|By Joy Campbell, Messenger-Inquirer, Owensboro, Ky.|
|McClatchy-Tribune Information Services|
These records are part of a lawsuit that is nearly five years old, which involved the ouster of Gastenveld, who sued the college, several high profile administrators and community leaders, as well as elected officials.
Fiorella is OCTC's vice president for workforce and economic development. She and the
A big part of the lawsuit centered on the declining relationship between Gastenveld and two OCTC vice presidents -- Fiorella and
The relationship between Gastenveld, Fiorella and Beardmore went downhill, however, with records showing how the dispute played out both publicly and privately.
Gastenveld placed Fiorella under a Performance Improvement Plan. Fiorella claimed allegations in her evaluation were unfounded. She formally appealed them and initiated a Conflict Resolution Procedure through KCTCS.
Beardmore and Fiorella led a charge to chronicle what they said were examples of why Gastenveld was not fit to be the college's president. Their document, "Qualifications for the Presidency of
Gastenveld settled her claims before trial and received a total of
The recent ruling by the court of appeals brings the case to a conclusion and is important for maintaining transparency in public agencies, said Messenger-Inquirer attorney
"This decision confirms that public access to records filed with the courts continues to be the expected standard," Rogers said. "For a variety of reasons, litigants and lawyers sometimes attempt to keep the public from having access to court records when there is no good reason for it and where there is no proper court order to seal court records. Hopefully, this decision will help to curb that practice in the future so that our court system will remain transparent, which is a good thing for all of us."
Records were never protected
From the get-go, KCTCS President McCall declined to say why he reassigned Gastenveld, and others involved in the case declined to talk about it.
The Messenger-Inquirer sought access to records that attorneys for Fiorella and Gastenveld agreed to seal during the deposition stage of the trial, citing the public's right of access as it related to the First Amendment and the common law.
The circuit court ruled in favor of the newspaper to unseal the records, agreeing that it had a common law right to access the documents. Even after all the claims in the Gastenveld case were settled, the circuit court determined that the case involving the sealed records in the deposition was not moot.
After hearing more arguments, the circuit court ruled
Fiorella then appealed to the
Fiorella said in her appeal that she wanted to seal some of her testimony and documents that were submitted in fear that the public would take them out of context and that they would portray an inaccurate image of her. She said she would not have the ability to refute the information.
Last week, the newspaper gave Fiorella an opportunity to refute any information, but she declined. Instead, she submitted an emailed statement.
The documents, she said, were evidence Gastenveld gathered to support her lawsuit.
"The lawsuit has long since been settled by the system's insurance carrier. Gastenveld's allegations in the documents regarding my job performance represent the opinion of an individual no longer employed by KCTCS. Her allegations have never adversely impacted my employment or position with the college," Fiorella wrote.
She said that "further revisiting allegations made in 2008 can only detract from the important work at hand."
She did not say in her statement why she continued to fight to keep the allegations away from the public.
According to court records, the parties in the case agreed to seal certain records, and they were placed in envelopes, taped shut and stamped "Confidential" in several places.
The court of appeals ruled that it could not conclude that the circuit court abused its discretion in permitting public access to the documents. It further ruled that Fiorella failed to identify a reason for keeping the records from the public "that was so compelling that we must overcome our deference to the circuit court's control of its own records and disturb the order on appeal."
The appeals court also said the Messenger-Inquirer should have had access to the records all along since Fiorella did not ask the court for a protective order to seal the deposition. "It was a mere illusion that the Messenger-Inquirer did not have access to the deposition," the ruling states.
The ruling also notes that much of the information Fiorella asked to keep away from the public already was made public either in other discovery materials that she did not ask to be sealed or in other parts of her testimony.
What records did the attorneys seal?
The following information was included in the sealed Fiorella records obtained by the Messenger-Inquirer:
--A copy of Fiorella's evaluation with a handwritten date of
"She must learn to conduct herself professionally with her staff and in the community," Gastenveld wrote in the evaluation summary. "She is a member of the president's most vital and trusted staff and as such must refrain from making negative comments to the community and staff. Cindy's statements to her staff and to the community members have been detrimental to OCTC. She must recognize (and act accordingly) that she does not need to criticize a person, initiative, or an organization in order to make her team and accomplishments look good."
Gastenveld went on to say she was disappointed and appalled at Fiorella's behavior "in the form of gossip, innuendos and inaccuracies about me both professionally and personally, and about the college."
Gastenveld's handwritten notes indicate that she wrote them during a meeting at which Fiorella was supposed to sign the document.
Fiorella denied any knowledge about negative comments to the community or her staff, according to the notes. She did not sign her evaluation then. She asked to take it with her, to be able to reflect upon it, and return it later.
--Copy of emails to and from Fiorella and
During the deposition, Gastenveld's attorney
--Parts of Fiorella's deposition testimony under questioning by Miller. Fiorella confirms that Gastenveld told her that she was going to give her an "ME" rating (Met and Frequently Exceeded Job Requirements) which is the second highest rating. Fiorella said Gastenveld confirmed that she was not giving her the top rating because she believed Fiorella had talked negatively about her in the community. Fiorella said in her department head role she had probably always received "EE" ratings (Consistently Exceeded Expectations of Job Requirements). She said in her tenure with OCTC she had never received below an "ME" rating.
Fiorella testified that in her first evaluation meeting, Gastenveld told her which rating she would receive, but Gastenveld had not filled in comments on the evaluation. When Fiorella came back to sign it, she was distressed to see the written comments, she said. Miller also asked Fiorella about a meeting with Gastenveld in which the president told Fiorella that she must refrain from making negative comments to the community and staff. She said that Gastenveld did say that in a later meeting, but not in the first session in which her rating was discussed.
--Deposition testimony about meetings on
In this meeting, the parties discussed concerns Fiorella had with her evaluation. Attorneys for Fiorella and Gastenveld agreed to "protect" the information. Amato further suggested, and Miller agreed, that when they get the transcript, they could "go back and look and say, 'Oh, there is something that should have been protected.' "
Fiorella said they discussed at length her concerns related to comments Gastenveld wrote on Fiorella's evaluation.
Fiorella testified that she was not aware of KCTCS representatives talking to anyone other than Gastenveld and her about the complaint.
--Minutes of the
--Minutes of a meeting that included Fiorella, Gastenveld and
--Copy of notes from
--Copies of emails from Fiorella to
--A letter from Gastenveld to Fiorella with Fiorella's Performance Improvement Plan and marked via hand-delivery and email and dated
--Emails from January to
--A six-page letter from Fiorella to McCall dated
Messenger-Inquirer Executive Editor
"We spent nearly five years and tens of thousands of dollars on this case, because public officials have to know that they don't get to pick and choose what local residents can and can't know about their operations," Francis said. "Here we had a college president abruptly removed from her position, and how everything went down cost taxpayers hundreds of thousands of dollars. To suggest that the public has no right to know why and how this happened is the height of arrogance. This court ruling, and others throughout the case, have made it clear that efforts to keep the public in the dark are against the law, and we'll continue to fight to make sure those laws are followed."
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