Published May 20. 2014 4:00AM
Freedom of Information hearing held in case involving ex-Stonington employee, The Day
Hartford - A former Stonington town employee testified Monday at a Freedom of Information hearing that she does not want her complaint alleging that First Selectman Edward Haberek was engaging in inappropriate behavior to go public.
Alicia O'Neill was the program coordinator with the Human Services department on Sept. 4, 2009, when she filed a written complaint with George Sylvestre, who at the time was director of administrative services.
"I wanted Mr. Sylvestre to advise him that his behavior was inappropriate," said O'Neill. "I wanted for him to tell Mr. Habarek my concerns. It was in confidence."
The exact nature of Haberek's conduct was not disclosed at the hearing. But O'Neill did say she was being truthful when she made the complaint, which she later withdrew. She also told Victor Perpetua, the FOI hearing officer, that she felt that release of the complaint would be an invasion of her privacy.
But The Day contends that it is in the public's interest to release the complaint. Day Staff Writer Joe Wojtas, who represented The Day at the hearing, said that the voters of Stonington are entitled to know if their chief elected official was the subject of a sexual harassment complaint.
The Day filed a Freedom of Information request on Aug. 7. On Sept. 10, the current director of administrative services, Vin Pacileo, denied the request, citing concerns about invading O'Neill's privacy.
"While we agree release of the letter will likely be embarrassing to Ms. O'Neill and Mr. Haberek, it is not an invasion of privacy," said Wojtas. "We are not seeking medical records or psychological reports, which we would agree would be exempt from release. Many of the records this commission orders the release of are often embarrassing to the parties involved. If there was an exemption for embarrassment, then many documents would never be released."
Thomas J. Londregan, attorney for the town of Stonington, filed a brief objecting to the complaint's release. The brief said that the town would argue that the complaint should not be released because the documents were preliminary drafts or notes, which are exempt from disclosure.
If the FOI Commission did not view the complaint as a draft, then it should be exempt because the disclosure would constitute an invasion of privacy, the brief said.
"Releasing the records would have a 'chilling effect' on municipal employees for they would be reluctant to contact Personnel Department if every communication can end up in the local newspaper," the brief said.
But Wojtas argued that the town keeping the complaint a secret had more of a chilling effect than releasing it.
Under questioning from Londregan, Pacileo said that the complaint was not kept in either O'Neill's or Haberek's personnel file but instead was in Sylvestre's supervisor file.
Pacileo said after reviewing the complaint and after talking to O'Neill, who withdrew her complaint in 2009 and reiterated again in 2013 her desire for the issue to remain private, he decided not to release it.
"A complaint that's not investigated and later withdrawn is at best a speculative document," Pacileo said.
He said no witnesses were interviewed or conclusions drawn in O'Neill's complaint. He said had the complaint been fully investigated and a conclusion found, he would have released the complaint.
But when pressed by Wojtas and Perpetua about whether he thought the complaint had a legitimate public interest, Pacileo conceded that there was a "level of public interest" but still felt the complaint shouldn't be released.
In a lawsuit pending in New London Superior Court, Tracy Swain accuses Haberek of using his town-owned Blackberry to send her sexually graphic photos of himself while in his town hall office. While Haberek originally denied to police and the media that he sent any photos to Swain, he admitted in a deposition that he sent her photos of another man.
The Day attempted to get a copy of the state police file, which investigated the Swain complaint. The FOI commission agreed with the refusal of the state police to release the documents, noting the exemption for uncorroborated allegations in a criminal investigation. Haberek was never charged by state police in the matter.
The Day has also sought since February the release of text messages and emails on Haberek's town-issued Blackberry, which it has yet to receive, prompting another complaint filed with the FOI commission.
The Day is also arguing that the exemption for personnel matters does not apply to Haberek as he is not an employee of the town, but an elected official.
A decision on whether the complaint should be release is expected in several weeks.