Longtime readers know that I have covered the federal lawsuit against Larry Meyer, a now-retired detective of the Whitewater Police Department. Plaintiff, Steve Cvicker sued Meyer federal court alleging violations of his civil and constitutional rights. In March, Cvicker’s Fourth Amendment claims survived a motion for summary judgment. In October, newspaper accounts reported that the case was close to settlement.
When the final settlement was not soon forthcoming, I speculated that the delay was the result of some sort of problem in negotiations between the two sides. (The public records in the case revealed that a possible settlement was brought to the court’s attention in September.) As it turns out, there is a challenge in reaching a settlement, and counsel for Larry Meyer has filed a motion to enforce a settlement agreement that the defense claims was reached, but with which the plaintiff allegedly will not comply. The Janesville Gazette this week ran a brief story on the motion to compel settlement. The Gazette story misses a fundamental public policy aspect of the case.
My interest — like all citizens — is in honest, responsible government and policing in this town. My interest is not, and cannot be, that of the plaintiff in this case. I have never met the plaintiff in this federal lawsuit, Steve Cvicker, and in fact, I have no idea what he even looks like.
When I speculated on the delay in this case, I wondered if the defendant in this case might want a confidentiality agreement as a condition of settlement. I was right: public records in the case reveal that a confidentiality agreement imposed on the plaintiff is one of the conditions of settlement. This is a critical detail that the Gazette did not report, but is the heart of public concern.
My position is against any confidentiality agreement as a condition of settlement in this case, a case about public duties of public officials and officers of the City of Whitewater. Asking a court to impose a confidentiality agreement in this matter is against public policy and good government.
Here is an excerpt from Defendant’s brief in support of the motion to compel settlement that refers to a confidentiality agreement (defendant’s counsel cites from a letter between the parties dated September 27, 2007):
“In exchange for a payment of Eighty-two Thousand Five Hundred Dollars ($82,500.00), Mr. Cvicker will dismiss his claims in Case No. 05-C-576, on their merits and with prejudice, and without costs or fees to any party. Mr. Cvicker will execute a full and final release of any and all claims against Investigator Larry Meyer, the City of Whitewater Police Department, the City of Whitewater, and their officers, employees, attorneys, insurers, successors, assigns, etc. The release will contain a confidentiality provision. ”
Emphasis added.
I will offer seven reasons that a confidentiality agreement in this case — involving a public issue — is a bad idea, and contrary to good government.
First, this federal lawsuit against Larry Meyer involves a federal constitutional claim against public officials, and a municipality, in the course of public duties. The entire matter involves a claim about the legality and propriety of public action. This is the very definition of a matter of public interest. It should not be hushed up through a confidentiality agreement.
Second, citizens should know and understand how paid municipal employees, in the discharge of their official duties, actually conduct themselves. This allows citizens to (1) know the truth of employee’s actual conduct, (2) advocate for reforms when needed, and (3) be aware of the risks of misconduct where it has occurred, (4) or be confident in cases where it has not occurred.
Third, those public employees who claim that their conduct is upstanding should be willing to allow an open judicial process, available to the review of fellow citizens, journalists, and lawyers.
Fourth, defendants can, and do, settle cases — without an admission of wrongdoing — and also without confidentiality agreements. A public employee’s insurance carrier, or a municipality’s insurance carrier, need not admit the employee’s wrongdoing to settle. That insurance carrier should not hide the mere facts of a public matter from the very public that authorizes, pays, and relies on the public employee’s conduct.
Fifth, settlements in public maters, involving public officials, paid with public money that are hidden through confidentiality agreements constitute attempts by those officials to afford themselves the condition of private parties while simultaneously exercising public duties. It’s unfair to have both: a man may choose a private vocation, but he should not assume and benefit from a public one, only to ask that his public actions be hidden through a means more suitable in private endeavors.
Sixth, even in private matters, confidentiality agreements may be used, all too often, to allow corporations to hide the truth of their dangerous products from consumers, leaving consumers unable to evaluate the risk and rewards of purchasing goods at a give price. Markets work best when consumers receive information about the true functioning of a product.
Seventh, a confidentiality agreement in this matter would be contrary Wisconsin’s public policy commitment to open records. My point is not that it cannot be done, but that it should not be done.
Here is the clear test, the question of principle: Why should this public lawsuit, involving public officials, involved in the public exercise of their duties, be made confidential?
To each of the gentlemen involved on behalf of the City of Whitewater and its police department, this is the question that I pose to you. The defendants need not admit wrongdoing in connection with payment of settlement money. I am stunned, however, at the arrogance and audacity that causes the defendant to request that this public matter be hidden from view. It’s disgraceful that public employees and the City of Whitewater would request this unnecessary step.
Officials proclaim — at each and every opportunity — that their actions are beyond reproach. If that should be true, then why ask a court to make these public actions confidential and private? It does not matter what one thinks of the plaintiff, defendant, or their actions to see that this public matter should remain public, in all respects. Requesting that this public case be hidden from view is wrong, clearly and simply.