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Monday, August 27, 2018

New Publication Requirements for Severance Agreements

In January, we reported on HB 4242 that would amend FOIA to require units of local government  to publish notice within 72 hours of approving a severance agreement involving the payment of money to a government employee or contractor accused of sexual harassment or sexual discrimination. 

Last week, HB 4242 was enacted into law as P.A. 1040, with an effective date of August 23, 2018. The approved version of this legislation is changed from what was originally introduced and reported on by Municipal Minute.  We have included a summary of the law in the form enacted below.

As enacted, the law requires the local government to (1) post notice on the government's website and (2) make available to the news media for inspection and copying the following information about the severance agreement and payment within 72 hours of approving the severance agreement:
  1. the name and title of the person receiving the payment;
  2. the amount of the payment; and
  3. that the person receiving payment has been found to have engaged in sexual harassment or sexual discrimination (the original bill only required accusation of this conduct); and
  4. the date, time, and location of the meeting at which the separation or severance agreement was approved.
The new requirements are incorporated into the Local Records Act, the statute that governs records retention and preservation by local governments. (The earlier version of the bill would have amended Freedom of Information Act.) 

Also new in the enacted version are certain exceptions that allow the local government to withhold the information if disclosure would:

1. interfere with pending or actually and reasonably contemplated law enforcement proceedings;
2. interfere with pending or actually and reasonably contemplated legal or administrative proceedings initiated by the complainant;
3. result in disclosure of the complainant's identity (unless he or she consents); or
4. endanger the life or physical safety of the complainant.

The law states that the law does not supersede confidentiality provisions of the severance agreement but also does not limit disclosure of records required to be disclosed under FOIA. It's not clear how these two provisions work in the context of the remainder of this statute or even with each other.

Any local government approving a severance agreement that falls within this new law would be advised to consult with its attorney to ensure compliance with these new requirements, whether that means disclosure of the required information or determination that one of the exceptions apply.


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