FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on October 15 and October 27, 2003, and February 5, 2004 at which times the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  After review of the testimony, exhibits, and argument at the hearings on October 15 and October 27, 2003, the hearing officer submitted his report to the full Freedom of Information Commission, which report was reviewed at the Commission’s January 14, 2004 regular meeting.  The Commission unanimously voted to re-open and remand the case to the hearing officer for the purpose of taking evidence from one witness, a Mr. Walter Cusson, which was taken at the hearing on February 5, 2004.

 

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 April 4, 2003, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act.  Specifically, the complainant alleged that the respondent ethics committee failed to:

 

a.        conduct meetings open to the public;

 

b.       file notice of its special meetings with the town clerk;

 

c.       make the minutes of its meetings available for public inspection within seven days of the meeting to which they refer;

 

d.      make agendas available to the public;

 

e.       reduce the votes taken at its meetings to writing and make them available for public inspection within forty-eight hours; and

 

f.        make its records available for public inspection or copying during regular office or business hours. 

 

The complainant alleged that the respondent policy and ordinance review committee (hereinafter “the respondent PORC”), failed to:

 

g.       make the minutes of its meetings available for public inspection within seven days of the meeting to which they refer;

 

h.       reduce the votes of each member to writing and make them available for public inspection within forty-eight hours; and

 

i.         make its records available for public inspection or copying during regular office or business hours. 

 

The complainant requested that this Commission declare null and void all action taken by the respondents at unnoticed meetings and that the respondents be ordered to provide her with all records generated and maintained by the respondents including agendas, minutes, and voting records.

 

3.      It is found that the respondent ethics committee is a two-member committee that was created by the Glastonbury Town Council on or about November 22, 2001 to develop and recommend a Code of Ethics which, if adopted by the town council, would be applicable to all town employees.  It is found that the two members of the respondent ethics committee are also members of the town council.

 

4.      With respect to the complainant’s allegation described in paragraph 2a, above, §1-200(2), G.S., provides in relevant part 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, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.  “Meeting” does not include . . . any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business . . . .

 

5.      Section 1-225(a), G.S., provides in relevant part that “[t]he meetings of all public agencies . . . shall be open to the public.”

 

6.      It is found that the respondent ethics committee held special meetings on January 10, 2002 and February 21, 2002 which meetings the complainant and other members of the public attended; consequently it is found that those meetings were “open to the public” within the meaning of §1-225(a), G.S.

 

7.      It is found that the two members of the respondent ethics committee have been friends for many years and that consistent with such a relationship, they met socially for lunch on or about February 6, 2003.  It is found that during their lunch, the two members discussed several topics, including town council business and the ethics code.  It is found, however, that the discussion regarding the ethics code was akin more to fleeting thoughts or comments made in passing rather than a discussion of substance and consequence.

 

8.      It is found that the luncheon described in paragraph 7, above, was a social meeting neither planned nor intended for the purpose of discussing matters relating to official ethics committee business and consequently, such luncheon was not a “meeting” within the meaning of §1-200(a), G.S.

 

9.      It is also found that the two members of the respondent ethics committee corresponded with each other via e-mail and telephone.  It is found that such correspondence was infrequent and occurred only to touch base to ensure that each member was moving forward with their work on the code.   

 

10.  At the hearings on this matter and in her briefs, the complainant argued that such correspondence constituted secret meetings.

 

11.  It is found however that the record in this case does not support a finding that the correspondence amounted to a “. . . hearing or other proceeding of a public agency, ”  or a “convening or assembly of a quorum of a multimember public agency,” or a “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” within the meaning of §1-200(2), G.S.

 

12.  It is further found that throughout the respondent ethics committee’s existence there were numerous references at town council meetings that the respondent ethics committee had met.  It is also found that there was at least one reference by the chairman of the town council that the respondent ethics committee had held “a lot of meetings.”

 

13.  At the hearing on this matter and in her briefs, the complainant argued that such references are clear and convincing evidence that the respondent ethics committee held many meetings during its existence and that those meetings were not noticed or open to the public in violation of the FOI Act. 

 

14.  It is found however that the evidence, as a whole, shows that the meetings referred to were either:

 

a.       meetings of a citizen’s drafting committee [1] attended by at least one member of the respondent ethics committee; or 

 

b.      meetings that one member of the respondent ethics committee had with attorneys consulted regarding the content of the ethics code.  

 

15.  Based on the findings in paragraphs 6 through 14, above, it is found that the respondent ethics committee held no meetings within the meaning of 1-200(2), G.S.,  relevant to this complaint, other than those described in paragraph 6, above.

 

16.  It is concluded therefore that the respondent ethics committee did not violate the open meetings provisions of §1-225(a), G.S., as alleged by the complainant in paragraph 2a, above.

 

17.  With respect to the complainant’s allegations described in paragraphs 2b and 2d, above, concerning notices and agendas, §1-206(b)(1), G.S., provides in relevant part that:

 

[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed within thirty days after the person filing the appeal receives notice in fact that such meeting was held.  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

 

18.  It is found that the complaint in this matter was filed more than 30 days after the January 10, 2002 and February 21, 2002 special meetings described in paragraph 6, above.  Accordingly, it is concluded that this Commission lacks subject matter jurisdiction over such allegations and they will not be addressed herein.   

 

19.  However, failure to maintain minutes and votes is a ongoing violation since §1-210(a), G.S., places an obligation on public agencies to make, keep and maintain a record of the proceedings of their meetings.  As such, this Commission has jurisdiction over the allegations described in paragraphs 2c, 2e, 2g and 2h above. 

 

20.  With respect to the complainant’s allegations described in paragraphs 2c and 2g, above, §1-225(a), G.S., provides in relevant part that the “minutes [of a public agency’s meeting] shall be available for public inspection within seven days of the session to which they refer.”

 

21.  It is found that while the minutes of the respondents’ special meetings do not have a date on them, such minutes were prepared one or two days after the meetings to which they refer and were available for public inspection or copying at the town manager’s office, which is the regular place of business of the respondent town council and its committees, within the required seven days of such meetings. 

 

22.  It is concluded therefore that the respondents did not violate §1-225(a), G.S., as alleged by the complainant in paragraphs 2c and 2g, above.

 

23.  With respect to the complainant’s allegations described in paragraphs 2e and 2h, above, §1-225(a), G.S., provides in relevant part that:

 

[t]he votes of each member of any . . . public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall be recorded in the minutes of the session at which taken . . . .

 

24.  It is found that the respondent ethics committee did not conduct any votes during its January 10 and February 21, 2002 special meetings and therefore there were no votes to be reduced to writing.

 

25.  It is found that the record in this case does not support a finding that the respondent PORC took votes at its meetings that were not reduced to writing.

                       

26.  Based on the findings in paragraphs 21, 22, 24 and 25, above, it is concluded that the respondents did not violate the provisions of §1-225(a), G.S., as alleged in paragraphs 2e and 2h, above.

 

27.  With respect to the complainant’s allegations described in paragraphs 2f and 2i, above, it is found that on or about May 3, 2003, the complainant attempted to inspect certain records at the town manager’s office and was asked to make an appointment. 

 

28.  It is found, however, that the request described in paragraph 27, above, occurred after the complaint in this matter was filed with the Commission; consequently, this Commission lacks jurisdiction over the complainant’s allegations described in paragraphs 2f and 2i, above, and they will not be addressed herein.

 

 

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 March 24, 2004.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Dana L. Evans

203 Mountain Road

Glastonbury, CT  06033

 

Ethics Committee, Town Council,

Town of Glastonbury; and Policy and

Ordinance Review Committee,

Town Council, Town of Glastonbury

c/o David S. Rintoul, Esq.

2252 Main Street

Glastonbury, CT  06033

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

FIC/2003-127/FD/abg/03/26/2004