A report authored by a lawyer detailing his investigation of a complaint made against the Derby police chief could soon become public.
However, another lawyer representing Derby is arguing that releasing it would be improper under state law.
The investigative report was used as the basis for a wrist slap the Derby Board of Police Commissioners gave Derby Police Chief Gerald Narowski last March for violating his department’s social media policy.
The report into his conduct would ordinarily be kept secret because the communication was from a lawyer to a client, making it subject to attorney-client privilege.
That’s according to a hearing officer from the state’s Freedom of Information Commission.
But the city’s police commission shared their lawyer’s report about Chief Narowski with Chief Narowski, which erased attorney-client privilege and made it available to the public, the hearing officer ruled.
The hearing officer’s ruling doesn’t become official until it is endorsed by the full Freedom of Information Commission, which looked like it was going to happen May 10 until a Derby city attorney convinced them to hold off, saying state law had not been properly considered.
The commission is scheduled to discuss the case again Wednesday (May 24).
Former Derby City clerk Laurene Boulton is fighting to get the investigative report released.
The FOI case is related to a lawsuit she filed against Chief Narowski.
Boulton, whose husband is a Derby police sergeant (the families were formerly close) is trying to get the investigative report released to bolster her case against the police chief.
Click here for a previous story on her lawsuit.
In 2015 Boulton was fired from a clerk’s position in Derby City Hall because the city learned she had previously been charged with shoplifting.
Her lawsuit against the chief alleges, in part, that Narowski made a disparaging remark about her arrest, part of a larger harassment campaign against her.
The chief’s lawyer did not return a call for comment, but has filed motions to have the lawsuit thrown out of court.
A status conference on the lawsuit is scheduled for 2 p.m. June 12 in Milford.
Before filing the lawsuit, Boulton had filed a complaint with the police commission against Narowski with similar accusations.
Click here for a previous story.
Investigation, Report, Discipline
In response to Boulton’s complaint, the police commissioners hired a lawyer, Eric Brown, to investigate and give them advice about how to handle it.
Brown investigated and wrote a report documenting his findings and advice.
The police commission sent Narowski a letter March 8, 2016 notifying him that Brown’s report would be discussed at a March 16 meeting.
The commissioners also gave the chief a copy of Brown’s report.
The police commission then met March 16 and discussed the case in a closed-door “executive session” for two and half hours with Narowski and Fran Teodosio, one the city’s corporation counsels.
After the discussion, the police commissioners voted to put a letter in Narowski’s file for seven months saying he violated the department’s social media policy.
Boulton later sued the chief.
Her lawyer later filed an FOI complaint with the state after the city refused to release Brown’s investigative report to her.
The city said Brown’s report was protected from public disclosure by attorney-client privilege — the client being the Derby police commission.
The city did provide Boulton’s lawyer, Patricia Cofrancesco, with a copy of Narowski’s personnel file, along with some emails she had requested.
In February, Cofrancesco appeared in front of FOI hearing officer Kathleen Ross to argue that Brown’s investigative report should be released.
After the hearing, Ross wrote a draft decision saying Derby had to release Brown’s investigative report into the chief’s conduct.
Ordinarily, Ross wrote, the report would be covered by attorney-client privilege.
But since the commission provided Brown’s report to Narowski, who wasn’t a “client,” that made it public.
“The privilege is waived when the communications are voluntarily disclosed to third parties,” she wrote in the report, which is posted at the bottom of this story.
Derby’s lawyer, Fran Teodosio, argued that the police commission had to give Narowski the report in order to give him due process, citing the U.S. Constitution and a state law that spells out the procedures to go through when a town wants to fire a police chief.
Ross said the city could have treated the chief’s discipline matter fairly without handing him Brown’s entire report.
“The commission does not question the assertion that the police chief was entitled to due process before he was disciplined,” she wrote, emphasizing Narowski was merely disciplined, not dismissed.
“However, it is found that the respondents failed to prove due process required that the chief receive a copy of the report.”
The full state Freedom of Information Commission discussed the case May 10.
Teodosio again said state law regarding police chiefs being fired meant the police commission was compelled to give Narowski the investigative report.
“Dismissal was a potential penalty at the time of this hearing,” Teodosio said. “20/20 hindsight is wonderful, and it ended up being just a disciplinary action,” but the commission didn’t know that before the March 16 meeting, he said.
Owen Eagan, the chairman of the Freedom of Information Commission, asked a question suggesting the public shouldn’t be kept in the dark about a public employee’s discipline.
“They made a decision based on information received in executive session,” he said. “Doesn’t the public have a right to know what the basis of that decision was?”
Colleen Murphy, the Freedom of Information Commission’s executive director and general counsel, said the police commission could have given Narowski a description of the charges against him without handing over the full report.
“It’s not required that you give the report you’re claiming is attorney-client privileged to the person,” she said.
Murphy also said that the state law cited by Teodosio contemplates a “public hearing” taking place.
But, in Derby, the police commission met behind closed doors in Narowski’s case.
“I’m inclined to agree with hearing officer’s report,” Matthew Streeter, one of the commissioners, said.
Another, Christopher Hankins, said “it’s closer for me whether or not (the attorney-client privilege) was waived.”
Streeter said that by giving Brown’s report to Narowski, the privilege was destroyed.
“It wasn’t the client. It wasn’t the attorney,” he said. “So it was definitely a third party.”
Ultimately no action was taken.
Members of the commission voted unanimously to table the issue and review briefs prepared by lawyers on both sides.
Teodosio told the Valley Indy the police commission was just trying to be fair to everyone involved in the case.
“We weren’t waiving (the privilege), we were complying with the law,” he said.
He said if the FOI Commission votes to make Derby disclose the report, the city would have 45 days to appeal the case to Superior Court.
“But that’s a policy question that would be up to the police commission,” he said.
Cofrancesco, Boulton’s lawyer, declined to discuss the case extensively.
“I honestly really don’t want to litigate this in the papers,” she said.
But generally, she said, the report should be made public because the public paid for it.
“In my view anything that implicates the expenditure of taxpayer dollars is fair game in terms of disclosure,” she said.
The Valley Indy filed a Freedom of Information request seeking the document Friday (May 19).
In an e-mail, Narowski said the FOI case is “a legal question of due process and privileged communications.”
He declined to comment on the lawsuit because it’s pending in court.
The audio from the May 10 hearing is posted below, followed by a draft decision from the FOI hearing officer: