It looks like there are two confidentiality/non-disparaging agreements at play in the TCAPS leadership debacle. The first, which we knew about, was the confidentiality agreement between Ann Cardon and the TCAPS board. But it looks like before the board entered into closed session to finalize Cardon’s ouster, Kelly made them all sit around for half an hour before she and other TCAPS leadership shoved a different confidentiality/non-disparaging agreement in Erica Moon-Mohr’s face. That agreement was about the meeting itself. Not missing a punch, Kelly threatened Moon-Mohr with prosecution if Moon-Mohr dared say anything critical of Kelly or TCAPS after the meeting.
Now, Kelly is using those confidentiality agreements in order to argue that she can’t be subject to a recall petition. Since she can’t talk about what’s behind the confidentiality agreements, she says, she can’t be recalled for anything having to do with Ann Cardon’s ouster. Before you dismiss the argument as absurd, keep in mind that 13th Circuit Court Judge and fellow Republican Kevin Elsenheimer listened to the entire argument and managed to keep a straight face. Should we be worried?
Okay, let’s start with the confidentiality agreement/non-disclosure agreement about the closed session itself.
A confidentiality/non-disparagement agreement is a contract. A contract is void if there is no consideration for the contract. Here’s a source for you to read on that. In other words, you can’t just shove a document in Moon-Mohr’s face, tell her she better sign it, and not give her the proverbial mustard seed for it. You could have given her a cookie, Sue. You should have given her a cookie. But you didn’t. No cookie. No mustard seed, no consideration, no contract. And no, threatening someone with avoiding their own prosecution is not consideration.
So the confidentiality agreement about the meeting itself has just as much sustainability as Paul Soma’s plan to count students at .75 of full time for weekly Michael Jackson moonwalking classes. If this was the work of TCAPS-attorney Jeffrey Butler, taxpayers should take issue with the fact that TCAPS is paying legal bills to help one board member subvert the public process and public discourse (on top of everything else that there is to take umbrage with, of course.) So the confidentiality agreement about the meeting is out the window.
Now the other confidentiality agreement with Ann Cardon.
We already talked in detail about how the Ann Cardon separation agreement is void because it is against public policy. In other words, the public has a right to know what its government is doing. Government officials can’t contract away accountability and the public’s right to be involved in their own affairs. I still stand behind my prior opinion that the Ann Cardon separation agreement is null and void because it violates the public’s right to know.
I’m sure you all are looking for a Sunday School answer, where the exact question has been answered before: Can a public official create a non-disclosure agreement that concerns public affairs and then use it in order to void a public recall effort against them? It’d be nice if there was a previous answer to that question. But since Sue Kelly invented that particular question, we have to dig a little bit deeper and look at similar and related issues and make analogies.
First, let’s compare the situation to a lawyer revealing attorney-client secrets. Michigan Rules of Professional Conduct 1.6 allows a lawyer to reveal attorney-client privilege when necessary to fight allegations of misconduct. So if Kelly were a lawyer, and a client accused her of any kind of “wrongful conduct,” she could violate confidentiality rules to talk about it. Also, attorney-client privilege belongs to the client, not the attorney. If the client wants to blab about what they say to their attorney, they’re free to talk to whomever they please. Attorney-client privilege exists for the client’s benefit, not Jeffrey Butler’s.
Next, a non-disclosure agreement is generally unenforceable if it interferes with the legal process. In other words, you sign a non-disclosure agreement, and then you’re issued a subpoena to testify in court about it, you can’t get out of testifying by waving around the non-disclosure agreement. Information can be withheld to the extent that it would require the disclosure of closely-held trade secrets, but TCAPS isn’t Apple trying to keep the iphone design a secret. Nearly all non-disclosure agreements openly state the “except as required by law” exception, but it doesn’t matter that Jeffrey Butler didn’t put that in, because that’s the law on it anyways. Here are some sources, sources, sources, for those of you who like that kind of thing.
To summarize, the confidentiality agreements are TCRAPS to begin with. They are not enforceable because TCAPS is a public body and the public has the right to know. Second, the one specifically threatening Moon-Mohr is not enforceable because Moon-Mohr didn’t get anything for signing it. Third, Sue Kelly can mouth off as much as she wants about anything in order to defend herself against the recall petition. We’d all love to hear it, so let’s hear it Sue Kelly. Tell us everything.