A hearing officer for the state’s Freedom of Information Commission is reviewing a settlement agreement between the City of Ansonia and a former zoning officer to determine whether the city can keep it hidden from the public.
The move comes after the Valley Indy filed a complaint against the city under the state’s Freedom of Information Act, saying the agreement should be made public.
Background
The June 2014 agreement resolved a labor complaint the former zoning and anti-blight officer, James Tanner, filed against the city months after he was fired by Mayor David Cassetti in December 2013.
Tanner was one of a handful of officials Cassetti replaced with new appointees soon after taking office.
In the complaint Tanner said he wanted his old job back, as well as back pay, lost benefits, and attorney’s fees. He was earning about $46,000 annually in the position when he was terminated.
But Tanner dropped the complaint after reaching a settlement the city’s lawyer would describe only as “not monetary” in nature.
The city has declined to release a copy of the actual settlement it signed with Tanner because they say the document contains a confidentiality clause prohibiting its disclosure unless “a legal authority” compels it.
The Valley Indy filed a complaint with the state’s Freedom of Information Commission June 27 seeking access to the settlement agreement, because the FOI Act itself and prior decisions by the commission say agreements between public agencies and employees should not be shielded from public view.
For example, in a 2001 case involving the city of Torrington, the commission cited a 1994 decision in stating that “when addressing the disclosure of a settlement agreement between a public agency and a public employee, that such agency may not simply contract away the public’s right to know under the FOI Act by including a provision prohibiting any party to the agreement from disclosing its terms.”
FOI Hearing
A “contested case hearing” in the matter took place Tuesday (Jan. 20) afternoon before FOI Commission Hearing Officer Clifton A. Leonhardt at the commission’s offices in Hartford.
Article continues after audio of hearing.
But there wasn’t much in the way of a contested case after a lawyer representing the city said the only reason he was there was because Tanner’s lawyer didn’t want the city to release the settlement.
“We felt this could be settled,” the lawyer, Christopher Sugar, said, before giving Leonhardt a printout of an email exchange between Tanner’s attorney, Frank Burke, and Ansonia Corporation Counsel John Marini.
Marini emailed Burke Jan. 5 advising him of Tuesday’s FOI hearing after Sugar said the two had discussed the case over the phone.
Marini’s email included the quote from the same 1994 FOI Commission decision cited above (and in a June story).
“We would simply like to avoid the time/cost of the hearing given the likelihood of successfully preventing the disclosure,” Marini wrote. “I don’t think that there is anything sensitive or embarrassing to either side that would complicate its disclosure. My guess is the paper would like to see if it was a monetary settlement, which it was not.”
Burke responded to Marini Jan. 8.
“My client does not consent to the release of the agreement,” he wrote to Marini. “The agreement specifies it will not be released unless ordered by a legal authority. If you feel that disclosing that it was not a monetary settlement would suffice we would consider waiving our objection.”
(The city has said for months that the settlement was not monetary in nature.)
Article continues after the emails.
“The city wants to honor Mr. Burke’s objection,” Sugar said before handing Leonhardt a copy of Tanner’s settlement agreement.
“That seems like probably the whole case,” Leonhardt, the hearing officer, responded. “What you’re telling me is here’s the document in question, but you don’t want to disclose it to the complainant today, or to make it subject to general public disclosure?”
Sugar said yes, but that if the FOI Commission tells the city it has to release the document, it will.
“We would honor that decision,” he said.
“We cited the legal authority that we believe supported the release of the agreement,” Sugar said of Marini’s Jan. 5 email to Burke. “He disagreed with it.”
Leonhardt then read the email.
“That’s a correct statement of law,” Leonhardt said in reference to the 1994 FOI Commission decision ruling.
“You recognize this is the law, but you want to honor Mr. Burke’s objection?” he asked Sugar.
“My client wishes to honor Attorney Burke’s objection,” Sugar replied.
Neither Burke nor Tanner attended Tuesday’s hearing.
Prior Cases
Leonhardt then handed out copies of several legal decisions he said were on point.
He first cited a 1990 Connecticut Supreme Court decision that struck down a provision of a collective bargaining agreement that ran counter to state law.
“But it’s the same principle, that you can’t have private agreements, whether it’s a collective bargaining agreement or a settlement like in this case, that supersedes state law,” Leonhardt said.
He also handed out a 2006 FOI Commission decision that ruled that the City of New London had to disclose settlement agreements it had reached in an eminent domain case even though they contained confidentiality clauses.
Leonhardt also pointed out a 2007 FOI Commission case in which a state agency had settled a lawsuit that and the settlement agreement contained a confidentiality clause. The clause was voided.
“I’ve given you cases of what I think the law is today,” Leonhardt said. “Does anyone want to offer any argument that’s contrary to that law?”
The Valley Indy did not.
Sugar said Burke’s objection was based on part of the FOI Act which prohibits disclosure of employee records if the disclosure would constitute an invasion of personal privacy.
A 1993 decision from the state Supreme Court established a two-prong test for determining whether a record’s release would result in an invasion of privacy: “only when the information sought by a request does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person.”
Sugar said the city doesn’t necessarily believe disclosing the settlement would constitute such an invasion of privacy.
“While we might come to a different conclusion than attorney Burke, we are going to honor his reasonable belief as a member of the bar and a person we’ve dealt with on numerous occasions,” he told Leonhardt.
The hearing officer, having read the document, appeared to take a dim view of the argument.
“You could have disclosed the records without (Burke’s approval),” Leonhardt told Sugar. “You could have said ‘There’s nothing sexual, there’s no medical records, there’s nothing like that, so we don’t see any reasonable belief they would constitute an invasion of privacy, we’re just going to give them out.’”
“There was a time in the past when this agency found some violations because people did what you did, and said you were incorrect, there was no reasonable basis to believe invasion of privacy, but we haven’t been doing that for quite awhile,” Leonhardt said later.
The Valley Indy argued the settlement was a legitimate matter of public concern because it relates to the resolving of a dispute between the city and one of its former employees.
Leonhardt said he will review the settlement agreement further and then write a report recommending whether it should be disclosed or not.
The FOI Commission will then make a decision.
