FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on July 13, 2004, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2003-420, Janis W. Hardy v. Board of Education, Oxford Public Schools.  Both the complainant and the respondent Kevin Reid requested the imposition of civil penalties.

 

            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 November 21, 2003, and filed with the Commission on November 25, 2003, the complainant appealed to the Commission, alleging the respondents violated the Freedom of Information (“FOI”) Act by:

a.  filing an agenda for a special meeting of the Oxford Board of Education on November 12, 2003, less than twenty-four hours before such meeting; and

b.  filing an agenda for a special meeting of the Oxford Board of Education on November 17, 2003, less than twenty-four hours before such meeting.

            The complainant asked that the Commission declare null and void all actions taken at the meetings described in paragraph 2a. and 2b., above.

3.  The complainant also alleged that the respondent board failed to comport with the Oxford Town Charter and a Board of Education by-law during the course of those meetings.

4.  It is concluded that the allegations described in paragraph 3, above, do not allege violations of the FOI Act, and therefore, such allegations shall not be addressed herein.

5.  At the hearing on this matter, the complainant also alleged that the respondents violated the FOI Act by failing to accurately reflect in the minutes of the November 12, 2003 special meeting what transpired at that meeting.  It is found that this matter was not fairly raised in the complaint in this case and therefore the Commission lacks jurisdiction to address it.

6.  It is found that the chairperson of the respondent board, Patricia Severson, whose term was due to expire in November 2005, resigned from the respondent board on November 5, 2003.  It is also found that the term of respondent member Kevin Reid was due to expire on November 17, 2003.  It is further found that upon learning of the vacant seat left by Severson’s resignation, respondent Reid asked that the respondent consider him to fill the vacant seat.  Furthermore, to avoid the possibility that he would not be able to fill a seat because he was currently a member of the respondent board, Reid resigned from the Oxford Board of Education on November 10, 2003. 

 

7.  With respect to giving notice of special meetings, §1-225(d), G.S., provides, in relevant part:

 

Notice of each special meeting of every public agency …shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof … in the office of the clerk of such subdivision for any public agency of a political subdivision of the state ….  The … clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting….  The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency….”

 

8.  Section 1-225(g), G.S., provides in relevant part:

 

[I]n determining the time within which or by when a notice, agenda, record of votes or minutes of a special meeting or an emergency special meeting are required to be filed under this section, Saturdays, Sundays, legal holidays and any day on which the office of the agency, the Secretary of the State or the clerk of the applicable political subdivision or the clerk of each municipal member of any multitown district or agency, as the case may be, is closed, shall be excluded.

 

9.  With respect to the allegation described in paragraph 2a., above, it is found that on November 10, 2003, respondent Michael Chappell submitted a notice of a special meeting of the Oxford Board of Education to the Oxford Town Clerk.  It is also found that the notice was date stamped by the Town Clerk at 8:11 p.m. and it provided that the meeting was to be held at 7:00 p.m. on November 12, 2003 at Quaker Farms School.  It is further found that one of the stated purposes of the meeting was to appoint a new board member to fill the vacancy of one of the board members, Patricia Severson.

 

10.  It is found that November 11, 2003 was a legal holiday.

 

11.  It is found that the respondent convened a special meeting on November 12, 2003 at 7:04 P.M. [hereinafter “the November 12 special meeting”] during which the respondent unanimously voted to appoint Kevin Reid to the Board of Education to fill the vacancy created by the resignation of Patricia Severson.

 

12.  It is found that the notice described in paragraph 2a., above, of the November 12 special meeting, was filed less than twenty-four hours prior to the time of the meeting.  Therefore, the respondent violated the notice provisions of §1-225(d), G.S.

 

13.  With respect to the allegation described in paragraph 2b, above, it is found that on Thursday, November 13, 2003, at 5:14 p.m., Judy Palmer, the Superintendent of Schools for the Oxford Public Schools, sent by fax to the Oxford Town Clerk a Notice of Special Meeting for Monday, November 17, 2003.  It is also found that the notice stated that the special meeting would be held at Quaker Farms School on Monday, November 17, 2003 at 7:00 p.m.  It is further found that upon learning that the Town Clerk had not received the entire fax, the respondent re-faxed the notice to Town Hall at 7:52 p.m. and it was file-stamped at 8:00 p.m.

 

14.  It is also found that the Office of the Oxford Town Clerk is open to the public Monday through Thursday; the office was closed on Friday through Sunday, November 14, 2003 through November 16, 2003.

 

15.  It is found that respondent Schmitt sought advice from the Board of Education’s attorney regarding how to proceed with the notice for the November 17, 2003 special meeting.  It is also found that the Board of Education received an opinion letter on November 17, 2003 at 6:40 p.m. from its attorney stating in pertinent part:

 

Application of these statutory provisions to tonight’s meeting of the Oxford Board of Education leads to the conclusion that the twenty–four hour advance notice requirement has not been satisfied.   Our research has failed to locate any decisions of the Commission which leads us to conclude that the Commission would find notice filed twenty-three hours in advance of a meeting to be acceptable under the statute.

 

16.  It is found that due to the unexplained failure of the Oxford Town Clerk to receive the first faxed notice of the November 17 meeting, the respondent, through its employee, Marlene Anderson, taped copies of the notice of the November 17 meeting on the front door outside the Town Hall on the morning of November 14, 2003. It is further found that on November 17, 2003, respondent member Chappell decided to delay the start of the respondent’s special meeting for one hour and posted the following handwritten notice on the door outside the meeting room between 6:30 p.m. and 7:00 p.m.:

To meet the statutory regulations, the Special Board

Of Education meeting scheduled for 7:00 P.M. will begin at 8:00 P.M.

 

17.  It is found that two matters were placed on the agenda for the special meeting scheduled for November 17, 2003: suspension of the Oxford Board of Education’s by-laws for purposes of appointment of a new member to the Oxford Board of Education and appointment of a new member to the Oxford Board of Education. 

 

18.  It is found that the respondents convened a special meeting at 8:00 p.m. on November 17, 2003 [hereinafter “the November 17 special meeting”] during which the Board of Education unanimously voted to appoint Kevin Reid to the Board of Education to fill the vacancy created by the resignation of Patricia Severson.

 

19.  It is found that the notice described in paragraph 13, above, of the November 17 special meeting was filed less than twenty-four hours prior to the time of the meeting.  Therefore, it is concluded that the respondent violated the notice provisions of §1-225(d), G.S.

 

20.  Respondent Kevin Reid maintains that the complaint against him should be dismissed because he was not a member of the respondent board at the time of the alleged FOI violations.

 

21.  It is found that respondent Kevin Reid resigned from the Board of Education on November 10, 2003, prior to the November 12 meeting and was therefore, not a member of the respondent board at the time of the violations described in paragraphs 12 and 19, above.

22.  With respect to the complainant’s request for the imposition of a civil penalty §1-206(b)(2), G.S., provides in relevant part that:

. . . [U]pon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.

 

23.  The Commission declines to consider the imposition of a civil penalty against the respondents under the facts and circumstances of this case.

24.  With respect to respondent Kevin Reid’s request for a civil penalty, §1-206(b)(2), G.S., provides in relevant part:

If the Commission finds that a person has taken an appeal …frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal was taken, after such person has been given the opportunity to be heard … the Commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars….

25.  It is found that the complainant’s appeal to this Commission was not taken frivolously, without reasonable grounds and solely for the purpose of harassing the respondents, within the meaning of §1-206(b)(2), G.S.  Consequently, the respondent’s request for a civil penalty against the complainant is denied.

26.  The Commission declines to declare null and void the actions taken at the meetings described 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 against respondent Kevin Reid.

 

            2.  Henceforth, respondents Michael Chappell, Chairman, Board of Education, Oxford Public Schools, Nancy Schmitt, member, Board of Education, and Oxford Public Schools, shall strictly comply with the notice provisions of §1-225(d), G.S.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 27, 2004.

 

________________________________

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:

 

            Janis W. Hardy

14 Wyant Road

Oxford, CT 06478

 

Michael Chappell, Chairman,

Board of Education, Oxford Public Schools,

Kevin Reid and Nancy Schmitt, members,

Board of Education, Oxford Public Schools, and

Board of Education, Oxford Public Schools

c/o Donald F. Houston, Esq.

Durant, Nichols, Houston,

Hodgson & Cortese-Costa, P.C.

1057 Broad Street

Bridgeport, CT 06604-4219

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2003-439FD/paj/10/28/2004