The City of Rockville will not have to share a 2012 report it commissioned on employment discrimination with a former employee who claims he was underpaid and ultimately fired because of his race.
A federal magistrate judge in Greenbelt ruled that the attorney-client privilege protects the report that Courtney L. Morgan, who is black, sought in his racial discrimination suit.
Rockville hired Saul Ewing LLP in May 2012 to provide legal advice regarding employee complaints and to make recommendations regarding employment policy. The report, delivered to the city in November 2012, found no unlawful conduct. Saul Ewing also made recommendations in the report to improve the city’s policies and revise its personnel material.
The city announced the report’s findings in a press release but has denied lawyer and media efforts to obtain an actual copy, including requests under the Maryland Public Information Act.
Saul Ewing’s lawyers interviewed 44 city employees for the report. Kevin Bock Karpinski, a lawyer for the city, noted in federal court filings that the employees signed confidentiality statements before speaking, and a confidential telephone “hotline” was set up to ensure anonymity and no retaliation. The report has only been shared with the City Attorney’s office and City Manager, he added.
“The purpose of hiring Saul Ewing was to obtain legal advice regarding the content and sufficiency of the city’s personnel policies vis-à-vis federal and state laws and statutes,” Karpinski wrote in opposing the release of the report. “That is without question quintessential ‘legal’ advice and is covered by attorney-client privilege.”
But Douglas N. Gottron, a lawyer for Morgan, countered the city was not getting legal advice because employee participation was entirely voluntary and the information the city wanted did not deal with employee performance or employment terms.
“Any person, learned or otherwise, could have conducted such an investigation by simply interviewing the targeted lower level city staff employees, which is all that Saul Ewing was engaged to do,” wrote Grotton, of Morris Palerm LLC in Rockville.
U.S. Magistrate Judge Jillyn K. Schulze disagreed in a ruling signed Oct. 24 but published Tuesday.
“That the investigation involved interviews with lower-level employees, that the interviews were not employer-directed, or that a non-lawyer could have conducted the interviews, does not alter the fact that the purpose of the relevant communications was to provide legal advice regarding compliance with employment law,” Schulze wrote.
Morgan’s lawyers also argued the city waived its attorney-client privilege by announcing the results of the report in a press release. But Schulze agreed with Karpinski, the city’s lawyer, who said the press release did not reveal any confidential information obtained from employees.
“The news release merely outlines the legal services provided to the Rockville City Council in response to prior employee complaints,” Schulze wrote. “Informing the public that counsel recommended improvements to communication between management and staff does not constitute a disclosure of a confidential communication.”
Terry Morris of Morris Palerm, Morgan’s lead attorney, did not respond to a request for comment.
Karpinski, of Karpinski, Colaresi & Karp P.A. in Baltimore, also did not respond to a request for comment.
Morgan, the former division chief of inspection services for Rockville, alleges in his lawsuit he was fired in February 2011 after six months in his position because of his race, and that some of his white subordinates and other division chiefs received had higher salaries.
Morgan’s complaint was originally filed in April 2013 in Montgomery County Circuit Court but transferred a month later to U.S. District Court in Greenbelt.
The case is Morgan v. City of Rockville, Maryland, et al., 8:13-cv-01394-GJH.
Schulze’s ruling is the second to find the Saul Ewing report privileged information. A Montgomery County judge reached the same conclusion in December in a separate racial discrimination case, but ordered the city to turn over a limited number of interview summaries to a lawyer for Donald Dorsey, who spent a dozen years as a utility worker.
Karpinski, who is also representing Rockville in the state lawsuit, appealed that ruling; however, the Court of Special Appeals dismissed the appeal last month, finding it did not have jurisdiction because the judge’s order was not a final judgment.
A petition for writ of certiorari to the Court of Appeals has not been filed, according to court records. Jeffrey S. Weintraub of Hicks & Weintraub PC in Rockville, Dorsey’s lawyer, said a trial date has not been scheduled.