SUNBURY - A federal judge has approved a request to seal the settlement agreement reached by former Northumberland County chief clerk and solicitor Kymberley Best in a lawsuit against the county over her firing.
But the Pennsylvania Newsmedia Association (PNA) said such action flies in the face of legal precedent for settlements involving public agencies, and believes the court should overturn its decision.
The first notice of the settlement, which was arrived at with the aid of a mediator, was filed in U.S. District Court in Williamsport on April 2, with no details. On June 5, U.S. District Judge Matthew W. Brann signed an order granting a joint motion of all parties to seal the agreement and mark it as confidential. An accompanying document says, "the parties have agreed that the terms of the settlement are confidential and not to be disclosed to any non-parties, including but not limited to the 'news media.'"
The county's liability policy with ACE Westchester Fire Insurance Company allows the firm to settle without the county's consent, something county solicitor Frank Garrigan previously described as common for liability coverage.
Even if the county didn't have to OK the settlement, however, it can and should ask for its details, said Melissa Bevan Melewsky, media law counsel for PNA.
"The law is clear that settlement agreements that involve a public agency are public records," she said Friday. "It doesn't matter that the parties agree to confidentiality - the law requires access."
She said judges commonly seal settlements when parties agree, and it is "pretty standard" for insurance companies to seek confidential settlement agreements.
"But, that is not appropriate in cases involving government agencies where the law clearly requires public access," Melewsky said.
PNA has previously cited the ruling in Tribune-Review Publishing Company versus Westmoreland County Housing Authority and a 2006 ruling in Newspaper Holdings Inc. versus New Castle Area School District in arguing, "Where ... a settlement agreement fixes the personal or property rights of the parties or calls for the payment of money involving the disbursement of public funds, it is subject to disclosure under the RTKL (Right-to-Know Law)."
The News-Item, using that argument, filed a RTK request with the county on April 30 seeking a copy of the settlement. The county sought a 30-day extension as allowed by law for various reasons, then notified The News-Item in a letter dated June 4 that "no such agreement has been finalized and therefore no such record exists at this time."
Melewsky said the county has a right and an obligation to ask for a copy of the settlement.
At the time of the April announcement, Best said she couldn't comment about the settlement.
The only cost to the county to have ACE represent it was a $25,000 deductible paid soon after the suit was filed. From there, the firm would make any settlement payment to Best, Commissioner Chairman Vinny Clausi has said. He said again Friday the county doesn't know the terms of the settlement.
Wrongful termination
Best sued the county, Clausi and then-Commissioner Merle Phillips in May 2011 claiming wrongful termination and defamation after she was fired March 18 of that year from her $70,000-a-year job.
She would later file an amended complaint, but five of her initial claims, including due process, equal pay, conspiracy, wrongful termination and state whistleblower violations, were dismissed by U.S. Judge Yvette Kane in August 2012.
Clausi and Phillips had also filed motions requesting the suit be dismissed, citing immunity as public officials.
On Oct. 27, 2012, Best filed a second amended complaint. Remaining in the suit were free speech claims that allege retaliation and a part of the whistleblower claim that dealt with her reports of deficient air quality in the register and recorder's office in the county courthouse related to mold from a leaking roof and a related danger from a glass dome on the roof.
The settlement of a lawsuit filed by a former county prison deputy warden speaks to the differences in policies and settlement agreements. In that case, the settlement amount, $87,500, was disclosed by the county.