On the annual “Water Day” in 2009, the final day of Stonington’s summer recreation program, town employees were wearing bathing suits at work.
That’s how one young woman, the town’s program director, was dressed when First Selectman Edward Haberek Jr. gave her a hug. He knew she was leaving for a new job out of state, and the hug, which Haberek called “more of a tap on the shoulder,” was allegedly his way to say, “Good luck to you, you’re a good employee.”
The woman didn’t take it that way. That incident became part of a written report she filed with the town administrative director, in which she conveyed that the behavior of the town’s chief executive was “inappropriate” and made her feel uncomfortable.
Though workplace harassment is a major employment law issue, this legal tale has a bigger element: freedom of information. The question now is, should the woman’s report be a public document? Neither she nor Haberek really want it to attract any more attention.
During the first week of September, the three-member Stonington Board of Selectmen will decide whether to seek a court ruling about where this kind of report falls under Connecticut’s public records law. Otherwise, it can be released Sept. 8.
Town Administrative Director Vincent Pacileo, whose office handles such reports, is strongly in favor of battling on in court. Pacileo testified in support of the ex-employee’s “privacy” and would like to establish protection for such complaints. “It’s a balance between the political dynamic, where I try to always have transparency and openness, [versus] the principle of an employee’s confidentiality,” Habarek said.
Last September, reporter Joseph Wojtas, of the New London Day newspaper, asked for the woman employee’s harassment report against Haberek, under Connecticut’s Freedom of Information Act.
In a letter to the Day, Pacileo says he “made an independent evaluation” and concluded that the personal privacy of both the town employee and Haberek “outweighs the public interest in disclosure,” and refused to release it. Woitas and The Day appealed, and the state Freedom of Information Commission ruled, in a 4 to 2 vote, that the report should be released with the woman’s name removed.
Stonington is represented by veteran New London trial lawyer Thomas Londregan. Reporter Wojtas argued the FOI case for his newspaper.
Londregan contended the report was exempt from state FOI law under a section that excludes public access to preliminary drafts or notes. He also argued, under the 1993 Connecticut Supreme Court landmark of Perkins v. FOIC, that the complaint was part of a personnel or similar file, did not pertain to legitimate matters of public concern, and would be “highly offensive to a reasonable person.”
Londregan, of New London’s Conway, Londregan, Sheehan & Monaco, said he finds the informal administrative hearing process at the FOIC far different from courtroom procedures. “It can be very strange,” he said, not to be able to exclude much evidence on grounds of relevance, or hearsay.
In this case, various other allegations of the mayor’s “inappropriate” statements or conduct toward women were brought in to show a pattern of behavior. “I tried to keep that out,” Londregan said.
At the May FOIC hearing, the former employee appeared and testified that she had not even wanted her complaint investigated, let alone released to the public. Under direct questioning from reporter Wojtas, the woman testified she had withdrawn her complaint voluntarily, under no pressure from Haberek.
Wojtas was able to introduce as “Exhibit A” a sharply-worded 2009 letter to Haberek signed by seven Stonington city department heads. In it, they welcomed an upcoming “team retreat” for top managers, hoping it would help overcome their “current inability to recapture the productive synergy and climate of mutual respect and trust we once enjoyed.”
The letter stated that Haberek’s alleged “angry outbursts” had left managers feeling demeaned and intimidated. His “inappropriate remarks, particularly in regard to gender, have resulted in feelings of discomfort,” the letter stated. No specific remarks were listed.
Haberek, an eight-year veteran of the mayoral job, which pays $96,000 per year, said the letter was prompted by managers’ opposition to being subjected to performance reviews, which had never been required by Stonington before. “A couple of long-term department heads felt that, since they’re in a government job, they didn’t need performance evaluations. There was never any animosity in the atmosphere,” Haberek told the Law Tribune.
In its post-hearing brief, The Day also cited Tracy Swain v. Haberek, a 2012 Superior Court civil claim by a Pawcatuck resident for negligent infliction of emotional distress. It alleges that Haberek used his city-owned Blackberry to send Tracey Swain two pictures of a man, naked from the waist down. It asserts that the subject of the photos was Haberek himself. Swain, who was represented by attorney Scott Camassar, contends the photos caused her physical and emotional distress, including migraine headaches, and seeks over $15,000 in damages.
Haberek flatly denies sending any such photos.
In the FOIC case, commission staff attorney Victor Perpetua recommended release of the former Stonington employee’s formal complaint, memos, and a week-long chronology of the woman’s meetings and communications with town officials before and after the report was filed. Perpetua found that the documents were public records that reflect “historical facts and decisions, not the town’s deliberations about, or assessments of, those facts.” As such, they were not exempt as preliminary drafts or notes.
Londregan argued that the documents fail the Perkins vs. FOIC test, creating too great an invasion of privacy for a matter of too little public concern. But
Perpetua found nothing in the record revealing “sexually explicit or descriptive information, such as allegations of sexual contact and sexual improprieties” as have been exempted in some other sex harassment cases. “Where’s the part that’s highly offensive to a reasonable person?” Perpetua asked in his report.
Even though the former Stonington employee’s name is known to Wojtas, and the media generally, Perpetua declined “to further publicize the woman’s identity by naming her in this decision.”
When the FOIC’s staff attorney’s findings were voted on by the six-member commission on July 23, there were sharp differences of opinion. Chairman Owen Eagan “seemed shocked” that two commissioners voted to withhold the report, said Londegran. “I came within one vote of a 3 to 3 tie.”
Haberek, meanwhile, said he was surprised that the commissioners of the state’s open government agency deliberated behind closed doors. He noted that the Stonington selectmen deliberate in public. At the FOIC, he said, “Who knows if there’s arm-twisting in the back room? We all have to deliberate in open session, but they can go in a back room.”
In his briefs and in an interview, Londregan said he feared the ruling will have a “chilling effect” on public employees who want to make a confidential report about their superiors. Londregan commented that the new message for public employees in the workplace seems to be not to take notes, and keep everything on an oral basis. “This does not foster good government,” he said.
Wojtas, the Day reporter, suggested in his post-hearing brief that the quickest way for Stonington and Haberek to diminish the effect of the complaint is to release it and thereby “be free to dispute its allegations.”