By David DesRoches
Public relations consultants in Connecticut have no special protection when it comes to work they perform for a legal team on behalf of a public entity, according to a recent decision by the state’s Freedom of Information Commission.
The school district in Darien, one of the nation’s wealthiest communities, had hired a former television reporter to help it navigate a crisis within its special education department. But school officials didn’t hire the ex-journo directly – its lawyers, Shipman & Goodwin, hired the PR company, Duby McDowell Communications (which has since rebranded itself as McDowell Jewett Communications). The lawyers then billed the district about $50,000 for ten months of McDowell’s services.
I sent a Freedom of Information Act request to the district to review records of McDowell’s work, but the lawyers declined to provide it, citing lawyer-client privilege. They argued that McDowell’s services were “inextricably intertwined in the provision of legal advice.”
I argued that McDowell’s work wasn’t protected, especially if the sole reason was because she was hired by lawyers and not the school directly. Shipman was simply invoking this privilege to keep details about McDowell’s work hidden from public scrutiny while the public was already heavily scrutinizing the school district over its special education snafu.
This delay tactic successfully inhibited the newsworthiness of the content within the records, as the FOI Commission ordered the records to be made public roughly two and-a-half years after McDowell was first hired.
The records showed that the school board, administrators and lawyers sent McDowell dozens of emails, seeking advice on how to respond to parents and the media as problems began spiraling out of control, ending in the resignations of the superintendent, three top special education administrators, a principal, and others.
Special education law has strict guidelines on how money can be spent, but a two-part state investigation found Darien was cutting services to kids with disabilities to save money, therefore violating the Individuals with Disabilities Education Act. In the meantime, many parents pulled their kids from public school and placed them in private ones. Others filed for due process hearings to challenge their child’s educational program designed by the district.
It remains unclear if students suffered as a result of Darien’s actions, though standardized test results in 2013 (the year the problems occurred) showed that students with disabilities did worse than in years prior while other students improved.
Hearing officer Tracey Brown mediated the case for the FOI Commission in June 2015. In her decision – which was unanimously approved by the commission – Brown cited various cases that discussed the need for the lawyer-client privilege to be “strictly construed” because “it tends to prevent a full disclosure of the truth in court.”
Most of McDowell’s work had nothing to do with legal advice, the commission determined. Brown wrote that McDowell “provided standard public relations advice for which there was no evidence that such advice impacted the legal strategy or legal advice of Shipman and Goodwin attorneys to [Darien schools] with respect to the state’s investigation” into the district’s illegal special education program.
Brown also referenced two cases involving lawyers invoking the lawyer-client privilege for PR clients – Calvin Klein Trademark Trust v. Wachner and In re Grand Jury Subpoenas (March 24, 2003), both out of a New York federal court. Citing the Klein case, Brown found that the records “appear on their face to be routine suggestions from a public relations firm as to how to put the ‘spin’ most favorable” to Darien.
While contracted by Shipman to help Darien, McDowell would email her advice to district officials, and carbon copy Shipman lawyers. It turns out this system could have contributed to the loss of confidentiality. Citing State v. Cascone, Brown noted that “statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality.”
There could be some wiggle room here. If McDowell only communicated with Shipman, it’s possible her work would have been protected. There might be enough ambiguity in the decision for future similar situations to be decided differently, depending on how communications are sent and to whom.
Shipman attorney Tom Mooney suggested the commission’s decision would “create new law” and that it would “impede public officials in doing their work without any concomitant benefit to the public.”
“Respectfully, I submit that the commission drew an impractical and unworkable distinction between a lawyer providing legal advice and a lawyer providing public relations advice, because legal advice often includes consideration of how best to communicate with others,” Mooney stated in an email.
As part of her work, McDowell wrote and edited press releases, advised the district on firing an employee, dissected media coverage, assisted with responses to the press and parents, and even wrote a job description for a district position.
Attorney Andrew Feinstein represented Darien parents during the fiasco. After examining McDowell’s work, he says it’s hard to see how the district justified spending so much money on PR when the problems it faced involved cutting spending in special education.
“This is a colossal waste of taxpayer money,” Feinstein said.
Looking ahead, Mooney said he doubts that the decision will impact how school districts function since PR firms are rarely consulted. However, in an era of information overload and competition between schools for students, many districts are considering adding full-time PR staff to handle marketing, communication, outreach, and even brand development. That’s of course an entirely different story.
For now, PR work, including “crisis communication,” is not protected work under Connecticut’s open records law.
David is a reporter for WNPR in Connecticut. He can be emailed at firstname.lastname@example.org.
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