Published January 19. 2012 4:00AM Updated January 19. 2012 10:44AM
Stonington - The town will no longer oppose attempts by a Pawcatuck woman to obtain evidence from a cellphone company that she claims will show that First Selectman Ed Haberek sent her "sexually graphic photos of himself" on his town-issued BlackBerry in 2010.
Haberek and Town Attorney Thomas Londregan announced the change in strategy Wednesday night during a Board of Finance meeting, at which members sought answers about the lawsuit filed by Tracy Swain and the financial damage it could do to the town.
"My concern is the well-being of the taxpayers because this could cost the town a lot of money," Board of Finance Chairman Glenn Frishman said.
The board wanted to discuss the issue because members are concerned the town is spending money budgeted for legal fees on what they feel is an issue stemming from Haberek's alleged personal conduct.
So far, the town has paid town labor attorney Michael Satti $467 for work he did on the case through Dec. 21. Satti has not yet billed the town for motions he has filed since then.
Board of Finance members Andrew Rines and Dudley Wheeler asked Londregan if not opposing the release of the records would get the town out of the lawsuit.
"I think this will go a long way towards doing that, but I don't know," Londregan said.
Swain's suit also charges that the town allowed Haberek to contact Swain inappropriately, let him transmit graphic photos of himself using town equipment, failed to monitor Haberek's communications and failed to enforce a policy regarding proper use of town equipment and electronic communications.
Satti said the town already has given Swain's attorney records of the calls made from his BlackBerry. But the action by Swain against Verizon, the town's cellphone provider, seeks copies of the alleged photos, as well as the content of emails and text messages sent from that number.
Also at Wednesday's meeting, Londregan said it is up to the Board of Selectmen, of which Haberek is a member, to determine whether the town should fight Swain's lawsuit or settle with her.
Some finance board members are concerned that Haberek appears to have a conflict of interest in this decision because it is his alleged conduct that led to the suit. In addition, if Swain's allegations are true, the images could become public as evidence.
But Haberek pointed out that he is named in most every lawsuit filed against the town by virtue of being the town's chief elected official.
After the meeting, Haberek said it is too early to say whether he would recuse himself from selectmen's discussion about how to handle the case.
Londregan also told finance board members that it is too early for them to begin talking about the potential financial impact on the town because the case has just been filed, and no negotiations have been held.
Swain's suit states that prior to Jan. 12, 2010, Haberek had extensive telephone, email, text message and Facebook communication with her. When Swain told him on that date to stop sending the messages, he allegedly sent her the photos of himself. Swain has said that Haberek told her he sent those messages while he was in his office.
In the lawsuit, Swain's attorney, Scott Camassar, said Swain has sued the town in part because it has interfered with her effort to obtain evidence about Haberek from Verizon.
In court documents, Camassar argued "the wrongs perpetuated by Mr. Haberek in sending photos to the plaintiff constitute a private civil matter between him and the plaintiff."
But over the past month, Satti, the town's labor attorney, has filed several motions in the case - called Swain vs. Cellco Partnership - seeking to prevent the disclosure of the phone records and stopping Haberek's deposition.
Satti explained to the finance board Wednesday that he filed an appearance and motions in the case because Swain's action against Verizon was seeking information from a phone number issued to the town, and the town was never informed of the action until Haberek had been subpoenaed for a deposition.
"If I thought for a moment this was personal in nature, I would not have got the town involved. I would have said 'go see a private attorney,'" he said.
Two years ago, Swain complained about the alleged incident to state police, who investigated and determined no crime had been committed.
During that probe, state police seized Haberek's BlackBerry and computer, and obtained a search warrant for hundreds of pages of his Facebook messages and postings. The Day requested access to that information, but the state Freedom of Information Commission ruled that state police did not have to release it.