than a workers compensation settlement, requires the approval of the General Counsel of MassDOT followed by the approval of the General Counsel of the Executive Office for Administration and Finance. Assigned counsel shall provide the General Counsel of MassDOT and the General Counsel of the Executive Office for Administration and Finance with:
(i) a written settlement recommendation, including the procedural status of the case and a summary of why settlement is appropriate; and
(ii) the controlling complaint, if the matter is in litigation, and the most pertinent judicial decision, if applicable
Settlements of Workers Compensation claims before the DIA
(i) Settlements of $100,000 or more: MassDOT may agree to a settlement of a workers compensation claim of $100,000 or more only with the advance approval of: (i) the General Counsel of the Human Resources Division (HRD); (ii) the General Counsel of MassDOT and (iii) the General Counsel of the Executive Office for Administration and Finance. After approval is received by the General Counsel of HRD and the General Counsel of MassDOT, the General Counsel of the Executive Office for Administration and Finance shall be provided with a written settlement recommendation, including the procedural status of the case and a summary of why settlement is appropriate.
(ii) Settlements of less than $100,000: For workers’ compensation settlement agreements obligating the Commonwealth to pay less than $100,000, HRD must have the advance approval of MassDOT’s Chief Human Resources Officer or their designee.
Settlements in cases involving the Attorney General’s Office
Where MassDOT is represented by the Attorney General’s Office or by a Special Assistant Attorney General, MassDOT may agree to settle litigation only with the approval of the Attorney General’s Office. In addition, settlements over $2,500 and arising under G.L. c. 258 require the approval of the Attorney General’s Office regardless of representation.
Record keeping and tracking of settlements
The Secretary of the Commonwealth’s Statewide Records Retention Schedule applies to the retention of settlements and relevant supporting documentation. See Schedule at B05:0-03: Litigation Case Files; D01-01(c): Primary copies of payment support documentation and transaction Postings; E05-01: Employee Complaint/Investigation/ Disciplinary Records; B05-01: Landmark Cases; E05-02(c): All other records.(1)
For any matter that is settled, other than settlements of labor grievances or affirmative litigation, MassDOT and departments shall, subject to the applicable records retention period, maintain a complete file consisting of: (i) the underlying claim or complaint; (ii) the settlement agreement; (iii) any settlement recommendation memoranda and attachments; (iv) all documentation submitted or received from the Office of the Comptroller under 815 CMR 5.00 et seq., and the Comptroller’s Settlements and Judgments Policy; (v) documentation of all required approvals; and (vi) documentation of payment of the claim, such as an email from CTR confirming payment.
MassDOT shall track settlements that it enters into which shall include: (i) the claimant’s name; (ii) the date of the fully executed settlement agreement; (iii) the amount of settlement; (iv) the MassDOT department at issue; and (v) the type of claim. The tracker maintained by MassDOT shall be treated in relevant part as a public record, unless an applicable exemption applies.
Prior to destruction of settlement agreement records, application must be made to the Records Conservation Board.
Settlement Agreements are public records
Under established case law, settlement agreements generally are public records but may be subject to redactions for information the disclosure of which may constitute an unwarranted invasion of personal privacy under G. L. c. 4, § 7, cl. 26(c). Absent unusual privacy concerns, settlement agreements should include language providing that the agreement will be considered a public record in its entirety, subject to applicable exemptions provided in G.L. c. 4, § 7, cl. 26.
MassDOT may otherwise consider settlement language agreeing to redactions when: (i) required by statute; or (ii) the language is requested by a claimant to address an unwarranted invasion of personal privacy or safety concern, the language is approved by the General Counsel of MassDOT, and the claimant’s preference for the language is memorialized in the settlement agreement.
Nondisclosure and Confidentiality clauses are prohibited
The use of nondisclosure clause or a confidentiality clause in settlement agreements is prohibited. For the purposes of this policy, a “nondisclosure clause” or a “confidentiality clause” is a term or condition in a settlement agreement that would prevent a party from disclosing or discussing the underlying facts and circumstances of their claim or the existence of a settlement.
Contract claims and disputes
In accordance with 815 CMR 5.07(2), this policy generally does not apply to the resolution of disputed contract claims for payment resolved at the administrative level
as part of a dispute resolution mechanism of contract management prior to the initiation of litigation, including:
(i) the disposition of disputes pursuant to the process established in M.G.L. c. 6C, § 40;
(ii) the resolution of claims alleging elevated sodium and chloride concentrations in water supplies pursuant to the MassDOT’s Salt Remediation Program; and
(iii) the resolution of claims for damage to highway and bridge safety signs, signals, guardrails, curbing and other highway and bridge related facilities pursuant to MassDOT’s accident recovery program as authorized by M.G.L. c. 6C, § 4.
Office of the Comptroller’s Regulations and Settlements & Judgments policy
The Office of the Comptroller’s settlements and judgments regulations, 815 CMR 5.00 et seq., and the Comptroller’s Settlements and Judgments Policy, are applicable to all monetary settlements for MassDOT within the scope of 815 CMR 5.00 et seq., whether the settlement occurs prior to or after the institution of litigation, and whether the settlement is paid from agency funds or the Settlements and Judgments Reserve. The requirements set forth in this Policy serve as a supplement and do not supersede the requirements prescribed by the Office of the Comptroller.