Connecticut Freedom of Information Commission Hearing
Jan. 4, 2008
18-20 Trinity St.
Complaint by Andy Thibault
Paula Schwartz, Superintendent of Schools,
Regional School District #10
Editor's Note: Today's hearing opened shortly after 11:30 a.m. and concluded about 2 p.m. The hearing was taped by CT-N, the Connecticut Network. The network posts its schedule at http://www.ctn.state.ct.us/ and generally broadcasts such hearings a few days later.
The hearing officer's decision generally follows several weeks later. However, both parties have until Jan. 17 to file briefs summarizing the case and making final arguments.
The hearing officer's decision will be voted on during a regular meeting of the Freedom of Information Commission.
In a significant development, counsel for the Region 10 Board of Education, Atty. Christine Chinni, agreed to produce unredacted billing records from her firm for an in-camera or confidential review by the FOI Commission. This followed requests during the hearing and in prior correspondence.
Outstanding issues include the question of whether the Region 10 Board of Education is using an insurance company as a front or beard to hide public records. Other issues include claims that Superintendent Schwartz failed to produce records including ballots in a timely manner as required by the FOI law. A sample write-in ballot for Avery Doninger, Secretary Elect of the Lewis Mills High School Class of 2008, was entered into the record.
Prior correspondence on file at the Freedom of Information Commission -- including a request for a subpoena of Chinni -- was not allowed into the hearing record.
Chinni had written to the FOI Commission on Dec. 7, 2007: "While I will be representing the respondent, Paula Schwartz, Superintendent of Regional School District No. 10, in these proceedings, my partner, Craig Meuser, will present my sworn testimony on these matters."
Chinni refused to testify today. No explanation was given.
Most, but not all of my following remarks were allowed into the record. I also inserted a statement a couple of times as follows: The FOI law demands that the respondents produce originals of documents in a timely manner.
-- Andy Thibault
Before we begin, I would like to make a few preliminary objections.
Also, if the hearing officer could please state any past or current relationships with the insurance industry, and whether any such relationships could impact his judgment or impartiality, I believe it would be appropriate for that to go on the record. The reason for this request is that a key component of the case hinges on the use of an insurance company or companies as beards or fronts to hide public records.
[The hearing officer, Atty. Dennis O'Connor, stated his background with the insurance industry is well known and that a public record is a public record. He said he would be able to preside impartially. O'Connor was assisted by FOI Staff Counsel Tracie Brown.]
Thank you, now that that issue is covered, here are my objections:
1. AS YOU KNOW OR WILL LEARN FROM EXHIBITS, ATTORNEY CHINNI HAS BEEN INTIMATELY INVOLVED IN MY EFFORTS TO OBTAIN DOCUMENTS FROM HER CLIENTS.
2. NOW WE HAVE A SITUATION WHERE, AFTER MY REQUEST FOR A SUBPOENA, SHE HAS AGREED TO TESTIFY IN THIS PROCEEDING.
3. NOW I DON'T PRETEND TO UNDERSTAND ALL THIS LAWYER STUFF, BUT, ACCORDING TO THE RULES OF PROFESSIONAL CONDUCT, ISN'T THERE AN ETHICAL ISSUE FOR AN ATTORNEY WHO REPRESENTS A PARTY IN A PROCEEDING IN WHICH SHE A WITNESS.
4. MS. CHINNI, KNEW OR SHOULD HAVE KNOWN THAT SHE WOULD BE A WITNESS IN THIS MATTER FOR MONTHS. SHE HAS BEEN THE CONDUIT FOR VIRTUALLY ALL COMMUNICATION BETWEEN MYSELF AND THE RESPONDENTS ON ALL THREE FOI COMPLAINTS.
5. THEREFORE, I STRONGLY OBJECT TO HER REPRESENTING THE RESPONDENTS IN THE SAME MATTER IN WHICH SHE IS AN INTEGRAL WITNESS. SHE IS NOT JUST A MINOR WITNESS.
6. MS. CHINNI AND THE RESPONDENTS HAVE ALREADY DELAYED THE PRODUCTION OF DOCUMENTS FOR MONTHS, AND THESE PROCEEDINGS FOR THEIR OWN SELFISH CONVENIENCE. FURTHER DELAY BECAUSE OF UNSUBSTANTIATED CLAIMS OF LACK OF COUNSEL SHOULD NOT BE PERMITTED.
7. THESE DOCUMENTS ARE TIME SENSITIVE AND SUCH DILATORY TACTICS SHOULD BE STOPPED.
8. MY VIEW IS THAT THE HEARING SHOULD GO FORWARD, ATTORNEY CHINNI SHOULD RECUSE HERSELF IMMEDIATELY AS AN ATTORNEY IN THIS MATTER AND HER PARTNER, WHO OBVIOUSLY IS FAMILIAR WITH THE CLAIMS SINCE HE IS TAKING HER TESTIMONY, SHOULD REPRESENT THE RESPONDENTS. FURTHER, NO DELAY OF THE PROCEEDINGS SHOULD BE ALLOWED BECAUSE OF ATTORNEYS' SCHEDULES.
9. MY WITNESS AND I HAVE GIVEN UP OUR TIME TO BE HERE; THE HEARING HAS BEEN POSTPONED ONCE SO THAT THE SUPERINTENDENT COULD GO ON VACATION TO ARUBA, SO FURTHER DELAYS ARE AN UNFAIR INCONVENIENCE AND INJUSTICE.
10. I ALSO REMIND ATTORNEY CHINNI THAT I INTEND TO BRING HER ILLICIT REPRESENTATION OF THE RESPONDENTS AND OTHER MATTERS TO THE STATE AND FEDERAL GRIEVANCE PANELS.
11. THANK YOU, AND I APPRECIATE YOUR TAKING THE TIME TO RULE ON THESE OBJECTIONS BEFORE WE BEGIN.
Thank you. I do appreciate very much the customary latitude given to all those who appear here, especially lay complainants. I will make a brief opening statement and then recite the facts of the case. Besides myself, I will put forward one other witness, Jacqueline Manning.
I come to this Freedom of Information Commission today full of hope for sunlight and justice.
My hope stems from all those known and unknown,
civil rights fighters and regular folks, who beat down the doors of illegitimate power so they could work an eight, 10 or 12 hour day
and not be forced to shop at the company store
or live in company dorms or shacks;
from all those who suffered beatings and lynchings just to be able to vote;
and certainly from all those who try to keep government open
by prying loose public records from despots.
We all know and must acknowledge that none of these rights were ever given to anyone. They had to be fought for and taken.
Among those who gave me inspiration for this hearing is Harriet Hanson.
Harriet Hanson was an 11-year-old Lowell, Mass. girl working as a virtual slave in a textile mill in 1836.
The era is quite familiar to the respondents, who have cited practices of the day including whippings and beatings as justification for some of their heinous practices in the Regional District 10 government schools. A lawyer for the district even refers to the students as inmates.
Harriet Hanson knew prison-like conditions all too well. After working a 15 ½ hour day Harriet Hanson feasted on bread and gravy for supper and saw her wages cut and her boarding fee go up. She organized. She led a strike.
Here are her words that so inspire me today:
"I worked in a lower room where I had heard the proposed strike fully, if not vehemently, discussed. I had been an ardent listener to what was said against this attempt at "oppression" on the part of the corporation, and naturally I took sides with the strikers. When the day came on which the girls were to turn out, those in the upper rooms started first, and so many of them left that our mill was at once shut down. Then, when the girls in my room stood irresolute, uncertain what to do … I, who began to think they would not go out, after all their talk, became impatient, and started on ahead, saying, with childish bravado, 'I don't care what you do, I am going to turn out, whether anyone else does or not,' and I marched out
and was followed by the others.
As I looked back at the long line that followed me, I was more proud than I have very been since …"
Harriet Hanson went on to write a book called Loom And Spindle. She and her husband became steadfast supporters of woman suffrage.
The spirit of Harriet Hanson is as vital today as it was some 170 years ago when she stood up for justice.
For we are brought here today by the actions of the respondents who stole an election and sought to cover it up. If not for the backbone and spirit of a few courageous students at Lewis Mills High School in Burlington, we never would have known of the police state tactics including the withholding of public records by the respondents.
THIS IS ALL PART OF THE BACKDROP OF
THE FAMOUS DOUCHE BAG CASE,
Doninger v. Schwartz, Niehoff, et al, and the election of a banned candidate to student office, Avery Doninger of Lewis Mills High School.
The FOI Commission must set free all the documents sought in these requests and complaints of Aug. 1, Aug. 3 Aug. 6, Aug. 17 and Aug. 28 and begin to clean the stench and stain splattered on our students by the likes of Schwartz, Niehoff and Chinni.
This would be but one small step toward truth and justice.
For even if all the waters of all the great oceans were channeled to cleanse and devour the remaining stigma, it could take a long time for the good students and faculty to recover and stand tall.
Just as the mill owners of Lowell, Mass. crushed little children into slave laborers, so, too, the despots of Region 10 seek to wipe out critical thinking and instill regimentation among a servile mass.
Shine the light on these missing records, Mr. Hearing Officer. Hold these craven public officials accountable. Impose the maximum fines and civil penalties for these serial violators of the FOI law.
Now, to the requests and complaints beginning Aug. 1, 2007:
My Aug. 1 request to Schwartz states: "In addition, this request covers copies of the write-in votes submitted for Ms. Doninger and any and all related records including memos and e-mails. Memos and documents include but are not limited to discussions about the seizure of free speech t-shirts by your staff. To amplify, this request covers any and all public records about this matter in your possession or control, regardless of where they are stored, whether in your office and office computer, home and home computer, etc. … "
Chinni responded as follows related to the write-in ballots: "The Board does not poses [sic] any 'copies of the write-in votes for Ms. Doninger' or memos and emails regarding such write-in votes. There are also no documents or memos concerning the 'seizure of free speech t-shirts.' Accordingly, the board will not be providing any documents in response to these requests."
In response, I asked: "What happened to the scores of write-in votes cast for Ms. Doninger? There were perhaps more than 100 such votes. Did someone destroy these votes? Are they hidden in some secret location? Who made the decision on what should be done with these documents? What discussions took place regarding these actions?" No documents have been produced regarding the handling of the write-in votes and the storm of controversy and citizen outcry generated by the cancellation of the battle of the bands known as Jamfest.
In terms of the memories of Schwartz, Niehoff and Chinni, I submit the following: Certainly, as a lawyer, Chinni should have discussed the deprivation of free speech rights of those voters who cast ballots for Avery Doninger. Recently, her legal team argued this should not be an issue because it took a long time to discover the write-in votes. The duplicity abounds and the failure to produce records connected with this election theft is obscene.
As I told Schwartz, certainly there are records of who was on the ballot, who was taken off the ballot, who was solicited to run by the administration and who 'won' various elections without factoring in the write-in votes. I request those records as well.
How did they know who to report as winners during announcements? Was this
Significantly, Chinni attempted to rewrite history regarding the write-in ballots during another official proceeding. She lied about her response to me, feebly trying to cover her tracks from failing to tell truth and the entire truth.
The following paragraphs explain how Chinni attempted to pull off this charade.
On Nov. 20 Chinni falsely reported her response to my initial request. She added three crucial words that were not part of her response to me. She also spelled the word possess correctly in this Nov. 20 version.
Here is what Chinni wrote on Nov. 20, attempting to make it appear as if she told the truth on Aug. 1: "The Board did not possess any copies of the write-in ballots for Avery Doninger. The Board had no copies of those documents, only the originals."
Only the originals. Why didn't she say that on Aug. 1? Why did she insert this on Nov. 20 as if she had said it on Aug. 1? Clearly, there was an effort to deceive, to give a false impression, to lie. When a citizen asks for a copy of a public record, the common understanding is that it will be made from an original.
Chinni's attempt to rewrite history is evidence of her consciousness of guilt.
Without vigilance by the complainant, Chinni's lie might have succeeded. No one would have known who actually won the election in question. Chinni made a deliberate misstatement. Why didn't she tell the truth? She has a moral and legal duty to tell the truth to the public, especially non-members of the Bar.
It is noteworthy that Chinni employed a similarly-sleazy tactic regarding the billing records, that is, she gave the false impression in another official proceeding that she cited an insurance company's custody of the billing records in the initial response. This exhibits a pattern of trying to rewrite the record to cover up lies.
To eventually secure the write-in ballots, I was compelled to make the following points in my complaint two days after the request and Chinni's false statement:
In my request letter, I asked for -- among other items -- copies of the write-in votes submitted for the election of Avery Doninger as secretary for the Lewis Mills High School Class of 2008. A civil rights lawsuit claims school officials removed Doninger from the ballot in the spring of 2007 as punishment for her constitutionally-protected activity, including trying to involve the community in securing a venue for a concert.
There were numerous witnesses to the submission of the write-in votes. There were
scores of such votes submitted, perhaps more than 100. As one Lewis Mills student wrote: "On the day of elections everyone (I mean everyone) wrote in the girls name next to 'Secretary' and circled it. At the end of the day when they had to tell us who won they said that the elections were so close that they were going to give kids who weren't there a chance to vote the next day. The girl who won only had like 7 votes because everyone voted for the girl who wasn't running."
The write-in ballots were produced a week later, only after school officials and counsel were confronted about their subterfuge to hide the ballots. The results were reported by The Cool Justice Report and other media outlets including The Waterbury Republican-American and The Journal Inquirer. The production was not timely or in compliance with the law.
Notably, Schwartz and Chinni have not produced a single email or memo about the write-in ballots or any of the other related requests. They have not produced a single phone log. Indeed, they have not even produced a single email or phone log that was the subject of testimony by Schwartz and Lewis Mills Principal Karissa Niehoff in U.S. District Court. Schwartz and Niehoff testified about a number of emails and phone calls received on April 25, 2007, regarding their cancellation of the battle of the bands known as Jamfest.
They continue to hide billing records for work performed for and ultimately paid for by taxpayers in Burlington, Harwinton and throughout all of Connecticut, using Chinni and an insurance carrier as beards or fronts. They have produced only portions of Chinni's billing records.
I have requested complete production of all unredacted billing records related to these matters for an in-camera review by the FOI Commission. It is unconscionable that Scwhartz and Chinni continue to stonewall and lie about documents that should have been produced months ago. They should be fined to the full extent of the law and sanctioned in every way possible by the FOI Commission.
When a municipality selects lead counsel for serious and high-profile litigation, the administrators sign off - one way or another - on the selection of the firm to be hired. In any case, the board is a third party beneficiary of the policy and retainer. To date, documents citing the firm Howd & Ludorf have been not produced. The Region 10 Board of Education should have been billed for and probably paid the deductible for the insurance policy related to this litigation? Where are those records? The public is paying directly and indirectly for Howd & Ludorf's work. Clients - the taxpayers - have a right to view these public records promptly during regular business hours.
Perhaps Chinni continues to stonewall on production of these public records because they will demonstrate a massive Lawyer Welfare Program funded unknowingly by taxpayers and insurance ratepayers.
The stonewalling must stop. The lying must stop. Tell the truth and produce the records.
It is also noteworthy that Chinni lied to a reporter for the Bristol Press, Jacqueline Manning, about the billing records. Manning wrote a number of stories about the case and reported a statement from Chinni that there was no retainer agreement with Howd & Ludorf.
My next and final witness is Jacqueline Manning.
Manning, of Southington, will testify before the FOI Commission and the other official proceedings.
You also have Manning's statement from prior correspondence:
I called Christine Chinni on or about late July- early August 2007 regarding Katherine Rule and Thomas Gerarde of Howd & Ludorf making appearances in New Britain Superior Court on behalf of Region 10 school officials in the case of Avery Doninger. I also called Thomas Gerarde and Katherine Rule. None of them returned my calls.
On Aug. 9 I called Chinni and Gerarde again. Chinni called me back this time.
I asked Chinni how the law firm of Howd & Ludorf came to be involved in the defense team. Attorney Chinni said, "It's a private matter."
To this response I said that if the firm is being paid with taxpayers' money then it wasn't a private matter and that I was planning to submit an FOI request for a copy of the retainer agreement.
At that time Attorney Chinni said that I would receive the same response as Mr. Thibault, that there is no retainer agreement between Region 10 and Howd & Ludorf. I said what about billing or records payments made to the firm for its services? She replied there is no retainer agreement between Region 10 Board of Education and Howd & Ludorf. Additionally, she said Region 10 did not possess any billing records from Howd & Ludorf and no payments had been made to the firm by school district. Naturally I responded, "So they aren't getting paid for their services?" To which Chinni replied, "I didn't say that."
A few days later, Thibault contacted me and directed me to the Rules of Professional Responsibility section 1.5B. He also told me a source confirmed that the school district's insurance company was footing the bill. I called the state of Connecticut Judicial Branch and spoke with Chief Disciplinary Counsel Mark Dubious to verify that the lack of a retainer agreement i.e. that Chinni's response, was in violation of Professional Ethics Rules. Dubois confirmed this and commented for the article. (See Aug. 17, 2007 story in The Bristol Press.)
Before I submitted the article to my editor, I called Attorney Gerarde again and left him a voice mail message. I said something to the effect that Chinni stated there was no retainer agreement with his law firm and according to Mark Dubious this a violation of Professional Ethics rules. I said that I welcomed his comment for the article. I also called Christine Chinni and left voice mail messages simply asking for a return phone call regarding an article that I was writing about the Doninger lawsuit. I also called Paula Schwartz and left a voicemail message asking if the taxpayers of Harwinton and Burlington were paying for the legal services of Howd & Ludorf in any way shape or form. Schwartz never returned my phone call.
Gerarde called me back a short time later. He said he Mark Dubois was correct and confirmed that Howd & Ludorf had a retainer agreement with Region 10 Board of Education's Insurance carrier, Massamont Insurance Company. He said the insurance company was paying all of the firm's legal fees.
Approximately three to four hours later Chinni returned my phone call. I asked her again if any retainer agreement existed between Region 10 and Howd & Ludorf. She said, "No."
I also asked Chinni if the taxpayers of Harwinton and Burlington were paying for the legal services of Howd & Ludorf in any way shape or form. She said, "No."
I said, "Thank you very much Attorney Chinni."
She immediately said, "Wait," and told me that that Howd & Ludorf had a retainer agreement with Region 10 BOE's insurance company but she really didn't want to go on record as saying that. I said that was fine and asked what she would like to be on the record. Chinni said she preferred not to comment at all. She further said that Region 10 has an obligation to defend the administration. I told her that I use the comments she'd given previously given me about the issue being a private matter. She said that was fine.
Also testifying today were Schwartz and Region 10 business manager David Lenihan. All witnesses were cross-examined by the opposing parties.