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Attorney for Does in CYS suit argues litigation to proceed

By Susy Kelly skelly@heraldstandard.Com 4 min read

The attorney representing a Fayette County woman and her daughter in a federal breach of confidentiality lawsuit argued in a motion filed Wednesday that the county and two commissioners should be held liable in part because they failed to have a policy in place to prevent the dissemination of private information.

“In lieu of policies which check commissioners’ ability to communicate certain information, we are left with a group of the highest ranking officials in Fayette County who disseminate information, including Jane Doe 2’s sexual abuse information, as they damn well please,” wrote attorney Benjamin Goodwin, who represents two Jane Does in the suit against the county and Commissioners Vincent Zapotosky and Angela M. Zimmerlink.

Goodwin contended in the initial complaint filed in February that his clients had a right to privacy when Doe 1 brought forward specific allegations of child sexual abuse involving Doe 2 for the purpose of initiating an investigation into the policies and procedures of the county Children and Youth Services (CYS) program.

Goodwin argued that the Does’ right to privacy was violated when Zimmerlink forwarded a chain of emails with the names of the alleged victims to reporters. U.S. District Judge Mark Hornak dismissed the majority of the complaint in June, and the following month, Goodwin amended it to add Zapotosky, who he argued should not have forwarded the names of the alleged victims to people not directly involved with CYS.

Marie Jones, the attorney representing the county and Zapotosky, has argued that the claims should be dismissed because the actions of the two commissioners do not constitute an official policy, and therefore municipal liability does not attach, as Goodwin has claimed. She has also contended that the Does had no clearly established right to privacy when they made the information available to Zapotosky and raised no objections when the email was forwarded to others.

In Wednesday’s filing Goodwin said the county’s lack of an official communication policy meant the board of commissioners passively agreed to allow sensitive information about victims of abuse to be publicized. He noted that Zapotosky unilaterally asked Doe 1 to commit her specific allegations to an email in order to get the investigation process started.

Zapotosky also, without input from fellow commissioners, forwarded Doe 1’s email to 14 other people, Goodwin wrote. On his own, Zapotosky decided to include Commission Chairman Al Ambrosini in the mail chain, but not Zimmerlink, Goodwin added.

Zimmerlink also made a unilateral decision to forward the information to the press, the attorney stated.

“The commissioners’ cavalier attitudes toward such sensitive information was clearly known, ongoing, and unlikely the sudden product of this particular case,” Goodwin stated.

The Does’ attorney also illustrated through case law that although Zapotosky’s and Zimmerlink’s actions were completely unrelated, they need not be in order to find that their combined actions constitute an official policy.

“Simply stated, when an official’s position gives them the discretion to take an action without leave, permission, discretion or reprisal of the municipality, it is because the official is the municipality in that instance,” wrote Goodwin. He noted that no entity in Fayette County has the ability to review the actions of two commissioners, who are a quorum, which in this case acted consistently to disseminate private information.

Zimmerlink, who is represented by attorney Jennifer McPeak, has said she wanted reporters to see from the chain of emails that she would not be able to attend the scheduled meeting because she was not informed of it until it was too late to resolve a scheduling issue. The names of the alleged victims were not published.

Zapotosky has maintained that he was only acting according to the wishes of Doe 1, and was pulled into the fray when the plaintiffs saw that the action against Zimmerlink and the county would fail without implicating him too.

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