BRENTWOOD — The Portsmouth Herald should not have to pay a lawyer, to go to court and fight for a copy of an arbitrator’s report about “awards” to fired officer Aaron Goodwin, just because the city fears being sued by Goodwin's union, argued the Herald's lawyer, Greg Sullivan, during a Thursday court hearing.
The Rockingham County Superior Court hearing was held in response to the Herald's legal action against the city, after being denied a copy of the report, in response to an Oct. 31 Right to Know request. The arbitrator’s report comes more than three years after Goodwin was fired for accepting a $2 million-plus inheritance from the late Geraldine Webber, an elderly Shaw Road resident with dementia. Goodwin was fired in June 2015 and his inheritance was overturned the same year by Judge Gary Cassavechia, who found Goodwin had unduly influenced Webber.
Goodwin has been fighting through the Ranking Officer's Union for his job back and/or back pay. Union lawyer Peter Perroni contends the recent report about “awards” to Goodwin is a personnel record and therefore not public under the state’s Right to Know Law. The city on Wednesday filed an answer with the court stating it agrees with the Herald that the report is public, but because Goodwin's union has raised objections, it wants the court to rule on the debate.
Sullivan argued first during the Dec. 13 court hearing, telling Judge Amy Messer the city doesn't have a right to shift its burden to the union, while reiterated his request that the city pay the Herald's legal costs. He disputed the union's assertion that the report is exempt from disclosure as a personnel record, noting Goodwin is no longer employed by the city, so there is no internal personnel relationship.
"He was fired long ago," said Sullivan, who reminded the Right to Know Law is designed "to let the public know what its government is up to."
Addressing the union's assertion that Goodwin's privacy rights will be violated if the report is made public, Sullivan said Goodwin's "individual conduct" while he was a police officer is why he's the subject of publicity. Sullivan said the debate has nothing to do with Goodwin's medical, sexual or private conduct and is the quintessential example of the public wanting and having the right to information about what their government is doing.
Tom Closson, the city's labor lawyer, next told the judge he agreed with 90 percent of Sullivan's argument. He said the arbitration process is mandated in the union's collective bargaining agreement and he disagreed that the city should pay the Herald's legal costs. Closson said the city is in a "Catch-22 situation," in that it agrees the report should be disclosed publicly, but once the union raised its concerns, found no relevant case law and now seeks the court's ruling.
"I can't imagine a case in New Hampshire that has garnered more attention," Closson said, adding he believes the public interest outweighs Goodwin's privacy.
The judge then asked, if the city agrees the report is public, why doesn't it release it.
"Why are we here?" the judge asked several times. "If you don't agree with the union's position, don't you have an obligation to turn it over?"
Closson said he doesn't want the city, his client, to release the report, then get sued by the union. He said there's no case law that governs the unique circumstances of this situation, while the union has raised "a host of reasons why it thinks it's a personnel record." If the city releases the report, he said, it will face a suit by the union arguing that Goodwin's privacy rights were violated.
"If the court says it's public, we'll turn it over," he said.
Closson also informed the court the dispute with Goodwin has not been settled and no payment has been made.
Sullivan countered that it sounds like the city would rather be sued by the Herald than the police union and the Herald "should not have to pay for that decision."
The judge then asked Closson how she can find he's met his burden not to turn over a public record.
"I don't think you can," he said.
Perroni was allowed to argue as an intervener in the case and filed an objection stating privacy interests outweigh the public's interest in disclosure. He wrote that the report involves "the proposed termination of an employee" which is "a quintessential human resources matter." Perroni also noted that other officers and witnesses referenced in the report "have strong privacy interests put at issue by disclosure."
"Disclosure of the award could subject individuals to stigma, embarrassment and reputational injury," the union lawyer wrote.
The judge raised the question of whether a redacted copy of the report could be released.
Closson agreed to submit the report to the court, under seal, for the judge's "in camera" review, which Sullivan noted should be done with the Herald's lawyer present. The judge gave both sides five days to file supplemental pleadings, if they choose, and said she will study cited case laws and take the matter under advisement.