HARTFORD, Conn. – A taxpayer-funded lawyer representing Board of Education member Shirley Mosby (D-At Large) claimed Thursday that she does not have to provide evidence to parties who have requested it through a Freedom of Information request because the evidence was not collected in her official capacity as a Board member.
“The fact that Miss Mosby is a Board of Education member does not mean that all of her doings are subject to a Freedom of Information request. It only means those doings that are part of her official business are subject to a Freedom of Information request,” Alexa Lindauer of Beck and Eldergill said to the Freedom of Information Commission in Hartford at a hearing stemming from Mosby’s allegation one year ago that she was subject to discrimination and disparate treatment from other Board members.
(Video of the hearing at the end of story)
Mosby, Lindauer, BoE Communications Director Brenda Wilcox Williams, two lawyers representing the BoE, Republican Town Committee Chairman Peter Torrano and NancyOnNorwalk all made the trip to participate in the FOIC hearing.
Lindauer produced BoE bylaws as an exhibit for the defense and said that Mosby’s complaint with the NAACP was made as a private citizen, not as a Board member. Therefore, the evidence was private, Lindauer said.
A source later disputed Mosby’s claim that she was acting as a private citizen, providing information to show that the Board paid $1,125 for her lawyer.
Mosby in June asked the Board to pay for her lawyer as complaints had been filed against her in her capacity as a Board member, according to emails provided to NancyOnNorwalk. That request was granted after some debate.
“I’m wondering how she can claim she did not level charges or accusations as a board member, then tells the BoE they have to supply her with a taxpayer-funded attorney because she is on the board. Sounds pretty contradictory to me,” Torrano said in a late-night email.
The drama dates back more than a year. On July 1, 2014, NAACP member Brenda Penn-Williams addressed the BoE, challenging Chairman Mike Lyons to respond to a letter she had been sent the previous week. Mosby had alleged that she was the victim of “disparate treatment,” Penn-Williams said.
“She alleges that the African-American and Hispanic female board members are subject to continual intimidation, harassment, disrespect, exclusion, discrimination, lack of transparency and not being informed, and subject to disparate treatment,” Penn-Williams said to the board, reading a letter she said had been sent to Lyons.
Penn-Williams was then chairman of the NAACP Legal Redress Committee.
In March, it emerged that Mosby had been telling people that she had collected evidence to support her claim. Torrano, NancyOnNorwalk, and Parent Teacher Organization Council President Michael Byrne sent Mosby Freedom of Information requests asking for copies or access to the evidence, which was said to include BoE emails. Mosby responded to Torrano and Byrne but ignored NoN, although the Freedom of Information Act mandates that a public agency must respond within four days. In her two responses she did not provide the requested information.
The three parties filed complaints in April. The Commission notified Torrano and NancyOnNorwalk this month that their complaints had been combined.
The PTOC complaint will be heard in October, according to Byrne. Harmon said Thursday that she needed to keep the hearing to an hour and a half, and did not feel there would be time to consolidate all three complaints.
One of the first orders of business at the hearing was the dismissal of the two lawyers from the firm Shipman and Goodwin, representing the Board of Education.
“I have no idea why the Board is here because we have no complaint against the Board,” Torrano said to FOIC Hearing Officer Valicia Harmon.
NancyOnNorwalk did not object to allowing the two lawyers to leave. They did leave the hearing room for a while but then returned to listen to the rest of the hearing.
Torrano explained to Harmon the basis of his complaint, calling Mosby’s NAACP complaint “essentially” an accusation of racism. The evidence would allow the Republican Town Committee to resolve any possible problem, he said.
The complaint had brought embarrassment to the city, with a City Hall rally that called Norwalk “Ferguson in Connecticut,” he said. He said a manila envelope had been produced at that rally that was said to contain evidence.
Mosby, in the course of testifying, acknowledged that she had collected evidence to support her complaint. She said that includes documents from BoE executive sessions. The complaint was filed on behalf of herself and BoE members Migdalia Rivas and Rosa Murray, she said. The evidence from Murray and Rivas predates her time on the Board, Mosby said.
Lindauer questioned Mosby, drawing answers that said the Board did not fund her complaint to the NAACP, that the Board was not involved, that no one on the Board asked her to file the complaint.
“Did you ever ask that the complaint made with the NAACP be brought to the attention of the Board of Education?” Lindauer asked.
“No,” Mosby said.
“Was the complaint brought to the attention of the Board of Education?” Lindauer asked.
“A representative of the NAACP attended a Board meeting and made a request for a meeting to discuss the complaint. But the chair of the Board refused to meet,” Mosby said.
Harmon asked for that segment to be repeated. Lindauer continued.
“Did you ask that representative to attend that Board meeting?” Lindauer asked.
“Uh, no. Uh,” Mosby said.
“They just showed up,” Lindauer said.
“They showed up because the complaint was filed with the NAACP and that’s their – ” Mosby said.
“And they showed up at a public meeting,” Lindauer said.
“Right, they showed up,” Mosby said.
“‘Let’s talk about this in some forum,’” Lindauer said.
“The complaint was filed with the NAACP. The person came out, representing the NAACP at the meeting as part of their responsibility,” Mosby said.
On July 1, 2014, NAACP members arrived en masse, most wearing NAACP T-shirts. Mosby arrived at the same time. She did not appear surprised when Penn-Williams spoke at the lectern, confronting the Board with the allegation of disparate treatment.
NAACP President Darnell Crosland said at the time that evening’s monthly NAACP meeting had been cut short so members could attend the BoE meeting.
Mosby, on Thursday, said her evidence included newspaper articles and documents related to a superintendent search.
Rivas and Murray claimed after the appointment of Manny Rivera as superintendent in 2013 that they had been excluded from some emails.
Harmon questioned Mosby about her evidence.
“I think it’s pretty convincing testimony that some of these records that these are things she did outside of her public office,” Harmon said. “Other records are public documents that the witness testified are exempt from public… what you can do is you can move to have me look at them in camera. I just want to put that out there, the ones that are exempt I would be able to look at because they are exempt.”
Torrano cross-examined Mosby. She said her complaint was “based on discrimination, not racist behavior.”
“The claim was a private complaint to two other Board members stating the treatment was of a discriminatory nature. We never said anything about racism or racists,” Mosby said.
Later, under questioning from Harmon, Mosby referred to comments made by former Republican BoE member Jack Chiaramonte. Chiaramonte raised a furor in minority and Democratic circles when he called Mosby “The girl who cried black” and later resigned from the board under fire in connection with racially charged social media posts.
“I said, ‘People look into it, there’s proof, that’s going to show,’ because there’s an indicator right there of discriminatory treatment that women of color are subjected to,” Mosby said.
“I have a notebook that consists of documents that I put together in my own free time,” Mosby said to Harmon. “Not as a Board member but as an individual person and not submitted to any government agency at all. … It includes some emails and those are emails that we talked about that are part of the executive session.”
Torrano expressed skepticism.
“I can only take the testimony from the witness,” Harmon said. “I can ask her to provide me with the records that she claims are exempt. Would you like me to look at the public records that she claims to be exempt?”
“I would love you to do that,” Torrano said.
“How do I know that you’re getting all the records?” Torrano asked.
“I am trusting counsel and Miss Mosby to – I mean, I’m ordering them to give me the records that they claim are exempt public records,” Harmon said.
“I don’t have the same faith,” Torrano said.
“Unless and until I have a reason not to believe witnesses who are testifying under oath I am going to believe them. I have counsel who is going to put the index together for me. So I have no reason to disbelieve anybody here,” Harmon said.
Torrano questioned Mosby further, getting her to reveal that Penn-Williams is a “very close friend.”
Harmon questioned the line of questioning.
“Miss Mosby is tip-toeing around the tulips here,” Torrano said. “There are people who have been speaking on her behalf, while she stands there. There are people who are representing her. She has orchestrated a lot of this in our estimation, and by using other people to use her words to claim her evidence –“
“I don’t think she is doing that, though,” Harmon said, going on to remind Torrano that Mosby said she had not provided evidence to the NAACP.
Mosby is currently listed on the NAACP website as a member of the organization’s Executive Committee.
NancyOnNorwalk argued that Mosby is a volunteer, an elected official whose time is not paid for. There is no such thing as “free time” as “time” is not kept, NoN said.
Lindauer indicated that she thought that a specious argument. Harmon sustained that objection and others.
Neither NancyOnNorwalk nor Torrano had legal representation.
Mosby agreed to provide her evidence to Harmon for review by Sept. 3. Harmon said she would examine them to determine which records might be exempt from FOI. This is a reference to the documents from executive sessions.
Mosby never addressed the idea that she had not responded to the NoN FOI request. She said she had seen the email requesting the evidence.
Harmon said NoN and Torrano could file briefs summarizing their stands, between Sept. 3 and Sept. 17.
Executive session documents are regarded as confidential. Mosby and other Board members have taken an oath to respect the secrecy of executive sessions.
According to a lawyer who declined to be identified:
“Generally, confidentiality obligations like that do not hold in administrative or judicial proceedings (and therefore releasing documents as part of such a hearing would not constitute a breach). The only times that such proceedings do not override confidentiality obligations is where a ‘privilege’ is involved (e.g., attorney/client, doctor/patient). So the oath would not be violated by releasing such records in such a proceeding.”
In a June 22 letter to Lyons, Mosby said she had been informed by the state that she deserved indemnification from the Board because complaints had been filed against her as a sitting board member.
Lyons replied in a June 23 email:
“There is no question that you are entitled to indemnification here (as I was with the NAACP complaint that you filed). However, I need to understand your reason for claiming a conflict of interest. When you say ‘current inside legal counsels,’ do you mean the Corporation Counsel’s office? We have already referred this matter to Atty. Mooney, our outside counsel, to handle, rather than Corporation Counsel. Do you have any objection to having Mooney represent you? It will obviously cost the Board more scarce resources if we have to retain a separate outside counsel for you, and I’d prefer to save those funds if we can use Atty. Mooney. Let me know.”
“There is a conflict of interest since the FOI involves the complaint with the NAACP that was made against you, as the board chair, as well as other board members. I do object to Attorney Mooney handling this since he works closely with the board and with you as chair.
“Since I would potentially be sharing privileged and confidential information with that person, I prefer to have a neutral third party attorney who is not familiar with the board or individuals who were involved, who can be neutral and objective.
“I would like to thank you for your offer of Tom Mooney; but I prefer to seek outside counsel of my choice to handle this. Please confirm that the Board will allow me to select my own attorney and I will take steps to retain an attorney.”
Lyons replied the next day:
“I checked with Tom Mooney and he feels your position is reasonable under the circumstances, and that in this scenario you can proceed with retaining your own attorney at Board expense. …
“Tom noted that the Board is only obligated to pay ‘reasonable’ attorneys fees under the indemnification statute; the provision is not unlimited (since public funds are being expended), so please note to your counsel that he/she should exercise reasonable efforts to keep such fees within normal parameters, or NPS will be entitled to dispute them (something we’d both obviously like to avoid).”
A subsequent email identified the cost as $1,125.