By David DesRoches
A high-powered public relations company and the biggest law firm in Connecticut have teamed up to keep residents of Darien, Conn., in the dark about aspects of an ongoing crisis in the public school district’s special education program.
While the district has taken tremendous and costly steps toward rebuilding its special education program, the work of Duby McDowell Communications to help the schools manage its public image is being withheld from the people who are paying for this service.
McDowell — which recently changed its name to McDowell Jewett Communications, increasing its influence in its field — was retained by Shipman & Goodwin, a law firm that represents roughly 80% of the school districts in Connecticut. From March to December 2013, McDowell was paid more than $42,000 by Darien taxpayers, yet Shipman argues McDowell’s work is exempt from disclosure under lawyer-client privilege. Shipman bills the schools and itemizes an expense each month for McDowell’s services.
The Darien Times newspaper filed a Freedom of Information request for this work but was denied access. An appeal with the state’s Freedom of Information Commission is pending.
During the summer of 2013, the Board of Education lamented the cost of FOI requests on its bottom line. On several occasions, the board chairman, Betsy Hagerty-Ross, claimed FOI requests were costing so much money that the district would eventually need to request a supplemental appropriation to continue educating children. In short, she claimed that requests for information were harming children’s education. Too much was being spent on fulfilling FOIs, and not enough on kids.
The Times investigated this claim, and reported that the district had actually spent more money on McDowell’s services than it had fulfilling FOIs. However, no complaint over this fact was ever uttered by any Board of Education member. Ironically, FOIs were the very tool that uncovered a litany of illegal activity in Darien’s special education program.
In January 2014, the school board and the administrators’ union entered into arbitration, because the two groups could not agree on contract terms by other means. They pointed fingers at each other for causing the special education mess. In February, the arbitration panel arrived to a decision, deciding on 10 terms in favor of the board, and eight in favor of the administrators.
In the panel’s 74-page decision, the phrase “public relations” appeared nearly a dozen times. The panel had become acutely aware of the public relations problem that the special education disaster had created. This argument was made by the school board, which claimed that a 2% raise to the members of the administrators’ union would only deepen the distrust many felt toward these employees. Two former union members were directly involved in the problems, but since they had left, the union claimed if it accepted no raise it would have been admitting fault.
The panel continuously discussed the public relations problem, yet failed to mention the real problem — children with disabilities were not getting the education they’re legally entitled to under the federal Individuals with Disabilities Education Act.
Arbitrators Susan Meredith, John Romanow and James Ferguson made a point to mention that they are only supposed to determine awards based on their statutory authority, yet at the same time noted they were giving “educational [and] public relations issues… our serious consideration.”
The school board also cited media coverage as contributing to this bad public image. Those involved complained to the panel that they were approached every day, even “at the grocery store,” by people concerned about special education — as if an educated populace was creating an inconvenience for those who were likely responsible for the problems.
The Darien Times has published close to 150 stories since the problem boiled over in March of 2013, when 25 parents signed a complaint with the state Department of Education, alleging systemic violations to special education law. These allegations were confirmed in a two-part state investigation, and more problems were uncovered in an independent probe.
As the paper continued its investigation, people resigned, others were hired and programs began to change, but obstacles remained. These obstacles came from two places. One, from those in the community who felt the district was spending too much on special education and would like to see the district do less for children with disabilities. The other came from the public relations company.
On one occasion, McDowell’s influence seemed to show itself. The paper had contacted several organizations to get comment on a story about children being restrained or secluded. Oddly, one organization was headed by a person who shared the same peculiar last name as one of McDowell’s employees. This organization had been quoted extensively in the media, but when The Times had asked for quote, it was told, “we do not have someone available to comment for this story.”
In sum, McDowell is being paid by the public but through a law firm. This enables the firm to claim McDowell’s work is exempt under lawyer-client privilege. McDowell has then used its influence to do whatever it sees fit, including, possibly, telling organizations not to talk to the one news outlet that is arguably responsible for ensuring that Darien’s mess is cleaned up appropriately.
If the FOI commission decides in favor of the school board — that McDowell’s work is exempt from disclosure — what is to stop law firms from hiring all subcontractors for a public entity, and then claiming the same privilege? This would surely set a precedent that has dangerous implications for the public’s right to know.
Connecticut employs a four-part test to determine if an exemption is allowable under lawyer-client privilege. In this case, Shipman must be acting in a professional capacity for McDowell; two, the communications must be made to Shipman by current employees or officials of McDowell; three, the communications must relate to the legal advice sought by McDowell from Shipman; and four, the communications must be made in confidence.
There is also a legal provision that protects communications if the third-party, in this case McDowell, is considered the “functional equivalent” of an employee of the law firm’s client, in this case the school district. Public relations are a responsibility of Darien’s superintendent of schools, according to Board of Education policy. There is no district position for a public relations manager or a similarly named title.
Releasing the public relations work would show exactly what taxpayers got for $42,000 (a figure that grows by $5,300 each month). It would also be an olive branch to the community from the school board and its lawyers. If healing is what needs to happen, as they claim, then perhaps this revelation would be the shot of life needed. What do they have to fear?
David DesRoches is assistant editor of The Darien (Conn.) Times.