State attorney: Insurer's settlement payments in Ooltewah High School sexual assault cases 'likely subject' to open records law

State attorney: Insurer's settlement payments in Ooltewah High School sexual assault cases 'likely subject' to open records law

February 24th, 2019 by Andy Sher in Local Regional News

The exterior of Ooltewah High School photographed on Sunday, January 31, 2016. (Staff photo by Maura Friedman)

Photo by Maura Friedman /Times Free Press.

NASHVILLE — Out-of-court monetary settlements made by Hamilton County Schools' insurer in the 2015 Ooltewah High sexual assault cases are "most likely" required to be disclosed to the public under Tennessee's open government laws, a state attorney says.

Prompted by complaints from Sen. Todd Gardenhire, R-Chattanooga, Open Records Counsel Lee Pope told top Tennessee Risk Management Trust officials by letter last week they are "most likely" a governmental entity or "functional equivalent of a governmental entity."

Document: TOMA...

TOMA letter to Hamilton County BOE

And because the insurance trust was created by governmental entities through an "interlocal" agreement — a collaborative contract among public bodies aiming to provide public services — and gets funding from local governments for performing them, the insurer is "most likely subject to the requirements" of the Tennessee Public Records Act, Pope wrote to trust officials.

Thus, they "would be required to disclose settlement agreements" unless otherwise prohibited by state law, Pope wrote.

The Tennessee Public Records Act requires most government records be made available to the public.

Settlements, including amounts, in two lawsuits filed in both alleged Ooltewah assaults were placed under court seal last year in lawsuits. Attorneys for the two then-minors alleged in filings that their older classmates sexually assaulted them with pool cues during a December 2015 trip to Gatlinburg, Tennessee, for a basketball tournament. Coaches were either not present or not watching, according to filings.

One student, identified only as "John Doe" in court documents, said classmates held him down and penetrated his rectum with a pool cue. In the second case involving a "Richard Roe," attorneys said there was a "minor settlement."

Open Records Counsel weighs in on school board role and Tennessee Open Meetings Act

Meanwhile, in a separate letter to Hamilton County Board of Education Chairman Joe Wingate, Pope cited another Gardenhire complaint that the board "may have violated" the Tennessee Open Meetings Act, having "decided during 'executive session'" to refer the lawsuits to the insurer.

The law, Pope pointed out, says "formation of public policy is public business and shall not be conducted in secret" except as provided by the Tennessee Constitution.

While the law does have a "narrow exception" allowing a governing body to hold a closed-door executive session with legal counsel about a pending lawsuit or legal controversy, Pope cited a 1991 court ruling stating a governing body "may not make decisions or discuss or deliberate towards making a decision during such executive sessions.

"Accordingly," Pope added, "although the board may receive advice and information from counsel about pending litigation during executive session, any deliberations or decisions on that, such as whether to refer the matter to the [trust], must occur at an open public meeting.

"Failure to make such decisions at an open public meeting would constitute a violation of [the Open Meetings Act]," Pope wrote.

Efforts to reach Wingate and school board attorney Scott Bennett, as well as the insurance trust's administrator, Phillip Wallace, were unsuccessful.

Gardenhire: School officials 'pulled a Sgt. Schultz on me'

Gardenhire said in an interview Friday that he went to Pope after submitting a public records request to the school board.

"Their [the school board's] comments were 'We didn't discuss it and we don't know anything.' They pulled a 'Sgt. Schultz' on me," the senator said, referring to the 1960s sitcom "Hogan's Heroes," set in a World War II German prisoner of war camp in which prison guard Hans Schultz often turned a blind eye to the American soldiers' escapades. "They know nothing, they see nothing and they talked about nothing."

More Ooltewah rape case stories

In December, school board attorney Bennett said in a statement to the Times Free Press that "the Board did not ratify or approve the Doe or Roe settlements.

"Per the terms of the Board's insurance agreement with the [trust], the Board delegated all aspects of the defense to the Trust's adjusters and attorneys, including the decision whether to settle these claims."

Because of that, "so long as they settled within policy limits and didn't require any payment of Board funds, the Trust officials had the authority to settle the claims without the Board's input or approval," Bennett said. "Moreover, since the parties negotiated confidential settlements, [the trust] would not have informed the Board of the settlements' details."

In his letter to trust officials, Pope said both courts and the state attorney general "have determined that confidentiality provisions in a settlement agreement that restrict access to an otherwise open public record are unenforceable and violate public policy because only the legislature has authority to make public records confidential."

Because of that, Pope wrote, "an entity subject to the [Public Records Act] cannot enter into an agreement to make the terms of an otherwise open settlement agreement confidential."

Pope also noted the insurer "is most likely a governmental entity, or the functional equivalent of a governmental entity that is subject" to the Public Records Act.

Gardenhire said in the interview the bottom line is a public entity "cannot transfer the obigation to be not under the open records statutes" in the Ooltewah situation.

The senator also emphasized he believes "anything pertaining to a minor child shouldn't be public record" such as their name. "But the monetary settlement that was caused by people not doing their job at the Department of Education and their lawyer should be public record so we know how much their mistakes cost us."

When the "unfortunate incident," occurred, Gardenhire said, county schools policy "did not follow what the state law said they had to do. So the attorney of the school board and the chairman at the time of the schools should be accountable for what happened and what it cost the taxpayers. And that's what I'm trying to make public. What did their mistakes cost taxpayers?"

Deborah Fisher, executive director of the Tennessee Coalition for Open Government, said state law "is very clear that government entities cannot enter into confidentiality agreements that would make otherwise public records confidential, but unfortunately we see this happen often."

In fact, Fisher said by email, "I would even say it seems to be increasing in a variety of different contexts. It stems from the incorrect notion that a local government entity can make a public record confidential that's not confidential by state law. They've got that wrong. Only the Legislature can pass laws to make something confidential.

"If the school board cooked this up in a secret meeting in violation of the Open Meetings Act, it would be a double disaster of showing little respect for the policy of this state," Fisher said.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.


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