RUTLAND — A legal battle between the Rutland Herald and the city of Rutland is continuing in Vermont’s Supreme Court over legal fees the newspaper accrued during a three-year fight for internal police department records.
The high court decided earlier this month that internal investigations related to officers who viewed pornography on their work computers wasn’t protected by a public records exemption designed to protect an employee’s privacy rights.
But the matter of who will pay the more than $80,000 worth of legal bills incurred by the newspaper to win access to the records remains unresolved and will probably be decided by the court.
In a 16-page motion filed with the high court, Herald attorneys Robert Hemley and Matthew Byrne argue that the city is liable for the newspaper’s expenses in accordance with an amendment to state law, which took effect in 2011, that made it mandatory for public agencies to pay “reasonable attorney’s fees and other litigation costs incurred in any case... in which the complainant has substantially prevailed.”
In the lawsuit brought by the Rutland Herald, the high court decided that more than 400 pages of internal investigation files concerning two city police officers who were disciplined for looking at pornography on the job were of vital importance to the public’s interest in the operation and management of its police department.
The newspaper initially submitted a public records request for the documents in February 2010. The city denied the request on the grounds that the records were off-limits to the public due to the privacy exemption and another exclusion that prohibits access to records compiled during a criminal investigation.
The denial led to a protracted legal battle that involved multiple hearings in Rutland civil court and two trips to the Supreme Court. In the end, the newspaper didn’t get everything it asked for — the high court ruled that a criminal investigation of Detective Sgt. James Tarbell, who was suspected of possessing child pornography on his computer in 2004, was off limits. Investigators decided not to bring charges because there was no evidence that the individuals in the pornographic images were under the age of 18.
But the documents released by the court did shed light on the identities of the officers who were disciplined and the extent of their conduct; Tarbell’s computer had more than 25,000 downloaded pornographic images.
The disclosure was also followed by statements from former Rutland Mayor John Cassarino who said that former Rutland Police Chief Anthony Bossi chose to lightly discipline Tarbell after the sergeant reportedly threatened to go public with embarrassing information about other officers who were looking at pornography on the job 10 years ago.
In the end, Tarbell was suspended without pay for two weeks — the same sanction brought against another officer who received and forwarded about a dozen images of adult pornography.
“The police department did not want the documents disclosed because they plainly showed that the department was treating employees differently and that the Rutland Police Department wanted to avoid negative publicity,” the Herald’s lawyers wrote.
In arguing for legal fees — which totaled $81,767 as of Sept. 30 and continue to accrue — the newspaper’s lawyers argued that the Herald’s long legal battle wasn’t motivated by financial gain.
“It would have been more profitable not to have pursued the litigation at all. Instead, the Rutland Herald stayed true to its mission to gather and report the news. If the state wants to continue to have this vital function as part of its democracy, the court should award fees,” the new motion reads.
In a telephone interview, Byrne said the Herald’s lawyers tried to negotiate with the city on the amount of legal fees to be paid but was denied.
Rutland City Attorney Charles Romeo said Monday he couldn’t discuss the city’s position on the legal fees but said he would file a response in court to the newspaper’s motion.
Asked if the city or its insurance company, the Vermont League of Cities and Towns, would be responsible for paying any legal fees decided by the court, Romeo said he didn’t know.
However, Steven Jeffrey, executive director of VLCT, said Monday that the city would most likely foot the bill.
“You can never say never but there’s nothing in their policy that would cover that type of claim,” Jeffrey said.
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