Wednesday, August 2, 2017

El Paso County pays to settle sexual harassment and retaliation claim but won't say to whom

Posted By on Wed, Aug 2, 2017 at 3:11 PM

Sheriff Bill Elder's department received a claim of sexual harassment; the county paid the victim to keep quiet. - COURTESY SHERIFF'S OFFICE
  • Courtesy Sheriff's Office
  • Sheriff Bill Elder's department received a claim of sexual harassment; the county paid the victim to keep quiet.
El Paso County's Board of County Commissioners on July 25 approved a $67,983 settlement with a woman who alleged she was sexually harassed and retaliated against in the Sheriff's Office, and now the county won't say who got most of the settlement money.

And that might not be legal.

The item appeared on the BOCC's consent calendar, a catalog of items that normally enjoys quick approval with no public comment and no commissioner discussion.

The item settled an EEOC complaint leveled against the Sheriff's Office on April 18, 2017, from a female who alleged sexual harassment and retaliation. No details of the claim itself were released.

The settlement agreement specifies the "releasor," the female who filed the complaint, will be paid $47,556.60, and the law firm of Cornish & Dell'Olio will be paid $23,381.40.

The "releasor" also will receive reinstatement of 80 hours of vacation time, paid time off from June 23, 2017, until the agreement was approved, and the county's promise it won't contest any unemployment claims sought by the "releasor."

The woman also agreed to keep her mouth shut about the whole matter. From the agreement: "RELEASOR agrees that she will not discuss this matter with any EPSO [El Paso County Sheriff's Office] employee or former employees from this date forward."

click to enlarge sheriff_badge.png
In exchange, the county agreed that "any further matters related to claimant will cease." The county also agreed not to say bad things about the woman or reveal details of the agreement.

The agreement also notes that none of the payout is associated with her "separation from employment," so one might rightfully presume the woman no longer works for the sheriff.

Another clause in the agreement states the money "is not to be construed in any way as an admission of liability on the part of [the county and sheriff's office]" who "expressly deny legal liability for any alleged economic and non-economic damages, and affirmatively asserts that this Agreement is entered for the sole purpose of avoiding extraordinary costs of litigation, which could greatly exceed the sums proffered by and accepted in this Agreement."

County spokesman Dave Rose says via email:
This settlement results from a Title IX EEOC complaint by an employee of the El Paso County Sheriff’s Office. Upon notification of the complaint, EPSO turned the matter over for an investigation by El Paso County. This is the process adopted by Sheriff Elder to take such complaints out of that Office and it is the same process that is followed by all County Departments and Offices to assure that these employment related complaints are investigated fairly and thoroughly.
He further cited a section of the Colorado Open Records Act that mandates denial of access to records:
...of sexual harassment complaints and investigations, whether or not such records are maintained as part of a personnel file; except that, an administrative agency investigating the complaint may, upon a showing of necessity to the custodian of records, gain access to information necessary to the investigation of such a complaint. This sub-subparagraph (A) shall not apply to records of sexual harassment complaints and investigations that are included in court files and records of court proceedings. Disclosure of all or a part of any records of sexual harassment complaints and investigations to the person in interest is permissible to the extent that the disclosure can be made without permitting the identification, as a result of the disclosure, of any individual involved. This sub-subparagraph (A) shall not preclude disclosure of all or part of the results of an investigation of the general employment policies and procedures of an agency, office, department, or division, to the extent that the disclosure can be made without permitting the identification, as a result of the disclosure, of any individual involved.
Luis Toro, executive director of Colorado Ethics Watch, notes via email the settlement itself "isn't a record of a sexual harassment complaint or investigation." He acknowledges, however, that there doesn't seem to have been a legal case surrounding use of this exemption to hide the identify of the recipient of public funds.

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, reviewed the settlement document and reports in an email, "A settlement agreement in which the county agrees to pay an individual a certain sum of money is not the type of record described in the CORA exemption they cited. That exemption pertains to records of sexual harassment complaints and investigations."

Although the county refused to name the individuals accused of sexual harassment and retaliation, a website that carries a lot of information about Sheriff Bill Elder reported this about the settlement.

Here's a copy of the settlement agreement:
We've asked for Internal Affairs files regarding the incident that gave rise to the claim and will circle back if and when we receive anything, but that's unlikely, because the Sheriff's Office in recent years has denied releasing any IA files.

We've also asked county officials for information about any other settlements approved by commissioners with unidentified recipients and will report back if and when we hear something.



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