The rejection was emphatic, absolute, and laden with emotion.
In an email on Wednesday, attorney Paul T. Fitzgerald wrote that the city of Franklin, N.H., would reject “in its entirety” a settlement offer floated late last month by a local restaurant owner who’s suing the city, its police department, and eight officials.
Fitzgerald wrote that the plaintiff made “a rather important strategic error” by publicizing the settlement offer without giving the defendants any opportunity to review it first.
“I have never had this happen in 47 years of prior litigation experience,” he wrote.
The offer had come Nov. 22 from attorney Michael S. Lewis, who’s representing restaurateur Miriam Kovacs in a case that alleges local officials engaged in a civil conspiracy to violate her constitutional rights.
Kovacs, who operates the Broken Spoon eatery in Franklin, has had a strained relationship with the city’s police department since at least July 2022. That’s when her business was bombarded with fake online reviews, including antisemitic references to the Holocaust, after she condemned a white supremacist group on social media.
Kovacs, who is of Jewish and South Asian heritage, criticized the way police and city leaders responded, saying they failed to treat her situation with the seriousness it warranted. Her sustained criticism drew a public rebuke in February from Franklin police chief David Goldstein, who posted a statement on Facebook that named Kovacs and suggested her criticism ignored the facts.
That wasn’t the only action Goldstein took based on his disapproval of what Kovacs had been saying. Two months earlier, Goldstein wrote a disciplinary warning letter that strongly implied Franklin police officer Mark Faro would have to choose between his romantic relationship with Kovacs and his job. Goldstein concluded Kovacs had been promoting “anti-law enforcement attitudes and behaviors.” Faro resigned.
Kovacs filed suit in late August alleging city officials had conspired to violate her First Amendment rights, including her right to petition the government for redress of grievances. The lawsuit states Kovacs spoke out against a rising tide of racism and antisemitism and sought the protection of local officials, but they “adopted a policy of retaliatory viewpoint discrimination against her.”
Kovacs told the Globe she worried about her own safety and doubted her ability to access the public safety services her city offers.
“I’m living the worst-case scenario as to why people are hesitant to call in hate crimes,” she said, “so I hope that whatever the outcome is it makes other jurisdictions take this more seriously.”
City Manager Judie Milner has said Franklin leaders “rallied around” Kovacs after the July 2022 incident and subsequent incidents. The city council convened a special meeting that led to a resolution condemning hate and a newly formed anti-hate citizens group that remains active, she said. The city’s outgoing mayor, Jo Brown, has said she believes none of the defendants will be found culpable of any discriminatory action.
Milner, Brown, and Goldstein didn’t immediately respond Thursday to the Globe’s request for comment.
In the Nov. 22 settlement offer, Lewis wrote that the city and its co-defendants have a chance to protect constitutional rights and ensure the protections that Kovacs seeks for herself and others.
Rather than paying monetary damages, the defendants could settle the case by paying $7,340 in the plaintiff’s attorney fees, admitting to every count alleged in the lawsuit’s complaint, and consenting to a 10-part agreement spelled out in the letter. The offer called for more police training on hate crimes, a new police oversight commission to address civilian complaints, remedial training on New Hampshire’s public records law, and more.
“We intend to make this proposal public so that the public can determine whether your clients are making decisions in the best interests of the public, as public officials,” Lewis wrote, warning that proceeding with litigation would prove substantially more expensive.
Fitzgerald, who represents all the defendants in this case, responded to Lewis on Wednesday with an email that repeatedly misspelled the words “antisemitic” and “antisemitism.”
He suggested the defendants felt Kovacs had “once again ‘defamed them’ by portraying them as anti-somatic and racist” despite the steps they took to address such problems in the Franklin community before the lawsuit was filed. Fitzgerald asked whether Kovacs had considered Goldstein’s feelings about the allegations she raised.
“David is a Jewish-American who has devoted his entire adult career to public safety and is an individual who has faced anti-somatic schism firsthand and now finds himself accused of that and more,” Fitzgerald wrote.
Fitzgerald also asked whether Kovacs had considered the feelings of Brown, city councilors, members of the Franklin Police Department, and other city employees. He noted Brown has a history of military service.
“If I sound passionate in my defense of these employees it is because I have known several of them for decades and am aware of both their personal character and dedication to the City,” he wrote.
Fitzgerald called antisemitism and racism “ugly stains on the fabric of our modern American society,” and he said “no one of good conscience would tolerate or support them.” But he said it’s “simply inappropriate” to blame a small police department or city leadership team for “the rise of this unwelcome phenomena.”
In reply, Lewis wrote that Fitzgerald’s correspondence was “embarrassing” and “disconcerting” not only because of its misspellings and improper grammar but also because it didn’t address principles at issue in this case.
In a follow-up email on Thursday, Fitzgerald told Lewis the textual errors had resulted from voice dictation, and he provided a corrected copy of his prior email.
Lewis said even the corrected message fails to recognize that city officials, unlike Kovacs, voluntarily assumed certain obligations to the public. He said the defendants offered an “intensely personal response” that misstates the nature of the litigation and adopts “a warped personal martyrdom that fails to acknowledge that this case is about free speech and open and accountable government.”
Fitzgerald provided a copy of his corrected email to the Globe. He did not immediately respond Thursday to questions about why his clients declined the settlement offer rather than propose a counter offer, or why his email focused so much on the emotional experience of city officials.
Lewis told the Globe he had hoped the settlement offer would lead to an off-ramp.
“We wanted to try to find peace and avoid litigation,” he said, “and they want litigation, so that’s what they’re going to get.”