An attorney for the Connecticut Freedom of Information Commission is reviewing a report written by the City of Derby’s attorney to determine whether it can be released to the public.
The move comes after a complaint filed by the Valley Indy against the city under the state’s Freedom of Information Act.
Background
In August 2012, Derby Aldermen voted to approve a separation agreement with former tax office clerk Katherine Kulhawik, whom the city suspected of misapplying cash payments and manipulating taxpayer data in the tax office.
As part of the agreement, Kulhawik agreed to resign and pay Derby $9,000 in “damages.” She also agreed not to file a union grievance nor file a lawsuit against Derby. The city promised not to file a complaint with police if she paid the money.
However, the issue resurfaced in December 2012, when the Aldermen approved a motion to “get a report from Corporation Counsel that outlines his investigation and conclusions of the events in the Tax Collection office.”
The next day, Mayor Anthony Staffieri issued a veto, saying he felt it was in “the best interest of the tax payers and residents that such a report not be discussed in public unless six or more members approve of such a report.”
In January, the majority of the Board of Aldermen voted to accept the report as “confidential, attorney-client privileged correspondence.”
The vote kept Coppola’s report secret, unable to be reviewed by the public.
The FOI Hearing
State law allows attorney-client communication to be kept secret, provided the communication has to do with legal advice.
At a contested case hearing Monday (July 1) in front of FOI Commission Hearing Officer Victor R. Perpetua, the Valley Indy argued that the Aldermen did not seek legal advice from their attorney, but merely requested a summary of his investigation, so the document should not be considered privileged.
The Valley Indy further testified that a Valley Gazette article published Jan. 26 indicated that Sheila O’Malley, the mayor’s chief administrative officer, had seen the confidential report. The Valley Indy argued that O’Malley is a third party and the document therefore lost its status as “privileged,” as per state law.
The Valley Indy did not call witnesses to testify.
Coppola represented the Board of Aldermen during the one-hour hearing in Hartford.
Coppola handed in a certified copy of the January Aldermen meeting as evidence.
He said several documents submitted into evidence by the Valley Indy, including the city’s separation agreement with Kulhawik, were not relevant to the complaint, but Coppola did not formally object to their submission.
He said his quotes in the Valley Gazette article seemed to be double hearsay.
Coppola repeatedly said the report was protected by attorney-client privilege. He said the only way to release it would be for the Aldermen to vote to do so.
“In my opinion as corporation counsel, it was legal advice on how certain things were handled in that office,” he said. “As corporation counsel I can’t release that document unless the attorney-client privilege is removed.”
Gerckens Testifies
Coppola called on Alderman Art Gerckens to testify.
Coppola had Gerckens read aloud the Aldermen’s decision to accept the report as attorney-client correspondence.
The Valley Indy was then allowed to question Gerckens.
He was asked two questions — first, whether he voted to release the document to the public, to which he responded “yes.”
The Valley Indy then asked why he thought the report should have been released.
Gerckens testified that there was nothing “earth-shattering” in the report and that it was important for Derby government to tell residents what had happened.
“Where’s the transparency in government?” Gerckens said. “What’s to stop us from making everything attorney-client privilege?”
Perpetua then asked Gerckens if the report was related or connected to legal advice.
“I would have to say no,” Gerckens answered.
Gerckens testified that he thought the mayor may have influenced the Board of Aldermen by sending an e‑mail in December in which he theorized that Gercken’s request for a report was a personal attack of the mayor.
Gerckens read the e‑mail into the record.
Next Steps
Perpetua, the hearing officer, is arguably the state’s top expert on attorney-client privileged correspondence.
He requested Coppola allow him to review the report for him to review. Coppola provided him with a copy.
Perpetua will eventually make a recommendation as to the status of the document to the full Freedom of Information Commission, whose members will ultimately issue a decision.
