Footing bills for secret deals

In 2006, a Richardson County sheriff's deputy accidentally shot and killed an unarmed 52-year-old woman during a drug stakeout.

Richardson County last year settled a wrongful death lawsuit brought by the woman's family. But the county's taxpayers don't know how much they paid. A local judge agreed to seal the settlement.

The handling of that case is not unique.

It's one of 10 secret settlements in Nebraska that World-Herald reporting found in the past month. The newspaper looked for additional cases after reporting last year on a $200,000 secret deal to settle a sexual harassment claim involving the former mayor of Papillion.

There may be more such settlements, but Nebraska law doesn't require public disclosure of them.

By contrast, Iowa law does require disclosure.

Nebraska State Auditor Mike Foley said Nebraska should follow Iowa's example.

Foley, a former state senator, is endorsing a legislative proposal that would require such settlements to be made public. The bill was prompted by the Papillion payout.

“We don't give the public a choice as to whether we take their tax money — we take their tax money from them,” Foley said. “So the other half of that bargain is that we have to tell them how we spent it.”

Legislative Bill 742 would prohibit Nebraska political subdivisions from entering into confidential settlements. State Sen. Beau McCoy of Omaha proposed the bill, which also would require that meeting agendas include details about pending legal settlements.

A common method of keeping a settlement secret is to not keep a copy of it in public offices, Foley said. McCoy's bill would require that copies be kept on file.

The Government Committee could vote this week on whether to send the bill to the full Legislature for debate.

A number of government organizations have lined up to oppose the bill, including the Nebraska Association of School Boards as well as the Nebraska Intergovernmental Risk Management Association, the public liability insurance pool that represents 79 counties.

Vincent Valentino, the association's general counsel, wrote to lawmakers that state and federal courts decide whether to disclose confidential settlements based, in part, on whether publicity might encourage further litigation.

Public disclosure also might chill attempts to resolve future disputes, he wrote, and may not be appropriate in cases involving sexual harassment, sexual assault or discrimination.

The Nebraska Association of School Boards said it opposes requiring its members to make public on their meeting agendas the details of settlements — including dollar amounts.

John Bonaiuto, the association's executive director, said about half of Nebraska's school districts have liability insurance through a public insurance pool that is affiliated with his organization.

“For us, this bill is overkill,” he said. “I just don't think we should start publishing these settlements on board agendas. Is that really a good practice?”

Bringing attention to school district settlements might encourage an abundance of claims, he said.

Confidentiality provisions were included in at least three settlements for $50,000 or more made since 2005 by member school districts, Bonaiuto said. He said he didn't know details of those settlements.

Confidentiality provisions are used sparingly, he said.

“It is rare,” Bonaiuto said. “Sometimes the confidential settlements help the victims as much as the (insured) party. Someone in a small community may settle confidentially rather than have half of the town know they got a certain amount of money for their claim against their school district.”

In 2006, a school district liability insurance pool funded by taxpayer premiums paid a confidential settlement in Plattsmouth that resolved a federal lawsuit brought by the parents of former student Brandon Bashus.

The lawsuit claimed that negligence by coaches and staff members allowed a locker room attack on Bashus by a varsity football player in 2004.

Current Plattsmouth School Superintendent Richard Hasty denied The World-Herald's public records request for a copy of the Bashus settlement.

“I have not seen the documents pertaining to the reported settlement, but my understanding is that it is confidential, and since it involves a person who was then a minor, would be subject to court approval,” Hasty stated.

Jack Gould of Common Cause Nebraska, a government watchdog group, said a veil of secrecy can help cover up public officials' incompetence or poor performance.

“People in these communities should be concerned,” Gould said. “Too many public (bodies) nowadays view themselves as private organizations. It's baloney.”

In Iowa, the terms of government settlements are, by state law, considered public information. Among recent cases:

Ÿ The Pottawattamie County Board agreed to a $12 million settlement in a civil rights lawsuit brought by Terry Harrington and Curtis W. McGhee Jr.

The men were convicted in the 1977 death of Council Bluffs security officer John Schweer. Both men argued they were wrongfully convicted and were released after serving more than 25 years in prison.

Their settlement will be paid by insurance companies.

Ÿ Mills County disclosed a 2006 agreement to pay a $2.7 million settlement in a class- action lawsuit over septic system problems that affected hundreds of rural homeowners.

“Normally the settlement amount is always in (the agreement),” said Assistant Mills County Attorney Eric Hansen. “Maybe some of the underlying terms might not be disclosed, but I can never remember a case that we have had down here in Mills County where the amount was completely secret.”

In Nebraska, government agencies use the courts or existing public records and open-meeting laws to keep settlements quiet, said Common Cause's Gould.

It's hard to know how often settlements are paid, he said.

“Even if it's one case in Nebraska, or even three or five over a period of time, that's way too many,” Gould said.

In Richardson County, the settlement over the shooting of Ann Marx contained a “mutual confidentiality agreement” involving her family, the county and the judge who sealed the court records, said Rick Boucher, a lawyer for the county insurance pool.

“All parties are bound by the confidentiality clause,” he wrote in response to The World-Herald's open records request. “And disclosure cannot be made without an order from the Richardson County Court.”

Foley said efforts to keep settlements confidential show that government officials seek to hide the public's business.

That is contrary to the spirit of Nebraska's open government laws, he said.

“Those are all very troubling instances when the public is really being denied access to information that rightfully belongs to them,” Foley said.

“While some people argue that the Papillion settlement was a rare example, we're saying, ‘No, it's not rare.' And lawyers are finding ways to keep the public ignorant to protect the government and school officials.”

Contact the writer: 444-1056, john.ferak@owh.com

« Metro/Region

Share