Published January 13. 2012 4:00AM
Stonington - A Pawcatuck woman who formally sued First Selectman Ed Haberek this week for allegedly sending her "sexually graphic photos of himself" on his town-issued Blackberry, says she also has sued the town, in part because it has interfered with her legal effort to obtain evidence from the town's cellphone provider.
Tracy Swain, who had notified the town of her intent to sue last week, states in the lawsuit that the town has opposed her effort to lawfully obtain evidence when it has no legal standing to do so.
In court documents, her attorney, Scott Camassar has argued "the wrongs perpetuated by Mr. Haberek in sending photos to the plaintiff constitute a private civil matter between him and the plaintiff."
Over the past month, town labor attorney Michael Satti has filed several motions in the case - called Swain vs. Cellco Partnership - seeking to prevent the disclosure of the phone records and stopping Haberek's deposition.
The suit states that the town assumed liability for Haberek's actions when it appeared in the Swain vs. Cellco action and declared or implied Haberek was an agent of the town at the time of the incident.
The Day filed a freedom of information request with the town Tuesday seeking copies of the legal bills it has incurred so far in the case. As of Thursday, the town had not provided those bills.
In July, 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.
The suit also charges Haberek engaged in conduct that he should have known would cause emotional distress and physical injury to Swain, who continues to suffer from migraine headaches.
The suit further charges the town allowed Haberek to contact Swain inappropriately and let him transmit a graphic photos of himself using town equipment and a phone number assigned to the town.
It also alleges the town failed to monitor Haberek's communications with Swain and failed to have a policy or enforce a policy regarding proper use of town equipment and electronic communications. The suit seeks monetary damages.
Haberek has said he cannot comment on the issue because it involves litigation against the town. But he said he reserves the right to take his own legal action against Swain in the future.
Two years ago, Swain 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 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 also have refused to release to Swain the contents of their investigation.
The suit states that prior to Jan. 12, 2010, Haberek had extensive telephone, email, text message and Facebook communication with Swain. When Swain told him on that date to stop sending the messages, he allegedly sent her the lewd photos.