FIC2001-538

FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by			FINAL DECISION
Norman S. Primus,
		Complainants
	against		Docket #FIC 2001-538
Moira K. Lyons; Robert M. Ward; Melody A. Currey; Arthur J. O’Neill; Louis C. Deluca; Kevin B. Sullivan; Joseph J. Crisco, Jr.; David J. Cappiello; Nelson Brown, as members of State of Connecticut, Connecticut Redistricting Commission; and State of Connecticut, Connecticut Redistricting Commission,
		Respondent	July 24, 2002

The above-captioned matter was heard as a contested case on March 22, 2002, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

After the hearing on this matter, the respondents filed a motion to strike. The Hearing Officer and the Commission stated for the record that they did not consider any post-hearing evidence in this case. Therefore, the Commission denied the motion to strike.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents are public agencies within the meaning of §1-200(1), G.S.

2. By letter dated and filed on December 10, 2001, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (FOI) Act by communicating privately, outside the view of the public and prior to the respondent commission’s public votes taken at the respondent’s meetings held on November 26, 29 and 30, 2001. The complainant specifically alleges that the respondent commission’s members, prior to the November 26, 29 and 30, 2001 public meetings called themselves caucuses and used separate offices, and sent messages back and forth between the two caucuses, while in essence what the respondent members were doing was communicating with each other and among themselves in private, about the details of redistricting plans. The complainant requested that this Commission impose a civil penalty against the respondents and declare the actions of the respondent commission null and void.

3. It is found that pursuant to Article Third, Section 6 of the Connecticut Constitution, every 10 years after the completion of the national decennial census, the General Assembly is charged with apportioning the voting districts of the State House of Representatives and Senate, and the United States House of Representatives. Consequently, on February 15, 2001 the Connecticut General Assembly appointed a committee made up of eight of its members, four from the House and four from the Senate (“committee”) to consider matters of apportionment, advise the General Assembly regarding matters of apportionment, and to file a report to each chamber of the State House and Senate.

4. It is found that the committee failed to adopt plans of districting by September 15, 2001 and therefore, in accordance with Article Third, Section 6(b) of the Connecticut Constitution the respondent commission was constituted, its duty being to adopt districting plans and to submit same to the Secretary of the State on or before November 30, 2001. It is found that the respondent commission is comprised of nine members, eight of whom are appointed by the Governor and designated by the President Pro Tempore of the Senate, the Speaker of the House of Representatives, the Minority Leader of the Senate and Minority Leader of the House of Representatives. The eight appointed members of the respondent commission then designated an elector as their ninth member. Four of the respondent commission members are members of the Democratic Party and five are members of the Republican Party, but one member, Nelson Brown, did not participate in the Republican caucus.

5. It is found that the respondent commission held a number of public meetings concerning redistricting throughout the fall of 2001 including November 26, 29 and 30.

6. It is found that at the November 26 and 29, 2001 meetings, described in paragraph 5 above, the members of the respondent commission unanimously voted and adopted districting plans for the State Senate and House, respectively. It is found that on November 30, 2001, the last day the respondent commission was authorized to act, it held a meeting but failed to adopt a redistricting plan for the United States House of Representatives. Based on petitions filed by various parties the matter was referred to the Supreme Court, which granted the respondent commission’s request for additional time until December 21, 2001 to adopt a plan. The respondent commission adopted a redistricting plan for the United States House of Representatives on December 21, 2001.

7. The respondent commission first contends that its authority, and therefore its existence, terminated as of December 21, 2001 the extension date permitted by the Supreme Court, and that it disbanded on February 15, 2002 and no longer exists. It further contends that the Supreme Court dismissed all constitutionally authorized challenges with respect to the redistricting plans, and that the complainant’s appeal should be dismissed as moot because there is no relief that this Commission can provide to the complainant.

8. It is found that as of the dates of the alleged violations and the filing of the complaint in this matter the respondent commission had not disbanded and such commission was subject to the FOI Act.

9. It is therefore concluded that this Commission has jurisdiction to review whether the alleged violations occurred, and pursuant to §1-206(b)(2), G.S., “may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act,” including declaring null and void any action taken at a meeting which a person was denied the right to attend.

10. Consequently, it is further concluded that the complainant’s appeal is not moot and therefore the respondents’ Second ground for dismissal is denied.

11. It is found that on November 26, 2001 at a public meeting held by the respondent commission such commission met briefly at a meeting open to the public and voted unanimously to adopt a districting plan for the State Senate. It is also found that on November 29, 2001 at a meeting open to the public the respondent commission met briefly and because there was no agreement among its members regarding a State House of Representatives plan the respondent commission recessed, met privately in their respective caucuses (the ninth member did not attend any of the caucus meetings), thereafter, the respondent commission reconvened and met briefly at approximately 6:00 p.m. and unanimously approved a plan for the State House. It is also found that on November 30, 2001 at a public meeting the respondent commission again met briefly and because there was no agreement of the members regarding a congressional plan, the respondent commission recessed, met privately all day in their respective caucuses (the ninth member did not attend any of the caucus meetings), thereafter, the respondent commission reconvened and determined that they were unable to agree upon a plan.

12. The complainant contends that if on the occasions when the respondent commission members met in their respective caucuses, such caucuses were sequestered in two different places, how then did the two caucuses arrive at common redistricting plans for the State Senate and House and the United States House of Representatives without meeting together, and how did each caucus know what the other was doing and how and under what circumstances did all nine members of the respondent commission communicate to resolve any differences with respect to the redistricting plans? The complainant contends further that communication between caucuses is not permissible and that such communications should have been held at the respondent’s meetings that were open to the public.

13. It is found that on various occasions on November 26, 29 and 30, 2001, the members of the respondent commission met in their respective caucuses. During such separate caucuses the members attending discussed draft plans or parts of plans and proposals concerning redistricting (hereinafter “drafts and proposals”). During such caucuses staff members, acting on behalf of the caucuses, delivered on different occasions computer discs containing maps or outlines of maps and other records from one caucus to the next, and delivered new or updated drafts and proposals that one caucus wanted to share with the other caucus. Once new or updated versions of drafts and proposals were received by a caucus such caucus reviewed the material, made any changes deemed it fit, and had such revised drafts delivered to the other caucus.

14. It is also found that on November 26, 29 and 30, 2001 various members of the respondent, less than a quorum on each occasion or no more than four members, informally discussed substantive issues concerning the redistricting plans and proposals. It is found that during such informal discussions members of the respondent exchanged ideas about the plans, and then took such ideas back to their respective caucuses, where most of the work on the plans and proposals was done.

15. The respondent contends that because a caucus and records generated by that caucus are not subject to the FOI Act, then the exchange of the records in the form of draft plans did not transform the caucus sessions into meetings. In addition, the respondents contend that the discussions among members of the respondent commission, whether in or outside of the caucus setting, lacked the necessary formalities or attributes of a hearing or proceeding. The respondents further contend that the alleged communications among members of the respondent commission were not by or to a quorum and therefore did not constitute meetings.

16. Section 1-200(1), G.S., in relevant part, defines “public agency” to include: [“a]ny executive, administrative or legislative office of the state … any … commission, authority or official of the state … including any committee of, or created by, any such office….”

17. Section 1-225(a), G.S., in relevant part, further provides, that: “[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public.”

18. Section 1-200(2), G.S., provides that: “ ‘meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency … to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”

19. Section 1-200(2), G.S., further provides that: “ ‘Meeting’ shall not include…a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency . . . .”

20. Section 1-200(3), G.S., in relevant part further provides, that “caucus” means “a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision.”

21. With respect to the continuous exchange of the plans and proposals between caucuses, as described in paragraph 13, above, it is found that such exchanges allowed eight of the nine members of the respondent commission to communicate their views and preferences with respect to the redistricting plans to each other.

22. It is found that the continuous exchange of the drafts and proposals between caucuses was the method by which the respondent commission chose to conduct the business of such agency and specifically the method by which the respondent commission created redistricting plans.

23. It is found that the exchanges of the drafts and proposals occurred between two separate caucuses, and resulted from the action of two separate “caucuses,” as that term is defined in §1-200(3), G.S. It is therefore concluded that according to the express language of §1-200(2), G.S., such action is excluded from the definition of “meeting” for purposes of the open meetings provisions of the FOI Act.

24. Consequently, it is concluded that the respondent commission did not violate §1-225(a), G.S., by conducting some of the business of the agency by means of the continuous exchange of drafts and proposals between the two caucuses.

25. With respect to the discussions among members of the respondent commission, as described in paragraph 14, above, it is found that such discussions regarding substantive redistricting issues do not fall within any of the exclusions to the “meeting” definition. It is also found that such discussions constituted an integral step in bringing the redistricting process to conclusion in light of the November 30, 2001 deadline faced by the respondent commission. It is further found, however, that there is insufficient evidence to conclude that these discussions by less than a quorum of the respondent commission were authorized either explicitly or implicitly by the respondent commission. It is therefore, concluded that such discussions did not constitute “meetings,” as defined in §1-200(2). G.S.

26. Consequently, it is further concluded that the respondents did not violate §1-225(a), G.S., when less than a quorum of its members privately discussed substantive issues concerning the redistricting plans.

27. The complainant’s requests that this Commission impose a civil penalty against the respondents and order null and void the actions of the respondent commission are hereby denied.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. The complaint is hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of July 24, 2002.

_______________________________________

Petrea A. Jones

Acting Clerk of the Commission

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

Norman S. Primus

136 Gardner Avenue

New London, CT 06320-4348

Moira K. Lyons; Robert M. Ward;

Melody A. Currey; Arthur J. O’Neill;

Louis C. Deluca; Kevin B. Sullivan;

Joseph J. Crisco, Jr.; David J. Cappiello;

Nelson Brown, as members of State of

Connecticut, Connecticut Redistricting

Commission; and State of Connecticut,

Connecticut Redistricting Commission

c/o Susan Quinn Cobb, Esq.

Assistant Attorney General

55 Elm Street, PO Box 120

Hartford, CT 06141-0120

________________________________

Petrea A. Jones

Acting Clerk of the Commission

FIC/2001-538/FD/paj/7/29/2002