USING TAXPAYERS' MONEY TO PURCHASE SILENCE

By Harvey A. Schwartz

Rodgers, Powers & Schwartz

Massachusetts Lawyers Weekly

Cities, towns and even the state government spend hundreds of thousands of dollars every year to seal the lips of victims of discrimination and harassment inflicted by officials of -- make one guess -- cities, towns and even the state government. I know this happens because I sign the settlement agreements that use taxpayers' money to coerce victims into remaining mum about discrimination by public officials.

Here are some examples:

• An African-American man who worked in the engineering department of a state agency claimed his supervisor belittled him and, for example, made him keep a written record of his time at fifteen minute intervals while no other professional employee of the agency had to do that. After the man filed a race discrimination claim the director of this multi-billion dollar agency fired the man, saying the agency could not corroborate the discrimination allegation despite a complete and thorough investigation. In fact, the agency had no record of any investigation whatsoever and acknowledged that neither the victim of the discrimination nor his supervisor were ever interviewed. The agency used public funds to settle on the eve of trial for $90,000, on the condition that the plaintiff "will not disclose this settlement agreement and any terms contained herein to any third party, including any newspaper, journal or publication."
• A woman who sued a town, alleging that a police sergeant fondled her in a small room at the police station settled her claim for $75,000. The defendants insisted on a provision that the plaintiff "agrees that all terms of the general release shall be kept confidential and such terms shall not be disclosed to any person not a party . . . including, without limitation, disclosure to any written publication."
• A female faculty member at a state educational institution alleged that after she filed a sexual harassment complaint against her department chairman he drastically rewrote her written evaluation, changing it from glowing to recommending her termination. She settled her claim for $125,000 in public funds, three years medical insurance and three years free post graduate education. The state institution insisted on a clause saying "the parties agree to keep the dollar amount of the settlement confidential, to the full extent permitted by law."
• A female faculty member at another state educational institution alleged that she was fired after filing a sexual harassment complaint against her department chairman. The institution offered to pay her $250,000 in public funds if she agreed not only to keep the amount of the settlement secret but also agreed not to testify in other cases against the institution.
• A public works department employee of an Essex County town alleged that he was fired after he criticized the manager of the public works department at a town meeting. The town settled his federal court claim for $60,000 only if he agreed to keep the settlement secret.
• A Hispanic couple alleged that a city housing authority discriminated against them by consciously refusing to protect them from harassment by white tenants. The housing authority used $125,000 in public funds to settle their claim, insisting on a provision that said, "The nature and terms of this Conciliation Agreement and all discussions leading to this Conciliation Agreement shall not be disclosed by the Complainants."
• Four Cape Verdean men claimed they were beaten by police officers who stopped their car late at night. Their account was corroborated by a police officer from a neighboring town. The town and the police officers settled the men's federal civil rights action for $40,000 only if they agreed to keep the amount of the settlement confidential.
• In another police case two young men were beaten by a town police officer with a history of physical abuse. The town settled their federal court action for $65,000 on the condition that the men keep the amount of the settlement and all details of their claims confidential.
• A mother of a teenager with learning disabilities brought a federal civil rights claim against a town school department, alleging school system officials intentionally misled her about son's disability in order to save money for the town. The town settled her claim for $70,000 and said a confidentiality agreement was a "deal breaker."

I know about these cases only because I represented these plaintiffs. The taxpayers who footed the bill for these settlements have no idea how their money was spent or that government employees' misconduct was causing these problems and costing these amounts. In most of these cases the very officials most responsible for the civil rights violations were in a position to demand that their own misconduct be concealed from taxpayers. These cases are just samples of others I myself am aware of involving government officials using public funds to cover up their own misconduct.

How can this be happening, you may ask. What about the public records law, G.L. c. 66? Aren't these settlement agreements public records? Why don't the newspapers just follow the proper procedures and demand copies of these agreements?

They don't do that because they don't know about them. Public officials using public funds to cover up their own misconduct are not about to issue press releases boasting of their accomplishments. The confidentiality clauses prohibit plaintiffs from telling anyone about the settlements, sometimes with draconian punishment provisions -- including return of all the settlement money -- if they violate confidentiality.

This end run around the public records law, in my experience litigating civil rights actions against government entities, is standard operating procedure, not the exception.

Even worse, this winking at the public records law is tolerated by the attorney general's office. Attorney General Harshbarger takes the position that his "office will not enter into and will not approve any settlement agreement that contains language making settlement confidential or barring disclosure of its terms." The reason for this policy, the Attorney General says, "is the same as the reasons underlying the existence of the Public Records Law. In a system of democratic government, the public is entitled to scrutinize the performance of its officials, including both the performance of this office in settling cases and that of agencies in the various activities that generate litigation, as well as in their responses to litigation. This interest is perhaps at its strongest when public funds are being paid in settlement of claims."

Despite these high sounding principles, the Attorney General tolerates settlements in which the plaintiff "voluntarily" agrees to a unilateral confidentiality requirement. My experience is that these back door "voluntary" confidentiality agreements are common, are absolutely effective in maintaining the secrecy of settlements and are far from ever voluntary. The reality of life is that my clients' civil rights suits are often brought "for the principle of it" but are settled "for the most we can get." By the time a case gets close to trial the weary plaintiff who finds the government meeting his dollar demand is rarely ready to roll the dice with a trial simply to be able to go public with his victory. As one client, living off Social Security disability payments years after he was fired from a municipal job for publicly criticizing his boss, told me, "My kids need dinner and a roof over their heads. If the town wants to pay me to keep my mouth shut, I damn well need their money."

I've seen cities and towns use all kinds of subterfuges to justify the secrecy of their settlements. Sometimes they say that settlements are not paid with public money since the town had insurance, as if the insurance policy had been donated gratis to the town. Sometimes they insist that claims against the municipality be dismissed a week before the claims against individual government employees are dismissed and that the financial settlement be only with the individuals and not with the government under the pretense that it is then only a private settlement. Sometimes the settlement agreements acknowledge that the town or state agency will disclose the settlement if legally compelled to do so, as if some stranger is going to wander in off the street and randomly file a public records request. I've even had cases where the only copy of the settlement agreement is to be kept by the town's lawyer so that the town will not have an official record of the settlement to disclose.

If private businesses are able to purchase confidentiality with private money as part of a settlement, that is their private business. Private confidentiality agreements are a totally different matter from secret government transactions. There may be public policy reasons for and against private confidentiality agreements, but those reasons are different from secrecy concerning government settlements.

This area of the law needs examination and cleaning up. There simply should be no way any government -- towns, cities or state agencies -- can secretly use public money -- directly or indirectly from insurance policies -- to secretly settle misconduct claims involving government employees. This practice is against public policy and is just plain wrong. The Attorney General, the governor and the legislature should address this issue head on and enact legislation that out and out prohibits any provision in any agreement involving the settlement of any claim against any government agency or employee that requires or compels any party to the settlement to keep any aspect of that settlement or claim confidential.

Civil rights actions against the government involve more than the parties to the litigation; they involve the interest of the tax paying public. If government officials would be embarrassed by revelation that their misconduct is costing the taxpayers money, well, then, they should be embarrassed. I'm tired of having to sign settlement agreements sealing my clients lips -- and my own -- just because government officials are able to dangle a sufficiently generous amount of everybody else's money before my clients. It is time for this practice to end.