We all want to know why Ann Cardon left TCAPS in a hurry, after a mere 78 days on the job as superintendent. We also know that the TCAPS board entered into a non-disclosure agreement with Cardon that in theory forbids her from talking about it. Is that agreement enforceable?
Is a non-disclosure/confidentiality agreement enforceable when one of the parties is a government agency settling a lawsuit?
No, a non-disclosure/confidentiality agreement is not enforceable when one of the parties is a government agency settling a lawsuit. Freedom of speech trumps any interest the government might have in keeping things on the down-low. The terms of government lawsuit settlements are public, per the U.S. Court of Appeals opinion Overbey v Mayor of Baltimore.
In Overbey v Mayor of Baltimore, the City of Baltimore settled with a woman on allegations of police misconduct. The settlement included a non-disclosure agreement. Then, the woman commented online about her case. The City of Baltimore withheld the payments that the woman was due under the settlement. The City of Baltimore said they were justified in doing so because she violated the non-disclosure agreement.
The court said that “strong public interests rooted in the First Amendment make it [the non-disclosure agreement] null and void.”
The court went on to say that settlements of lawsuits by a government body are a public issue. They said that the public should be able to have a “robust” debate about public issues. They also said that by creating the non-disclosure agreement, there was “no serious doubt that the government has used its power in an effort to curb speech not of its liking.” The court rejected an argument by the city that they had a right to curb negative publicity. There are lots of other good quotes in the legal opinion about the public’s right to gather information.
This is a new legal opinion, just issued in July 2019. The City of Baltimore did not appeal the case to the U.S. Supreme Court.
Can Ann Cardon talk about why she left TCAPS?
Magic 8 ball says yes. We’d all love to hear what she has to say.