ACLU Contends Hartford Can’t Stay Silent on Settlement Details

Valley News Staff Writer
Friday, March 30, 2018

Hartford — The Hartford School District is refusing to divulge how much it will pay to settle a lawsuit filed by the family of a former kindergartner who alleged that school officials didn’t do enough to keep the boy from being sexually abused and harassed by a classmate.

In declining to disclose the financial details, school officials cited three exemptions to Vermont’s public records law that a civil liberties group said no longer should apply in the case.

Meanwhile, a federal judge is reviewing a motion from the two parties to seal the settlement, and an attorney for the school district said a confidentiality agreement is in place.

Hartford School District Superintendent Tom DeBalsi denied a public records request from the Valley News to detail the financial terms of the settlement, citing three exemptions to the law.

The district and the boy’s family, who filed an anonymous suit in 2016 in U.S. District Court in Burlington, settled on March 20, six days before the case was to go to trial.

“The record you request falls under several areas that are all exempt from the public records law(:) student records, records relevant to litigation and records relating specifically to negotiation of contracts,” DeBalsi said in an email on Wednesday.

However, a staff attorney with the American Civil Liberties Union of Vermont told the Valley News this week that she disagreed with Hartford’s response, saying the settlement terms, including the amount, should be subject to disclosure.

At least two of the exemptions DeBalsi cited for withholding the information don’t hold, ACLU staff attorney Lia Ernst said, and the third would be temporary at best.

“The public has an interest in knowing how much the school is settling this claim for,” Ernst said. “There is a strong public interest in not only school finances and how taxpayer money is being spent, but also the amount of the settlement is some proxy for the litigation risk the school thought it was exposed to.”

A settlement agreement in a civil lawsuit is not a student record, nor is it a record relating to a negotiation of a contract, which is an exemption often meant for employment contracts and “certainly not a settlement ending litigation to which a state agency is a defendant,” Ernst said. “That is stretching that exemption beyond recognition.”

The exemption relating to litigation is tied to ongoing matters. Because the case hasn’t formally been closed, the litigation still is pending and could be subject to exemption, but only for the time being, Ernst said.

Regardless of that, though, Ernst said she doesn’t think the litigation exemption is “properly invoked.”

“The ‘relevant to litigation’ exemption is meant to prevent parties from using the Public Records Act to circumvent limitations the court might impose on the discovery process,” she said in a follow-up email. “Because a settlement agreement is outside of that process, the school is invoking the exemption in a situation entirely divorced from its purpose.”

Even if the exemption stands, termination of the litigation is the “absolute outside limit” of applicability, she said.

“We see here an agency stretching an exemption well beyond its intent, another unfortunate example of many Vermont agencies’ reflexive denial of public records requests,” Ernst said.

It is not uncommon for settlement agreements to be sealed or held in confidence between private litigants, but that changes when there is a public agency involved, she said, adding “the public has an interest and a right to know the terms.”

There was a payout of at least $1,500, according to recently filed court documents.

Among those documents is a stipulated motion to file the settlement under seal, but a judge hasn’t yet signed it.

The document says the “plaintiff seeks to have filed under seal the settlement agreement and the plaintiff’s settlement statement, showing how the settlement proceeds are proposed to be distributed.”

“The filing of the foregoing under seal is necessary because the parties have agreed that the settlement and settlement amount are confidential,” the stipulated motion says.

Richard Windish, the Woodstock-based attorney who represents the Hartford district in the case, confirmed last week that the matter had been “resolved,” but declined further comment.

Another attorney who represents the school district, Bernie Lambek, of Montpelier, reached out to the Valley News in response to follow-up questions sent to DeBalsi on Thursday.

Lambek contends the three exemptions in the public records law cited by the school superintendent in denying the newspaper’s request are valid. He said “the case involves a student (and) involved events at school,” so it is a student record. In addition, “a settlement agreement is a contract,” and thus falls under the negotiation of contract exemption, he said.

Also, the case still is pending, so the terms are exempt under the relevant to litigation exemption, he said.

Those aside, the school district entered into a confidentiality agreement as part of the settlement, said Lambek, who took issue with the suggestion that district officials were refusing to divulge information about the terms.

“The settlement agreement contains a confidentially agreement. We are required to honor that,” Lambek said. “If the Public Records Act requires that we produce something then we have to produce it, but we can’t otherwise divulge it.”

Once the case is closed out, Lambek said, he would reassess his position about whether the terms are a matter of public record. He couldn’t say whether his position would change.

Lambek is active on the American Civil Liberties Union of Vermont board of directors.

The settlement is covered by the district’s former insurance company, Liberty Mutual. Lambek declined to answer questions surrounding the school district’s deductible, if any.

The Hartford School Board discussed the settlement terms in executive session, Lambek said. It never voted on the topic, according to meeting minutes.

The boy’s family, who filed the lawsuit in July 2016 under “Mother Doe” and “Father Doe,” have been represented by several attorneys, including Jeff Herman, a Florida-based lawyer who specializes in sexual abuse cases, and Jerome O’Neill, of Burlington.

Reached on Thursday, O’Neill, a former federal prosecutor, also declined comment.

The family, who is from Florida but moved to Vermont so their son could attend a speech therapy program at the University of Vermont, sued on three counts, and two of those counts — negligence and loss of parental consortium — were set to head to trial this past Monday.

The parents alleged their then-5-year-old son, “John Doe,” was sexually abused and harassed by a fellow student at the Ottauquechee School during the 2012-13 school year.

Despite repeated attempts to get the staff and superintendent to address the situation, the abuse continued, according to their lawsuit. The school district denied the allegations in its response to the lawsuit in September 2016.

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.