If Applicant Signs A Release, Employer Allowed To Disclose Disciplinary Files

David Purdy was the deputy chief of police for the City of Kalamazoo, Michigan Department of Public Safety. Purdy’s work ended with the Department after the Chief prepared a negative employment evaluation for Purdy. The evaluation was never formally signed because the City and Purdy instead agreed to his eventual resignation in lieu of further evaluation or discipline. The agreement between Purdy and the City called for the City to provide a letter of recommendation and reference, and required the City to direct future employment inquiries to the Chief of Public Safety, who “shall upon receiving such contact, corroborate the statements made in the letters of recommendation.”

Purdy later applied for the police chief position in Rockford, Illinois. The City of Rockford offered Purdy the position predicated upon his passing a background examination to be conducted by the International Association of Chiefs of Police (IACP). The job offer was withdrawn after a Freedom of Information Act request by the IACP revealed the negative unofficial evaluation of Purdy by the Kalamazoo Chief.

Purdy then filed a federal court lawsuit, alleging that the City’s release of the evaluation was in retaliation for Purdy’s engaging in free speech and in retaliation for Purdy’s opposing unlawful and discriminatory employment practices. A federal court dismissed Purdy’s lawsuit, citing the releases he signed when he applied for the City of Rockford Chief’s job.

Both of the releases Purdy signed contained language to the effect that Purdy “authorized contacted individuals and institutions to give IACP any and all information concerning my previous employment and any other pertinent information they may have, personal or otherwise, and release all parties from all liability for any damage that may result from furnishing such information.”

The Court found that “the present record does not provide any basis for questioning the validity of the releases signed by Purdy. Purdy was and is a sophisticated applicant for a police chief position with extensive experience in public police administration. Purdy was presented the release as part of an arm’s length hiring process, and had the opportunity to consult counsel, whether or not he chose to do so. The waiver language was broad and clear in its import. Purdy had received significant consideration for approving the releases – the use of IACP’s background investigation services in connection with his potential future employment. Broad language of the kind in the releases covered all of the defendants in this lawsuit for any potential liability for damages resulting from the disclosure of the negative information.”

Purdy v. City of Kalamazoo, 2008 WL 2714233 (W.D.Mich. 2008).

This article appears in the September 2008 issue