Colonie has settled out-of-court with the second former town paramedic who brought a federal suit against the town for using manufactured subpoenas to obtain their personal e-mail account information.
Hugh Skerker, 48, will be awarded $225,000 as part of the settlement made Thursday, Jan. 18, in U.S. District Court.
Skerker and former paramedic William Gardner, who was awarded $21,000 last year, were identified as the holders of source accounts of anonymous e-mails sent to the town in 2003 that alleged continued mismanagement and misconduct at the hands of several employees of the town’s Department of Emergency Medical Services.
Skerker claimed in his suit that the town violated his federal and state constitutional rights when it used illegal subpoenas to identify him as one of the whistleblowers and then suspend him. Gardner, 55, was subsequently fired.
The town has contended that a mistake was made on behalf of the town attorney’s office when officials used the wrong form as part of an inquiry into potential patient privacy violations under the Health Insurance Portability and Accountability Act (HIPAA) within the e-mails. Depositions show the move to use criminal subpoenas to obtain the account information from Time Warner/Road Runner was made after Colonie police informed officials that the content of the messages was not criminal.
Officials contend that the subpoenas were acted upon neither in malice nor ill-intent, as Skerker argued in his case.
Regardless of the claims, Town Attorney Arnis Zilgme apologized to town board members before a Thursday, Jan. 18, meeting for the outcome of the suit.
He and Senior Attorney Michelle U. Mercadante signed off on the subpoenas.
I apologize for the mistake that was made. It was a mistake at the department head, so it’s on my shoulders, said Zilgme. `It was not done with ill-intent. We who try to keep you out of trouble got you in it, front and center.`
Zilgme stated that he still believes the content of the e-mails to be in violation of federal HIPAA regulations.
Latham resident Ken Champagne called for Zilgme’s resignation at the meeting following his apology. Zilgme said he intends to remain at his post.
The town response to the settlement has triggered feedback from Gardner and the attorney who represented Skerker and Gardner, Kevin Luibrand.
`The settlement speaks volumes about the violations of the town by way of Hugh Skerker and Bill Gardner’s rights. What the town did, no one can characterize as a mistake. No excuse that has been offered up has any validity,` said Luibrand.
The $225,000 settlement covers Skerker’s legal expenses.
The town sent `phony criminal subpoenas` in order to get Time Warner to comply with a `phony criminal investigation,` Luibrand added. From the beginning, the issuance of the documents never made mention of HIPAA violations, and they intentionally evaded judicial overview by having the results of the subpoenas sent directly to the town attorney’s office rather than town court, he said.
`They committed crimes,` said Gardner. `In the depositions, they admit their guilt. Arnis, Michelle and (Joyce) Tarantino (the town’s human resource director) should be fired, not resign. And after (Town Supervisor) Mary (Brizzell) fires them, she should resign.`
Gardner plans to file a formal complaint with the state Bar Association seeking to have the lawyers disbarred. He also plans to continue to call for the Albany County District Attorney’s Office to begin a criminal investigation of the town’s actions, he said. After more than two years of calling on the office, it has been unresponsive, he said.
Zilgme responded to Gardner’s call for District Attorney intervention by reminding town board members that members of the office had already spoken with town officials two and a half years ago, and `nothing came of it,` he said.
The $225,000 settlement will be covered by the town’s insurance policy and not have an impact on town services, according to Town Comptroller Ronald Caponera.
As part of the settlement, Skerker, who remains listed as a town employee, although he has not worked for the EMS department in more than a year, will resign as a town employee. He has also agreed to not seek a position with the town EMS department until 2012.“