Carmel Mayor Jim Brainard is refusing to provide the Carmel City Council details of a recent settlement reached with a city employee, but according to Indiana Public Access Counselor Luke Britt, the document — or at least parts of it — should be considered public information.
Several members of the city council want access to the settlement so they can use it in their investigation of the city’s handling of a harassment complaint made by an employee of the city’s law department against former City Attorney Doug Haney.
A motion to effectively subpoena Brainard to produce the settlement failed at the Aug. 2 council meeting, but some councilors said they believe state law entitles them to see the document.
Britt, whose role includes preserving access rights of the public, agrees.
“A council, within reason, should have access to those kinds of records,” he said. “They have an element of accountability to the taxpayer, too.”
Brainard, who signed a nondisclosure agreement pertaining to the settlement, has cited a desire to protect the privacy of the victim in declining to release the settlement to the council.
Britt, however, said nondisclosure agreements signed by government officials are generally unnecessary and that they can’t be used as a reason to withhold public information.
“Nine times out of 10, (nondisclosure agreements signed by public officials) are not worth the paper they’re printed on. They’re not legally binding, and a court would laugh at them, because anything that would be considered nondisclosable or confidential is already in the law as a statutory exemption,” Britt said. “An NDA at best would be redundant and at worst completely unenforceable.”
According to Jon Oberlander, who has been serving as interim city attorney since Haney resigned in December 2020, the settlement agreement does not have to be released because it is part of a personnel employment file, which may remain private to protect employees’ personal information.
Britt said some portions of a personnel file are eligible to remain private, such as performance appraisals. But compensation, which includes funds received through a settlement, is information that should be publicly made available, he said.
City Councilor Laura Campbell, who led the council’s investigation, said the employee who filed the complaint against Haney told her she is “OK with parts of the settlement being released.” Campbell said she believes the confidentiality of the settlement is a moot point because of an Indiana Court of Appeals decision in 2005 that ruled a settlement agreement between an employee and a city is a public record.
The city has released details of settlement agreements in the past. Last month, Current obtained through a public records request details of a $100,000 settlement awarded in May to Gary W. Brooks, a memory-impaired Carmel resident who claimed he suffered a sprained wrist after a 2017 altercation with Haney at City Hall. Brooks filed a lawsuit against Haney and the City of Carmel in federal court, but the case was dropped as a result of the settlement.
Last month, Current also filed a records request for information about the settlement reached with the law department employee who filed the harassment complaint against Haney. The request is pending. The city denied a records request for details of all settlements paid by the city in the last 25 years.