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Brittney Heitman says she just wants to speak.
In a way, the Cincinnati woman already is speaking, though not directly; you can see her in the web ad here, although she never says a word. Attorneys who represent her, and U.S. Rep. Steve Chabot, an incumbent Republican from Cincinnati, all say that Heitman can’t say what she really wants to say -- and what the public needs to hear -- because her old boss, Hamilton County Clerk of Courts Aftab Pureval, silenced her.
Not only that, but "Aftab Pureval abused the powers of his elected office to silence her," the Chabot’s reelection campaign web ad says. The Chabot ad targets Pureval because the court clerk is challenging Chabot for reelection to Congress
Abuse of power? A politician trying to muzzle criticism? This has constitutional implications. But we have a question first: Is the claim that he abused the powers of his office to do so accurate?
We interviewed the principals or their representatives, sought outside views and looked at how these matters are handled elsewhere.
Some of the procedures Pureval followed were definitely different from normal county practice, but whether he violated policy or law -- and he says he didn’t -- would be up to a court to decide. So we will not put this statement on the Truth-O-Meter.
Heitman, 29, was an office manager in the clerk’s office, hired by a Republican who preceded Pureval. When Pureval, a Democrat and former attorney at Procter & Gamble, ran for clerk in 2016, he said he wanted to change the way the clerk’s office operated. He said he wanted to make it more efficient, to use more technology, and to be run more professionally, without the old patronage system. This was the platform on which he ran, said Sarah Topy, who managed the campaign for clerk and now is manager of his congressional campaign.
Pureval won. Soon after taking office in January 2017, he told more than a dozen employees they would be let go but would get severance. He asked them to sign separation agreements, with language saying they would not sue or take legal action as a result of their terminations. Within those agreements were two key clauses that matter for purposes of understanding Chabot’s claim:
Neither party to the agreement would disparage the other. This is known as a non-disparagement clause. "Neither employer nor employee shall make any statements to third parties which are disparaging, derogatory or negative about one another," this clause reads. If asked by a third party about the departure, "they will state only that the employer decided to make a change in leadership."
Departing employees who agreed to the terms would be paid severance.
There was no legal obligation to sign, and failure or refusal to sign would not necessarily save one’s job. Signing, however, would assure payment of severance. Employees were told they could have the agreement reviewed by an attorney if they chose to get one.
Heitman was told in writing on Feb. 17, 2017, that she was being "relieved" of her duties, and she signed the agreement on Feb. 28. She was to be paid $4,808, or eight weeks worth of pay, after she left. According to one of her attorneys, Brian Shrive, Heitman then was out of work for nearly six months and lacked income and health coverage before being hired by the county’s facilities department.
In the ad for Chabot, Heitman appears on camera while an announcer makes the point:
"Brittney is a single mom who would do anything for her kids.
"She works hard to provide for them.
"For years she worked in the clerk’s office and had just received a promotion.
"Then, Aftab Pureval came into power and her world was turned upside down.
"Aftab fired Brittney without cause, leaving her with no health care and no way to support her family.
"Brittney would like to tell her story, but she can’t. Because Aftab Pureval abused the powers of his elected office to silence her."
Was this an abuse of Pureval’s powers? Pureval’s campaign, as well as the chief legal officer in the clerk’s office, said the court clerk did absolutely nothing improper. Randy Freking, a longtime private-practice employment lawyer who advised Pureval on the separation agreements, said non-disparagement clauses are "so typical in public employment and private employment."
But the way Pureval handled the matter was different, several other people, including those from other county offices, said. Shrive cited several reasons.
First, Pureval started making plans for dismissals before he even entered office. Private attorneys joined his transition team without pay to provide advice. Freking told PolitiFact that he and another attorney, Brian Gillan, advised Pureval on how to draft the separation agreements because they normally represent employees in cases against employers and Pureval wanted their employee-focused perspective.
Topy, who was a member of the clerk’s transition team and later became manager of Pureval’s congressional campaign, said all this volunteer activity was nothing more than the clerk-elect getting ready for the job so he could do what he promised voters.
After Pureval took office and began the dismissals, some terminated employees had questions or asked for changes in their agreements. The clerk’s office shared these questions with the volunteer attorneys, who in return emails gave advice on suggested wording or said the requested changes were fine, emails obtained by Shrive under Ohio public records law show. Topy, also not a member of the clerk’s office, was included in some of the emails. This continued until early April 2017, four months into the new clerk’s term.
This meant Pureval, now a Hamilton County public official, bypassed the legal review system that other county public officials use, Shrive said. It is among the reasons Chabot said Pureval abused his office.
The Hamilton County prosecutor, not private attorneys working for free, usually provides legal advice for county offices. (See Ohio Revised Code 303.09.)
Julie Wilson, chief assistant county prosecutor and spokeswoman for the department, told PolitiFact that the prosecutor’s office was not consulted or asked to be involved in Pureval’s separation agreements. Wilson works for county prosecutor Joseph Deters, a Republican. Asked whether Pureval followed proper procedures for using legal counsel, Wilson only said in an email, "We were available to advise pursuant to the statute."
The statute allows for exceptions, however, although they typically involve authority to employ outside counsel and the requests go through county commissioners. The use of volunteers makes this different, said Christopher Wagner, the clerk’s chief of compliance -- the in-house lawyer, and himself a former prosecutor. That’s because the outside lawyers helping Pureval were not employed, paid or retained in the normal sense.
Freking and Gillan were volunteers, wrapping up loose ends from the transition. There was no need to go to the prosecutor, or to ask county commissioners to hire outside attorneys, said Topy and Wagner.
Topy said the private attorneys simply answered some questions and helped develop the templates used for the termination agreements. She said that while they subsequently answered some "one-off" questions that arose in individual circumstances, these were minor and did not involve any legal controversy.
As for legal authority for an officeholder to use volunteer attorneys, Wagner said Ohio statutes and case law make this somewhat unsettled, and he pointed to cases to make that point. Ohio officeholders have, in fact, hired outside counsel, and although disputes have arisen over their authority to do so, the nature of the attorneys’ work and their payment were elements of ensuing court decisions over their hiring authority. In Pureval’s case, the clerk used volunteers, continuing in a limited role work they had done in the transition.
"I don’t think it is so clear cut on an officeholder talking to or seeking the opinion of attorneys," Wagner said.
Another peculiar thing and sign of abuse, said Shrive and others, was the non-disparagement clause within the separation agreements. Non-disparagement clauses are common in the private sector, but Shrive said he knew of no other Hamilton County departments that used them. Shrive cited a Cincinnati news story in which other elected officials said they had never used a non-disparagement clause.
"No, and I know of no other office that has used it," County Auditor Dusty Rhodes, a Democrat, repeated to PolitiFact.
The head of personnel for the Hamilton County Board of Commissioners said the same.
"We have not used those kind of clauses in ours," Cheryl Keller, human resources director, told us.
Heitman could have simply refused to sign, Shrive acknowledges. But Pureval held all the power there.
"Yes, Ms. Heitman could have refused to sign the agreement and she would have had to have paid a lawyer to pursue a potential wrongful termination claim, which she may or may not have won," Shrive said. "But she was in a position of severe unequal bargaining power."
There is debate in First Amendment circles over whether any government agency should be able to tell ordinary employees -- those who don’t handle government secrets -- that they can’t say negative things about their current or former bosses or departments. Free-speech advocates say a government body should encourage free speech, not muzzle it, as a way to keep government open and honest. Heitman’s lawsuit says Pureval is in violation of the Ohio Constitution’s guarantee of free speech.
Patrick Kabat, a First Amendment attorney who has represented major media companies and is an adjunct professor at Cleveland State University's Cleveland–Marshall College of Law, told us the Heitman situation sounds like it could be a violation of the U.S. Constitution.
"Because this is the government, there are serious issues here," Kabat said.
But this -- the question of non-disparagement clauses as a violation of the First Amendment -- is unsettled, too. "A complicated question, I’m afraid, to which I don’t have a clear answer (and I’m not sure if anyone does)," Eugene Volokh, a UCLA law professor and expert on free speech, told us in an email.
In a case involving a nurse at a U.S. Department of Veterans Affairs facility in Seattle, the Equal Employment Opportunity Commission in 2016 said a gag in an employment-rights settlement -- one that specifically prohibited complaints or negative comments to the media or members of Congress -- limited the nurse’s First Amendment rights.
The U.S. Supreme Court ruled unanimously in favor of free speech in a 2014 case involving an Alabama community college employee. The ruling centered on his right to speak when subpoenaed to testify in court. Justice Sonia Sotomayor said in the ruling, "Almost 50 years ago, this court declared that citizens do not surrender their First Amendment rights by accepting public employment."
But court and administrative rulings have been particular to individual circumstances. Even the meaning of "disparage" may not be entirely clear legally. In an Ohio case somewhat similar to Heitman’s, a former employee was accused of breaching the agreement after leaving a voicemail with a third person in which he said his former direct supervisor was a "slimebag."
Is "slimebag" disparaging?
The Ohio 10th District Court of Appeals used a dictionary to help decide: "(a) despicable person, usually a male." Said the court decision: "This kind of trifling figure of speech is of so little consequence it cannot be said to be material and should be disregarded."
Correction, 11:45 a.m., Oct. 9, 2018: This story initially reported an old university affiliation for Patrick Kabat. It has been updated to reflect his current position at Cleveland State University.
"Silenced," Chabot for Congress adm Oct. 1, 2018
Telephone and email conversations with Cody Rizzuto, spokesman for Chabot campaign, Oct. 1-5, 2018
Telephone and email conversations with Sarah Topy, manager of Pureval campaign, Oct. 2-5, 2018
Telephone and email conversations with Brian Shrive, attorney for Brittney Heitman, Oct. 2, 2018
Heitman v. Pureval, filed Aug. 21, 2018
Clerk’s office termination letter and separation agreement with Brittney Heitman, Feb. 17, 2017
Emails obtained from clerk’s office by Brian Shrive concerning Aftab Pureval, employees, attorneys and severance agreements
Ohio Revised Code 309.09, Legal adviser - additional legal counsel
Ohio Revised Code 305.15, Employment of legal counsel
Telephone conversation with Randy Freking, Oct. 3, 2018
Email and telephone conversations with Chris Wagner, Oct. 4, 2018
Email and telephone conversations with Patrick Kabat, Oct. 3, 2018
Email exchange with Eugene Volokh, Oct, 3, 2018
Telephone conversations with Dusty Rhodes, Oct. 3, 2018
Telephone conversation with Cheryl Keller, Oct. 3, 2018
"New hires, more job cuts at clerk’s office," by Dan Horn, Cincinnati Enquirer, Feb. 18, 2017
"Exclusive: Clerk of court fires five more, says he’s saved $475K," by Chris Wetterich, Cincinnati Business Journal, March 31, 2017
"New clerk of court saves office $400k after 23 employees leave, and expands courthouse service," by Paula Christian, WCPO, April 17, 2017
"Prosecutor has never seen non-disparagement agreements in county," by Angenette Levy, WKRC, Aug. 23, 2018
Aurore v. Robert McDonald, EEOC, April 14, 2016
Lane vs. Franks, U.S. Supreme Court, June 19, 2014
Ohio Education Association v. Lopez, Ohio Court of Appeals, Tenth District, Oct. 19, 2010