Cooper: Keep school settlements public

Cooper: Keep school settlements public

February 26th, 2019 by Clint Cooper in Opinion Free Press

A letter sent to Hamilton County Board of Education Chairman Joe Wingate says the board "may have violated" the Tennessee Open Meeting Act when it decided during a private meeting to refer lawsuits against the district to the district's insurance trust.

Photo by Erin O. Smith

Hamilton County Schools "most likely" violated state law by not making public the out-of-court monetary settlements surrounding the 2015 rape and assault of Ooltewah High School basketball players, a state lawyer says.

Unfortunately, the whole sordid incident has been awash in a lack of transparency. It began with the accusation of coaches downplaying the seriousness of the incident, continued with district administration officials initially keeping the incident from school board members, and worsened — many thought — because district administration did not deal seriously with what was said to be a culture of corruption at the school.

In the end, the public's sense of the administration's handling of the incident led, at least in part, to the resignation of one school superintendent and the turnover of six of the nine members of the board since the incident occurred in Gatlinburg, Tennessee, during a pre-Christmas tournament three-plus years ago.

The district shifted any blame for the settlements not being public to their being settled by the Tennessee Risk Management Trust, basically a member-owned insurance company covering public entities. Since the insurance trust settled the lawsuits, according to a December letter to the Times Free Press by Hamilton County Board of Education attorney Scott Bennett, the school board did not have to approve them or vote to expend any funds related to them.

The insurance trust's adjusters and attorneys, according to the school board attorney, had been delegated by the board to handle "all aspects of the defense" of the lawsuits filed against the board over the incident, "including the decision whether to settle these claims."

Nevertheless, said Tennessee Open Records counsel Lee Pope in a letter to Tennessee Risk Management Trust, the state's open government laws indicate the insurance trust is "most likely" a government entity or "functional equivalent of a government entity." And because it was created by government entities through a collaborative contract among public bodies aiming to provide public services, and gets funding from local governments for performing them, the insurance trust is "most likely subject to the requirements" of the Tennessee Public Records Act.

According to the Tennessee Public Records Act, most government records must be made available to the public.

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

The records in two lawsuits filed over the incident were placed under court seal last year.

In conjunction with the letter sent to the insurance trust, Pope also sent one to school board chairman Joe Wingate indicating the board "may have violated" the Tennessee Open Meetings Act by deciding "during executive session" (out of the public's view) to refer the Ooltewah lawsuits to the insurance trust.

While government bodies can meet about legal matters with counsel behind closed doors, "they may not make decisions or discuss or deliberate towards making a decision during such executive sessions," according to a 1991 court ruling.

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

Wingate was not on the board when the Ooltewah incident occurred and said he had not received Pope's letter.

State Sen. Todd Gardenhire, R-Chattanooga, prompted the letters in the first place from the Open Records Counsel after his public records request to the school board was returned saying the board knew nothing about the settlements and hadn't discussed them.

However, he said he feels the public has a right to know what the "mistakes" Department of Education personnel and their lawyer made "cost us."

When the 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?"

He said, and we would concur, that the confidentiality of minors involved in the incident should remain out of the public record. But since such records with names or sensitive material are routinely redacted from the files of government entities in order to make them public, doing so in this case would not be an undue burden.

We believe, like Gardenhire, the public needs to know the ultimate cost of this incident. A new Hamilton County Schools superintendent is in place, and we believe he is doing his best to assure proper policies and procedures are being implemented. And we know schools, faculties and students are supposed to be getting refresher courses about bullies and bullying. But the incident wound up costing the schools a monetary amount, even if its insurance trust paid the bill. What that bill was in all such school lawsuits should at least be available.

More Ooltewah rape case stories

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