Published January 30. 2013 4:00AM Updated January 30. 2013 11:42PM
Stonington - The town has filed three special defenses in the Tracy Swain lawsuit, including one in which it is trying to distance itself from any alleged inappropriate actions by First Selectman Ed Haberek, saying such actions would be outside his scope of employment.
Swain has sued both Haberek and the town, alleging that Haberek used a town-issued BlackBerry to send her a "sexually graphic photo of himself" in January 2010.
Her suit states that prior to Jan. 12, 2010, Haberek had extensive phone, email, text and Facebook communication with her. When Swain told him on that date to stop sending the messages, he allegedly sent her the photos of himself. Haberek has said the allegations are false.
In November, a judge rejected the town's attempt to get itself removed from the lawsuit. The November ruling meant the case could proceed with the town responding to Swain's allegations, followed by discovery, depositions and trial.
In the town's response to the suit filed on Jan. 13, the town claimed three special defenses.
In one, it argues that if Swain is able to prove her allegations against Haberek, such conduct "was outside his duties, responsibilities, scope and capacity as first sel ectman."
In another, the town says it is protected from Swain's claims by governmental and municipal immunity. In the third, it argues that Swain's claims fail to comply with demand and notice requirements under state law.
Swain's attorney has offered the town two ways to get out of the lawsuit but those involved Haberek admitting to Swain's allegation or turning over potential evidence in the case.
The town's insurance company is providing an attorney to represent it in the case, The company would likely pay damages, if any are awarded, according to town officials. No trial date has been set.