Documents show Ferrell settlement would have been kept secret
Jefferson City, MO – Although Gov. Matt Blunt says there was no effort to be secretive, a proposed settlement of sexual harassment and discrimination allegations against a Cabinet official would have required that the details remain confidential.
The Department of Agriculture released a series of e-mails, letters and settlement proposals Monday revealing the unsuccessful efforts to quietly resolve complaints against director Fred Ferrell. Several of the documents, provided under an open-records request by The Associated Press, refer to confidentiality clauses.
An attorney for former department employee Heather Elder said Monday that the insistence on secretiveness was the primary reason her client did not sign any agreement.
Elder sued the state Feb. 23, revealing publicly for the first time her allegations that Ferrell had groped her with hugs, kissed her on the cheek, suggested he would like to see her in a wet T-shirt contest and implied women should not be in leadership roles.
Blunt had reinstated Ferrell from a paid leave after receiving an internal investigation report on the allegations last May. His administration released copies of that previously secret report on Feb. 23 and Blunt forced Ferrell to resign three days later.
Asked last week why the details about sexual harassment were kept secret so long, Blunt said he had believed "we'd resolve the matter in a way that satisfied the offended employee." When that failed, Ferrell had to go, he said.
"When settlements occur they're public, and we, of course, believed that it would be," Blunt said last Wednesday. "There was no effort to keep anything secret."
Missouri's open-records statute, known as the Sunshine Law, requires settlement agreements involving the government to be made public when the involved parties agree to them. But that doesn't automatically mean the underlying allegations are made public.
Drafts of the settlement documents, for example, refer to only general claims of discrimination that would have been resolved through the payment of $70,000 to Elder, $12,500 to her attorney and $2,000 to a mediator.
A draft "memorandum of agreement" sent Nov. 17 by Ferrell's private attorney, Dale Doerhoff, to attorneys for Elder and the Agriculture Department apparently would have prohibited the release of anything else.
It stated: "The parties agree that this settlement is and will remain confidential and that all documents related thereto will also remain confidential and protected from disclosure to third parties as a personnel matter."
Doerhoff said Monday that the confidentiality requirement was standard language in private-sector employment settlements and that no one had directed him to include it in the proposal for covering Elder and Ferrell.
Another settlement draft from December referenced in Elder's lawsuit also included a requirement that "the nature and terms of this agreement, as well as the alleged facts circumstances and/or events that underlie and give rise to the agreement are confidential and shall not be disclosed by Elder at any time ... unless required by law."
The Agriculture Department was represented by Department of Natural Resources attorney Kurt Schaefer, whom Blunt appointed to handle the allegations against Ferrell.
Schaefer said Monday that the phrase "unless required by law" would have fulfilled the Sunshine Law obligation to release the settlement agreement.
The purpose of the confidentiality requirement was "to dissuade any party from acting in bad faith to abuse information about anyone else's personnel records they learn in the process of mediation," Schaefer said.
Blunt spokeswoman Jessica Robinson said Monday that "we had no expectation that (the details of the alleged harassment) would not be public."
After alleging harassment, Elder was placed on paid leave in August for alleged misuse of a state computer a claim she denies.
Schaefer asserts in a Feb. 15 letter to Elder's attorney, Carla Holste, that Elder wanted and had agreed to the confidentiality clause "because she was apparently concerned about the sexually explicit and inappropriate material she had on her state computer."
All parties have declined to release further details of Elder's alleged computer use, though Blunt spokesman Rich Chrismer said Monday that the administration would be willing to do so if given approval by Elder.
In a response to Schaefer Feb. 16, Holste wrote that the Sunshine Law prohibits confidential settlements and questioned whether the department was threatening to disclose Elder's closed personnel records.
Holste said Monday that the confidentiality clause "was the primary barrier to us having an agreement."
"It was just pretty clear they didn't want anybody to know about it," Holste said.
The documents released Monday show Holste submitted a counter proposal on Jan. 11 which while settling discrimination claims would have preserved Elder's right to sue under the Sunshine Law and to allege legal violations during the investigation of Elder's complaint to governor's office.
That document also included language stating "the nature and terms of this agreement are confidential and shall not be disclosed by Elder ... unless required by law."
Ferrell and interim department director Matt Boatright signed the settlement last Wednesday. But Elder has not.
Holste said Monday that the department had initially rejected her proposal in January and "we're no longer offering that."
Schaefer acknowledged he had originally raised issues about Holste's proposal but contends it was never rejected, never officially withdrawn and should still be valid.