An ongoing lawsuit filed nearly three years ago by Georgetown police officers against the town and department higher-ups has officials considering legislation which would prohibit secret recordings.

An ongoing lawsuit filed nearly three years ago by Georgetown police officers against the town and department higher-ups has officials considering legislation which would prohibit secret recordings.

At the Georgetown Town Council's Oct. 23 meeting, the first reading was conducted of an ordinance that prohibits town employees from "intentionally secretly [recording] electronically any conversations with coworkers or supervisors or management of the Town of Georgetown, except to conduct an investigation performed by a legitimate law enforcement agency."

In a prepared statement, Town Manager Gene Dvornick said the issue of secret recordings came to light in the pending Superior Court litigation, Brittingham/Story v. Topping/Town of Georgetown.

"In response to discovery sent by the town to the plaintiffs, it was disclosed that one of the plaintiffs had made extensive covert recordings of coworkers and others, in and out of the workplace, over a period of about a year and a half," Dvornick said. "The police department has already enacted a directive almost identical to the proposed ordinance. The town thought it prudent to extend this policy against secret recordings in the workplace to all town employees."

The complaint

Shawn Brittingham, formerly of the Georgetown Police Department, and PFC Christopher Story, still employed by the department, are two of four officers that filed suit on Jan. 4, 2011 against the town, Chief William Topping and Capt. Ralph Holm. According to court documents, the former plaintiffs are Bradley Cordrey and Lester Shaffer, who have been dismissed from the proceedings. A roster of police officers on the Georgetown Police Department's website indicates Cordrey is still employed by the department.

The complaint alleges that over a period of time and with an increasing frequency, Topping and Holm "engaged in a course of conduct directed at [the plaintiffs and others] which was hostile to the work environment within the police department."

The complaint states that seven police officers "attempting to address legitimate grievances associated with the police department through the chain of command and with … Topping and Holm, and receiving no relief, attended a meeting at the home of a Town Council person."

Court documents state that councilperson was Sue Barlow, whose two sons, Michael and Matthew Barlow, were Georgetown police officers. Matthew Barlow is still employed by the department.

"At the meeting, many of the issues causing concern to the officers were raised," the complaint states.

Court documents state Topping and Holm found out about the meeting and an Internal Affairs/Professional Standards investigation ensued. Following the investigation, as well as a subsequent hearing before the state's Criminal Justice Council, the plaintiffs were punished.

The plaintiffs allege the investigation and punishment violated the Law Enforcement Officers' Bill of Rights, as well as the plaintiffs' First Amendment right to free speech. The complaint also alleges Topping and Holm discussed these personnel matters with others, making statements that were false, defamatory and slanderous, including referring to the meeting participants as "the Back Stabbing Seven."

The officers are seeking compensatory and punitive damages, as well as attorneys' fees. In a statement filed the same day as the suit, Bruce Rogers, the officers' attorney, states "the sum of damages … is in excess of $100,000 exclusive of costs and interest."

A five-day jury trial is scheduled for Aug. 4, 2014; however court proceedings have been ongoing, and it has been discovered that one of the plaintiffs secretly recorded conversations. Dvornick did not identify which plaintiff is believed to have recorded the conversations or which conversations were recorded.

Council consideration

During discussion of the ordinance, Councilman Bill West voiced his staunch opposition to the measure.

"To me, this stinks," West said. "I think we're opening up a can of worms. It's going to cause people to look at us and say, 'What is Georgetown doing passing something like this?'"

West said state law permits an individual to protect themselves by recording their conversations with others, and he's right.

Delaware's wiretapping and surveillance laws, according to the state code, require at least one party's consent to record both in-person conversations and electronic communications. That means an individual can record their own conversations without informing the other involved parties. In some states, a conversation cannot be recorded unless the consent is acquired of at least two, or in some cases all involved parties.

Town Solicitor Stephani J. Ballard said Georgetown has the right to pass the secret recordings measure.

"There are all kinds of restrictions workplaces place on their employees that don't apply to a person walking down the street," Ballard said.

The measure is on its way to a second reading and a vote at the Nov. 6 regular meeting, pending some language changes to specify an elected official's role in the measure, as well as the allowance of an employee to conduct secret recordings when directed by law enforcement agencies.