Gibbons office refuses to release internal sexual harassment report, saying AG order non-binding

By Record News | Nov 5, 2018


Gibbons  

EDWARDSVILLE – State’s Attorney Tom Gibbons rejected a request from the office of Attorney General  Lisa Madigan for public access to records from an investigation into sexual harassment in his office.

Gibbons assistant Jeffrey Ezra denied access to former secretary Andrew Kane on Nov. 2, writing that the request wasn’t binding and had no legal effect.

“The opinion is advisory only,” Ezra wrote. 

Kane asked for the records in February, as possible evidence for a suit he brought against the county and the state’s attorney’s office in U.S. district court.

He claims former office administrator Kevin Hendricks retaliated against him.

Gibbons denied Kane’s request in March, and Kane turned to Madigan’s office.

Deputy chief of public access Joshua Jones asked Gibbons to provide the records for confidential review, and Gibbons denied it on May 15.

In response, Kane sent Jones a settlement agreement showing the name of the complainant and the nature of her complaint.

Jones asked for records again on May 17, and Gibbons complied on June 8.

Jones sent Gibbons a letter on Oct. 16, advising him that Kane’s personal interest and the public interest both required disclosure.

Jones wrote that legitimate interest in how the office investigated and managed allegations outweighed privacy interests.

He specifically opposed privacy for Hendricks, writing that the information bears on his public duties.

He advised Gibbons to redact names and salacious content, writing that the details weren’t particularly graphic.

On Oct. 26, Kane repeated his original request for reports concerning harassment allegations by employee Kelly Babillis against Hendricks.

He wrote that the attorney general’s office ordered release.

“It is undisputed that materials requested are public record and therefore must be produced under Freedom of Information Act,” Kane wrote. 

Ezra disputed it.

He cited a Fourth District decision that an advisory opinion issued to a public body shall not be considered a final decision by the attorney general.

“Your request is further denied for all of the reasons included within the prior denials for the exact same materials,” Ezra wrote. 

U.S. Magistrate Judge Stephen Williams currently presides over Kane’s suit. 

Chief District Judge Michael Reagan, however, presided from the start and set trial this Oct. 15, but Gibbons moved in May to continue it due to schedule conflicts.

Reagan denied the motion and suggested the parties proceed before Williams.

He hasn’t set trial but he set it up on Oct. 30, when he denied a motion from the county for summary judgment on retaliation.

Williams found evidence that after Kane made internal complaints and filed a claim with the state human rights department, defendants had a drawn out battle over the disciplinary proceedings, did not return him to work after an arbitrator’s decision, and forced his union to compel his reinstatement.

He found issues of fact as to whether the conditions Kane was subjected to after he returned to work were sufficiently adverse.

Williams wrote that Kane received no pay or health insurance while he wasn’t working, although he was later awarded back pay.

He wrote that a jury could find these actions constituted animus and retaliation, especially when viewed as a whole.

He wrote that a jury could find the actions of a type that would deter a reasonable person from engaging in protected conduct.

He further wrote that there are other explanations for the conduct of defendants, and that it is up to a jury to sort out their motives.

Although Williams found Kane’s retaliation claim worthy of trial, he granted summary judgment to the county on a discrimination claim.

He found concrete evidence demonstrating that Kane’s termination was based on his conduct and comments rather than his gender.

He wrote that while the human rights department found evidence of harassment, it wasn’t sufficient to show that the disciplinary proceedings were pretextual.

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