The town of Essex says documents from its sexual harassment investigation are exempt from public disclosure because the town doesn’t possess them – its attorney does.
And even if they were on file at 81 Main St., the town would still deny selectwoman Irene Wrenner access because publicizing her “baseless” claims against a town employee could harm his “reputation and good name.”
Those arguments were detailed in a recent court filing from a Rutland-based lawyer the town retained to defend itself against Wrenner’s public records lawsuit.
“The use of the Public Records Act and the taxpayers’ resources in this way is not consistent with the legislative intent,” wrote attorney Kaveh S. Shahi, of Cleary, Shahi & Aicher, P.C., in a June 20 response.
Wrenner believes the town is improperly withholding those documents and said the response shows more of the same. “Obviously they’re still stonewalling, and that’s unfortunate,” she said.
Wrenner’s complaint, which the Reporter broke news of last month, asks for billing records and reports from a 2017 internal inquiry that began after she alleged “gender-based unprofessional conduct” by a high-level town employee. She’s represented by attorney Pietro Lynn.
Vermont law defines public records as “any written or recorded information, regardless of physical form or characteristics” produced or acquired during a public agency’s business. The law includes a breadth of exemptions, however, two of which the town says trump Wrenner’s request.
The town characterizes the report as an “attorney-work product,” explaining that a lawyer at a private practice hired the investigator. But it says the report is also shielded by an exemption protecting the privacy of the accused. The town cited both those exemptions when The Reporter requested the documents, too.
Wrenner doesn’t buy it. She said she purposely left out the accused’s name in her complaint despite no longer being bound to the town’s confidentiality policies. And she doesn’t even want the report made public: “I’m not looking to out anyone or have my notes splattered across the front page” of this newspaper, she said. But she felt the town’s denial of private requests left her no option.
She added that it’s “curious” to see the investigative process handled so differently within the same town; her allegations sparked a similar investigation in the village, which obtained an attorney from a private firm in Burlington to investigate.
That lawyer shared notes of Wrenner’s testimony before handing in her report. “There’s clearly another way to do this,” Wrenner said.
Her complaint details several other concerns with the investigation, too. She says the town refused to provide a female investigator after she felt uncomfortable relaying her experience to investigator Bill Burgess, a male, and questions his qualifications to investigate claims of this nature.
She also points to the “lengthy history of working and socializing” between the accused and Bill Ellis, the longtime town attorney who ruled that even if her allegations were true, the employee’s behavior didn’t violate the town’s sexual harassment policies.
Wrenner believes the alleged conduct defies multiple clauses of that policy. She’s said she’s seeking Burgess’ report to understand his process and to ensure he accurately captured her testimony – a request Ellis has called “inappropriate.”
The town’s response challenges any suggestion that the process was “less than professional, fair or impartial.”
Last month, the selectboard directed municipal manager Evan Teich to work on the town’s defense during a closed-door session from which Wrenner recused herself. Ellis told The Reporter then he was helping with the town’s response, but Teich wouldn’t say at the time whether Ellis would lead the defense.
Reached Monday morning, Teich said Ellis has recused himself from the matter. The manager declined to comment further, saying, “We let our lawyers handle their work and the work tends to speak for itself.”
Wrenner said the response to her lawsuit has been different than anticipated. She’s heard supportive comments from several unexpected sources and noted recent letters to the editor in support of her cause.
“People at town hall have been a little careful lately,” she said. “That’s to be expected, I think, when you’ve got someone on the inside who’s suing you.” She alluded to lawsuit’s cost on both parties but said it’s important to ensure the process of investigating sexual harassment claims is as fair and transparent as possible.
“In the year 2018, after #MeToo, I don’t think these things are revolutionary,” she said of her requests. “But change is hard, and I want my town to be doing its utmost best by its residents.”
“I feel like it’d be wrong of me to just sit by and pretend that it could somehow be fixed without me,” she later added.
Read previous stories from The Reporter’s investigation here: