City denies seeking secrecy; plaintiff’s lawyer claims proof

Posted: 8:22 pm Wed, December 22, 2010
By Brendan Kearney
Daily Record Legal Affairs Writer

http://www.vimeo.com/18099160

Watch video of Mayor Rawlings-Blake’s response Related coverage Settlement terms revealed in wrongful arrest case City solicitor defends confidential settlement Audio recording from Yakov Shapiro’s initial bail hearing

Baltimore Mayor Stephanie Rawlings-Blake said she, like the city’s top lawyer, has no second thoughts about the confidential nature of the settlement reached earlier this year in the case of a Montgomery County violin teacher mistakenly arrested on child sexual abuse charges.

“So if there’s a plaintiff that, in negotiation, requests confidentiality, and my city solicitor agrees with that suggestion, we’ll do it again,” Rawlings-Blake, who has cast herself as an advocate of transparency, said at a news conference promoting fire safety Wednesday afternoon.

And in cases where the plaintiff does not request confidentiality, as the plaintiff’s lawyer contends in the recent case?

“You’re suggesting circumstances that weren’t present here,” the mayor responded.

Letters and e-mails between the city’s lawyers and the plaintiff’s lawyer, provided by the plaintiff’s attorney, suggest otherwise in the settlement of Yakov Shapiro’s lawsuit.

In a Feb. 18 e-mail, while settlement negotiations were underway, Deputy City Solicitor David Ralph assured Steven Kupferberg, Shapiro’s attorney, that “The Non-Disparagement/Prohibition Against Public Statements is the appropriate way to limit communication regarding this matter because we are a governmental entity and (sic) has been a major factor in the City agreeing to pay this settlement.”

Kupferberg provided a copy of that e-mail and other correspondence after viewing a video of the mayor’s remarks.

In a May e-mail to police lawyer Neal M. Janey Jr., Kupferberg refers to correspondence from Janey regarding the requests under the Maryland Public Information Act that the city does not want to litigate.

In that e-mail, Kupferberg suggests eliminating the confidentiality clause all together. He also objects to a statement made by the mayor’s spokesman shortly after the settlement was approved that the confidentiality piece came at the plaintiff’s request.

“In response to your e-mail, as you know, it was never Mr. Shapiro’s position to have the confidentiality paragraph (Non Disparagement Prohibition Against Public Statements) contained within the Mutual Release,” Kupferberg wrote. “Additionally, contrary to the statement in the BALTIMORE SUN by Ryan O’Doherty, the spokesman for Mayor Stephanie C. Rawlings-Blake, Mr. Shapiro did not demand confidentiality as part of the settlement agreement.”

And, in November, as attorneys for The Daily Record were preparing for litigation over the denied MPIA request, Nilson and Kupferberg exchanged several e-mails in which Kupferberger again seeks to have the confidentiality clause excised from the settlement agreement, while Nilson suggests that Kupferberg “tweak” a proposed revision.

“While I can make an agreement with a party that the heart of a provision will not bar specific behavior at a specific time without going back to the BOE, I cannot and will not simply amend an agreement by deleting the paragraph in its entirety without going back to them,” Nilson wrote on Nov. 19. “Moreover I am simply unwilling to delete it forever under all circumstances simply because you don’t like confidentiality clauses.”

The dispute may be more than a matter of honor, since the terms of the revised settlement agreement, reached Nov. 22, only protect Kupferberg and Shapiro’s right to disseminate “truthful” information about the case.

Reached late Wednesday, Nilson said he was in his car, late for an engagement, and he did not want to comment on the documents furnished by Kupferberg without reading them. He reiterated his position that he had been told the confidentiality clause originated with the plaintiff and that he agreed with it, regardless of its origin.

“I was happy to request that the plaintiff’s name be kept confidential. I was pleased to do it,” Nilson said. “I would have done it even if I hadn’t been told that it was there at the plaintiff’s request. It wasn’t in there at my request, but I thought it was an appropriate thing to do.”

Asked why he would have done it even if it weren’t the plaintiff’s request, Nilson said it’s inherent to his job.

“Number one is to protect the city’s interest, and second it is to make sure, in this case, that in doing so, that we don’t cause the injured party any further harm,” he said. “And I thought in this case it was appropriate to do both things.”

Nilson questioned Kupferberg’s motives in wanting to speak about the case and said whatever the origin of the confidentiality request, Kupferberg agreed to the terms of the settlement.

“He signed the goddamn agreement,” Nilson said.