Gagging on Public Disclosure
By Jim Conley • Feb 15th, 2008 • Email This Post to a Friend •
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Archie’s given some thought to gag orders on legal settlements - like the one in the Geoffrey Hicks case - and I’m running it on the front page [begins below].
When I found the reference to Hicks in the selectmen’s executive session minutes last month [see previous post], I thought Hicks had won an award against the Town. Turns out, taxpayers had to cover for his crimes. It’s what happens when you can’t get beyond a yes or no answer from the town administrator.
I’m willing to bet that these gag orders are the genius of Town Counsel Jennifer Dopazo. But don’t parents have the right to know why the Town shelled out a buck-fifty to this family? What happened and who is responsible? Can it happen again? Who knows.
Here’s what Archie has to say:
Transparency in governance is important for democracy. In Brookline we have the benefit of the open meeting and public records laws, as well as (only fairly recently) the Town’s Whistleblower Policy. But what about the settlement made by Brookline as defendant in the legal claims asserted against it arising out of the acts of a Brookline school teacher involving an underage freshman student, reported by the Brookline TAB (February 12, 2008), in the amount of $150,000 of Brookline public funds?
No, since the settlement included a “gag clause” imposing on the parties to the settlement obligations NOT to discuss the matter. Clearly, there is no issue of municipal (in the nature of national) security involved.
Of course the claimant former student and her family may desire privacy. But many of the details regarding the acts have been made public over the years. This privacy must be weighed against the rights of the public, especially when public funds are involved.
Compare the situation of comedian Bill Cosby who was the subject of a lawsuit involving an alleged sexual encounter with a woman. This lawsuit involved only private parties and no public funds were involved with its resolution. Yet serious questions of public policy regarding the rights of the public to know were raised and addressed in the lawsuit and its settlement. Details are available in an article titled “Bill Cosby Strikes Confidential Settlement in Sex-Assault Lawsuit” by Shannon P. Duffy, available here.
Since the Brookline case involved public funds, the issues raised are a fortiori than in the Cosby case. The theory of liability on the part of Brookline as defendant most assuredly was not based upon the teacher being authorized by the Town or its officials to do what he did. Rather, the theory of liability would seem to be based upon concepts of misfeasance, malfeasance or maladministration on the part of Town officials and employees regarding proper supervision of the teacher in recognition of the Town’s responsibility to protect its students, especially those of such tender age as here.
$150,000 is not chump change. This was not a nuisance settlement. Did Town Counsel’s office in defending the Town learn of information regarding any such misfeasance, malfeasance or maladministration on the part of school officials and employees concerning the teacher and this underage student? Might such information be important to the Brookline public, in particular parents of children at Brookline High School? Was the Town’s interest in the “gag clause” motivated more at protecting such school officials and employees? Do we know what if any disciplinary steps may have been taken against any such school officials and employees?
(Senator Baker’s question during the Senate’s Watergate inquiry concerning President Nixon’s role comes to mind: “What did he know and when did he know it.” I presume Town Counsel’s office considered this question with regard to school officials and employees concerning the matter here.)
[An aside: Brookline’s Whistleblower Policy was not in effect when the teacher’s acts took place. I wonder if the Policy had been in place whether someone in the school system might have blown the whistle.]
Or was the evidence of liability on the part of the Town really quite weak? If so, why was the settlement made in this amount? Isn’t it important in such circumstances for the Town to resist a settlement for a claim with very little legal basis? Might a settlement under such circumstances serve as a cloud over school officials and employees who had performed responsibly?
The privacy rights of the young student and her family (especially because of available public information on the events) are clearly outweighed by the Brookline public’s right to know why and how its money is being spent. Presumably Town Counsel’s office fully briefed the Selectmen (in Executive Session), who approved this settlement with its “gag clause.” Who are the persons really being protected by this “gag clause”?
Perhaps this matter should be referred to the Attorney General’s Office. I wonder if that Office has a policy on “gag clauses” in settlements involving public funds.
Jim Conley is publisher of On Brookline.
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Gene Nichols recently resigned as President of the College of William & Mary as a result of pressure in the form of being notified that his contract would not be renewed in July. See “Text of Gene Nichols’ e-mail to faculty and staff” dated Feb. 12, 2008, at:
dailypress.com/dp-now-nicholletter_feb12,0,1930435.htmlstory
Nichols displays great courage in matters of principle that he addressed as President of W & M. Note in particular the paragraph at the top of the third page of his letter.
“I add only that, on Sunday, the Board of Visitors offered both my wife and me substantial economic incentives if we would agree ‘not to characterize [the non-renewal decision] as based on ideological grounds’ or make any other statement about my departure without their approval. Some members may have intended this as a gesture of generosity to ease my transition. But the stipulation of censorship made it seem like something else entirely. We, of course, rejected the offer. It would have required that I make statements I believe to be untrue and that I believe most would find non-credible. I’ve said before that the values of the College are not for sale. Neither are ours.”
The matters that gave rise to this forced resignation included First and Fourteenth Amendment issues, speech, religion, race and their impact upon education at W & M. Gene Nichols refused to be gagged.
WHAT DID THE SELECTMEN KNOW WHEN THEY AUTHORIZED SETTLEMENT?
It is not yet clear exactly when the decision was made to release from the bowels of secrecy the Executive Session minutes for the Board of Selectmen’s meeting of May 22, 2007. Jim has a link to these minutes in an earlier related post. Here’s what’s relevant for this current post:
“LEGAL SETTLEMENT
Associate Town Counsel George Driscoll appeared to discuss strategy relative to litigation.
Attorney Driscoll outlined the case of Hicks vs. Town of Brookline.
On motion, it was unanimously,
VOTED: To authorize Attorney Driscoll to settle the case for an amount up to $150,000.”
Even when the Board goes into Executive Session, the open meeting law requires that minutes be maintained. While there is no requirement for a verbatim transcript, surely sufficient detail of what transpired should be reflected in the minutes. What did ATC Driscoll outline to the Board about the claims made against the Town? What did the Town’s investigation and legal discovery in the course of the litigation reveal about potential liability on the part of the Town? What questions or comments were raised by the five (5) Selectmen (at least three (3) of them attorneys) about the claims and particularly the theory of potential liability on the part of the Town? Or was the vote a mere rubber stamp of what the Selectmen were told by ATC Driscoll? It would appear from the formal unanimous vote that the claims had not then been settled or that ATC Driscoll presented documentation of a settlement agreement with a gag clause. ATC Driscoll was authorized to settle for an amount “up to $150,000.” And slam, bam, alakazam, the case was settled for the maximum amount. Coincidence? One hopes there was no leak of the amount authorized to the attorney for the claimants. It would be interesting to find out exactly when, after May 22nd, the case was actually settled to get some idea of how aggressive the settlement discussions may have been in arriving at $150,000 of the Town’s money.
So the minutes (which were presumably released as no longer required to be secret after the settlement was made) do not tell us what, if any, problems there might have been involving school officials and employees for which the Town might bear legal responsibility. $150,000 is not chump change.
WHAT DID THE SELECTMEN KNOW OTHER THAN BY MEANS OF THE OPEN MEETING LAW?
The minutes of the Executive Session referenced in the preceding comment on this post fail to reveal details of what the Selectmen knew when they authorized ATC Driscoll to settle the case for up to $150,000 of the Town’s money. Surely the Selectmen had information about the case other than the presentation of strategy by ATC Driscoll. But what was the extent of such information? Were there written (including electronic) communications by and between the Selectmen, with Town Counsel’s office, with the Town Administrator, with the School Committee, with the Superintendent of schools, with others? Or were there private conversations among some of the Selectmen not in compliance with the open meeting law? Surely the Selectmen were not limited to media accounts of the events.
The result is that the Brookline public does not know the extent of fault or failure, if any, on the part of school officials and employees that may have contributed to the events that occurred; or that steps have been taken to correct systemic fault or failure so that such events should not happen again.
Representative Town Meeting (RTM) provides not only a weak executive branch (Board of Selectmen) but also a weak legislative branch (Town Meeting) for our community of 55,000+. The open meeting law applies to both branches in the conduct of their responsibilities. While this transparency is a good thing generally, it can serve as a handicap in situations such as this. A mayor is not similarly bound by the open meeting law in the performance of executive duties in investigating situations such as in this case. A council or board of alderman as the legislative branch could readily, and timely, provide a check and balance on the mayor by holding hearings subject to the open meeting law (with the availability of executive session when appropriate). (This is now being done in Congress, resuming since the elections of 2006.) But our Town’s RTM is too inefficient to address situations like the Hicks case. Sweeping it under the rug (with a $150,000 broom) fails to provide the answers called for.