Stonington - A Pawcatuck woman has filed a notice that she intends to sue the town and First Selectman Ed Haberek for allegedly sending her a "sexually graphic photo of himself via a Facebook message."

Two years ago, Tracy Swain of Courtland Street had complained about the alleged incident to state police, who investigated and determined no crime had been committed.

During that probe, state police seized Haberek's town-issued BlackBerry and computer and obtained a search warrant for hundreds of pages of his Facebook messages and postings.

The Day requested access to that information, but state police refused to release it. The Day appealed, but this past July, the state Freedom of Information Commission ruled that state police did not have to release the information because the investigation involved uncorroborated allegations as well as a signed witness statement and records that, if disclosed, would constitute an invasion of personal privacy.

State police have also refused to release to Swain the contents of their investigation.

Haberek said Thursday he could not comment on the notice to sue because it involved potential litigation against the town. But he said he reserves the right to take his own legal action against Swain in the future.

At this time, Haberek said, he wants to continue to focus on issues facing the town, such as the preparation of the 2012-13 budget.

The notice, filed by Swain's attorney Scott Camassar of North Stonington, states that on various dates prior to and including Jan. 12, 2010, Haberek had telephone and extensive email, text message and Facebook communication with Swain, who frequently attended meetings of town agencies, including the Board of Selectmen.

The notice states that on Jan. 12, after Swain told Haberek to stop sending her messages, he allegedly sent her the lewd photo of himself. Phone records obtained from the town by Camassar show two picture messages were sent from his phone on the night of Jan. 12, though the recipient is not identified.

The notice states that Haberek's conduct caused and continues to cause Swain emotional distress and worsened a prior migraine condition. She has needed medical treatment and therapy and will continue to need them as some of the injuries are permanent or will last an indefinite period of time, according to the notice.

The notice states that in July 2010, Camassar informed Haberek of Swain's claim and three months ago filed a bill of discovery in New London Superior Court seeking to obtain evidence of Haberek's conduct from Verizon Wireless.

Last month, the town filed a motion to strike the Bill of Discovery and stop Camassar from deposing Haberek under oath.

The notice states that the town has interfered with Swain's attempt to obtain evidence from a third party. It charges that the town has no legal standing to become involved in a private civil matter between Swain and Haberek that involves conduct outside his employment as first selectman.

"As a result of the town's interference into this matter between two private parties, Tracy R. Swain will seek damages against the Town of Stonington," states the notice.

This means the town will likely incur legal fees to defend itself in the matter. Haberek said town attorney Thomas Londregan and town labor attorney Michael Satti will be handling the case for the town.

j.wojtas@theday.com