The Middletown Press (Middletown, CT)
Attorney may appeal state FOI ruling
MIDDLETOWN — The attorney for two council members named in a Freedom of Information Commission complaint by the mayor is considering an appeal of the panel’s decision related to release of what the lawyer calls privileged and confidential documents.
The documents at the center of the disagreement are part of an investigation done last year into claims Mayor Dan Drew intervened to block a pay raise for Board of Education human resource officer Michele DiMauro.
The investigation ended with no conclusion that the mayor influenced the pay process.
Drew filed with the FOIC as a private citizen on Aug. 7, 2018, seeking release of all correspondence between attorney Mary P. Mason and members of the Common Council.
Mason is the private LeClairRyan attorney the council hired to look into the allegations Drew intervened in the DiMauro matter.
“We cannot conclude one way or the other that the mayor actually influenced the process,” Mason wrote in a summary of her report in August 2018.
The probe was overseen by a subcommittee of council members: Deputy Majority Leader Mary Bartolotta, Minority Leader Sebastian N. Giuliano, and the now late Majority Leader Thomas Serra.
In response to Mason’s report, Drew said he had been cleared of allegations against him. He charged two councilors embarked on a politically motivated attack on him, and squandered thousands of dollars in attorney’s fees in the process.
In its final decision Sept. 11, the FOI Commission ordered the city to release some of the documents Drew sought.
Drew has said the “false accusations” constituted “a witch hunt,” and asserts the documents are public record.
However, although the FOIC ordered the documents released
“forthwith,” when a lawyer “in good faith” believes there is a basis for an appeal, enforcement of the ruling can be delayed, according to attorney Michael Harrington, of the Hartfordbased firm FordHarrison, who represents Bartolotta and Giuliano.
“When you disclose the name of a witness during a harassment investigation, you create a potentially chilling environment for people to not want to come forward,” he said.
“In this case, some people came forward very reluctantly, because they have to work in the same building with the people they’re talking about. We feel that is an issue that needs to be looked at by a court,” Harrington said.
There is a second issue, Harrington said, that the FOIC ruled certain correspondence sent to and from Mason were excluded from lawyerclient privilege.
At the hearing, Harrington asked why this ruling was made.
“The explanation was those [were] related to the investigation and not the provision of legal advice. That seems to be a distinction without a difference. The engagement was to do an investigation and provide any related legal advice,” Harris said. “Those things aren’t normally separated.”
Bartoletta said the “FOIC completely rejected the mayor’s argument, and found that the attorneyclient privilege did exist.”
As members of the legislative branch of city government, Bartolotta said, her panel “had a clear obligation” to look into employee concerns.
“This was never about wanting to disparage the mayor. Unfortunately, over a year later, we have had to continue to protect those same employees. Now, we have to spend an additional $40,000 to do so, due to the FOIA process brought by the mayor and Councilman Gerry Daley,” she said.
Drew, however, said he pleased that the FOIC ordered the documents he requested to be released, noting he believes “a smokescreen argument” is now being used.
“The truth always comes out in the end, and, no matter how hard they try, I have faith that it will in this case, too,” he said.
“The Common Council subcommittee inappropriately used taxpayer money to attempt to destroy me, and to prop themselves up politically by prying into the personal lives of me and several members of the city staff. This is a massive abuse of the public trust, and we all have a right to know,” Drew said in an email.
“This is why we have the Freedom of Information Act — to prevent government officials from carrying out inappropriate behavior in the shadows,” Drew said. “The public has a right to know what the Common Council did using their money, and how significantly out of bounds they went in abusing the authority they were given.”
Drew also argued the subcommittee had an illegal meeting in the summer of 2018, but the FOIC rejected that claim, because the mayor didn’t file his objection within the 30day limit.
The commission also struck down his argument that the panel held an improper meeting Oct. 18, 2018, saying the matter is governed by council rules, and is not a violation of the FOIA.
About half of the emails, and some portions of them, were ordered to be withheld under attorneyclient privilege.
At the Sept. 11 hearing, Drew agreed to the stipulation that current city employees’ names and their positions be redacted. The names of current city and school board employees, as well as their positions, will be blacked out to protect their identity, according to the FOIC’s decision.
Daley also filed two FOIA requests Jan. 3, which were later combined, after he was denied copies of invoices and billing statements from LeClairRyan related to the investigation. Council Clerk Linda Reed and Town Clerk Ashley Flynn were named as respondents.
The FOIC eventually dismissed the complaint against Flynn because she “does not maintain the invoices.”
Reed was asked by the mayor and certain council members to release the records without redactions, according to the FOIC decision.
“It is found that the clerk of the common council was in an untenable position. [She] chose not to disclose the requested records without redactions, and to await the advice of counsel,” according to the FOIC ruling.
The panel dismissed the claims against Reed.
Drew also alleged Flynn and Information Technologies Director Brian Skowera did not turn over public records. The mayor withdrew his complaint against both after they testified in front of the FOIC.
UPSEU Local 6457 President Geen Thazhampallath alleged Drew put city employees in impossible situations with his demands.
“It created anguish for them, and put them in a very difficult ethical spot, where they had to choose between their employment or stand up for their fellow employees,” he said, referring to Reed.
“She bore the brunt of his attacks and hostility. The FOI Commission and others are recognizing she did the right thing,” Thazhampallath said.
Christine Bourne, president of the AFSCME Local 466 union, said she’s pleased certain workers will be protected.
“The vigor with which people went after that information was scary. It is very troubling,” she said. “It’s frustrating that employees’ wishes to remain private weren’t upheld by this administration. The vehemence with which they went after the information made people very nervous about what it was going to be used for.
Thazhampallath is reassured employees who spoke out will remain anonymous.
“I’m happy to see that they don’t have to be scared that they’re going to be outed, and if the mayor, in the next 45 days he has left, tries to go after them. The very action of coming forward is a hard thing to do, and they took the courage to do it,” he said.
Thazhampallath is calling for a review of city procedures related to the grievance process.
Editor’s note: Jeff Mill and Helen Bennett contributed to this story.