Public access counselor: Compensation in Carmel settlement agreement a public record

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Indiana Public Access Counselor Luke Britt issued a formal opinion Feb. 22 agreeing with positions held by members of the local media and some Carmel city councilors that compensation paid to a former employee as part of a settlement agreement should be part of the public record.

The opinion was issued in response to formal complaints filed by Current Publishing in September 2021 and the Indianapolis Star the following month after the City of Carmel refused to release information regarding a settlement reached with an employee who filed a harassment complaint against then-City Attorney Doug Haney.

Haney resigned in December 2020, and the city council launched an investigation into the city’s handling of the complaint the following year. Sue Finkam, who was president of the council in 2021, said it was difficult to fully investigate the matter without access to the settlement.

“My concern is that, given the nature of this complaint, there might have been terms in a settlement that would be imposed upon the city administration to implement training or policy changes,” Finkam said. “As a city councilor who is over administration and finance, it’s hard to understand if we’ve done our job without understanding the terms of the settlement, because the most important thing that needs to come out of this is that we have better controls in place, and this never happens again.”

Jon Oberlander, interim corporation counsel for the City of Carmel, stated in a response to the public access counselor regarding the formal complaints that the settlement is part of a personnel file and therefore not a public record. He argued that settlements previously ruled as public documents in other cases only became so when the matter had gone to court. The case in question never reached litigation.

Britt confirmed that many elements of a personnel file may be shielded from public view, but he stated that compensation paid to an employee – whether or not a case went before a judge – is not among them.

“(The Access to Public Records Act)’s personnel file exception does not give a public agency discretion to withhold information about compensation paid to an employee,” Britt stated. “As a result, even if the settlement agreement is properly ensconced in an employee’s personnel file because it does not directly involve litigation, certain information is disclosable upon request in accordance with APRA.”

The opinion is advisory and does not require the city to release the compensation information. City of Carmel spokesperson Dan McFeely said that the city is “reviewing the opinion and will issue a response in due course.”

Councilor Laura Campbell, who served as council president in 2020 and led the council’s investigation of the handling of the complaint, said she was pleased to see the opinion.

“The opinion affirms my belief that the amount of the settlement is a public record, and I hope that the city releases the requested information in a timely fashion not only to the media but to the city council as well,” Campbell stated.

Finkam said she still hasn’t seen any portion of the settlement. When she looked for a claim relating to compensation in the settlement, she was told the city only paid the deductible to an insurance company.

When asked by Current about the specific claim, the City of Carmel provided a link to all claims approved between 2020 and 2022 but did not specify which one is related to the settlement. Current has filed a public information request for the specific claim.

Finkam said it’s not only the financial aspect of the settlement that’s important to her.

“I don’t want to forget why we’re here,” Finkam said. “Had the employee’s complaint been addressed initially with urgency and compassion, we never would have come to this point.”

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