FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

 

The above-captioned matter was heard as a contested case on September 12, 2005, at which time the complainants and the respondents appeared and presented testimony, exhibits and argument on the complaint. 

           

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 of complaint dated and filed on January 5, 2005, and supplemented by letter dated and filed on March 3, 2005, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

i)                    denying them prompt access to records requested on December 16, 2004;

ii)                   meeting in executive session on December 13, 2004 for an improper purpose;

iii)                 reaching a consensus in the December 13, 2004 executive session;

iv)                 failing to file a record of the consensus taken during the December 13, 2004 executive session; and

v)                  conducting a secret meeting on December 13, 2004.

 

In their complaint the complainants requested the following remedies: 1) that the respondents be required to act in strict compliance with §§1-200, 1-210 and 1-225, G.S.; 2) that the respondent commission be required to disclose in writing what transpired during the executive session, and that such written disclosure be filed with the minutes of the December 13, 2004 meeting along with a copy of the hearing officer’s findings; 3) that the respondent commission’s “Procedures” that conflict with the FOI Act be declared null and void; and 4) that a civil penalty in the amount of $100 be imposed upon each member of the respondent commission.

3.  With respect to the allegation described in paragraph 2i, above, it is found that complainant Emerick, by letter dated January 16, 2005, requested that the respondent commission provide her with access to inspect and or copy “the advisory opinion that was the subject of your Ethics Commission meeting of December 13, 2004.”

4.  It is found that the respondent commission held a meeting on December 13, 2004, during which it convened in executive session (hereinafter “executive session”).  It is found that during the executive session, the chairperson of the respondent presented a request for an advisory opinion to the members of the respondent, and such members reached a consensus that the respondent commission had jurisdiction to address such request.  It is found that the respondent commission did not discuss the substance of the request for advisory opinion during the executive session.

5.  It is found that at the time of complainant Emerick’s request, the respondent commission maintained on file the request for advisory opinion, however, the respondent commission did not issue its advisory opinion in connection with such request until January 2005.

6.  It is found that all of the records maintained on file by the respondent commission concerning the request for advisory opinion, including the respondent commission’s advisory opinion, were ultimately provided to the complainants during mid April 2005.   It is also found that the respondents did not provide the complainants with access to such records, prior to April 2005, because the respondents claim that all such records were exempt from disclosure pursuant to §§1-82a and 7-148h, G.S., until the subject of the advisory opinion waived confidentiality.

     7.  Section 1-210(a), G.S., provides, in relevant part:

“Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours …or (3) receive a copy of such records in accordance with section 1-212.  Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void”.  [Emphasis added].   

8.  Section 1-212(a), G.S., further provides, in relevant part: “Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”

9.  It is concluded that the records maintained by the respondents, and described in paragraph 6, above, are public records within the meaning of  §§1-210(a) and 1-212(a), G.S.

10.  It is also concluded, based on the analysis set forth in findings 15 through 19, below, that the respondents failed to prove that the advisory opinion records at issue were exempt from disclosure, pursuant to §§1-82a and 7-148h, G.S.  It is further concluded that the respondents’ provision of access to the request for advisory opinion, some four months after the complainants’ records request, was not prompt within the meaning of  §§1-210(a) and 1-212(a), G.S., and therefore, the respondent commission violated such provisions.    

11.  It is also concluded that because the advisory opinion did not exist as of the date of the complainants’ request, the respondent commission did not violate §§1-210(a) and 1-212(a), G.S., when if failed to provide the complainants with access to inspect or a copy of the advisory opinion.

12.  With respect to the allegations described in paragraph 2ii, 2iii, and 2iv, above, §1-225(a), G.S., provides in relevant part 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.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection….”

 

13.  Section 1-200(6), G.S., defines “executive session” to mean:

 

“…a meeting of a public agency at which the public is excluded for one or more of the following purposes:  (A)  Discussion concerning the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210”.

14.  The respondents do not contend that the executive session was permitted by §§1-225(a) and 1-200(6), G.S., but rather by §§1-82a and 7-148h, G.S.

15.  Section 1-82a, G.S., as revised by P. A. No. 05-183, effective July 1, 2005 provides, in relevant part:

“ (a) Unless a judge trial referee makes a finding of probable cause, a complaint alleging a violation of this part shall be confidential except upon the request of the respondent.  An evaluation of a possible violation of this part by the Office of State Ethics prior to the filing of a complaint shall be confidential except upon the request of the subject of the evaluation.  If the evaluation is confidential, any information supplied to or received from the Office of State Ethics shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by the ethics enforcement officer or staff of the Office of State Ethics….”

16.  Section 7-148h, G.S., provides in relevant part:

(“a) Any town, city, district, as defined in section 7-324, or borough may, by charter provision or ordinance, establish a board, commission, council, committee or other agency to investigate allegations of unethical conduct, corrupting influence or illegal activities levied against any official, officer or employee of such town, city, district or borough. The provisions of subsections (a) to (e), inclusive, of section 1-82a shall apply to allegations before any such agency of such conduct, influence or activities, to an investigation of such allegations conducted prior to a probable cause finding, and to a finding of probable cause or no probable cause….” 

                        [Emphasis added.]

17.    It is found that nothing in the language of §1-82a (as revised by P. A. No. 05-183) and §7-148h, G.S., refers to “advisory opinions”.  The respondents contend that the term “evaluation of a possible violation” should be interpreted to include a review of a request for an advisory opinion. 

18.  The Commission disagrees. The legislature specifically used the term “advisory opinion” in other provisions of the state Code of Ethics but did not do so with respect to §1-82a (as revised by P. A. No. 05-183) and §7-148h, G.S.  (See e.g. P. A. No. 05-183, §16(b): “The general counsel and staff of the Office of State Ethics shall compile and maintain an index of all reports and statements filed with the Office of State Ethics under the provisions of this part and advisory opinions and informal staff letters issued by the board with regard to the requirements of this part, to facilitate public access to such reports, statements, letters and advisory opinions promptly upon the filing or issuance thereof”; §16(c): “The general counsel and staff of the Office of State Ethics shall prepare quarterly and annual summaries of statements and reports filed with the Office of State Ethics and advisory opinions and informal staff letters issued by the Office of State Ethics; §16(d): “The general counsel and staff of the Office of State Ethics shall preserve advisory opinions and informal staff letters permanently; §16(e): “Upon the concurring vote of a majority of its members present and voting, the board shall issue advisory opinions with regard to the requirements of this part, upon the request of any person, subject to the provisions of this part, and publish such advisory opinions in the Connecticut Law Journal.”).  [Emphasis added].

19.  In addition, §7-148h, G.S., refers specifically to “allegations” brought before an ethics agency, and the investigation of such allegations.   

20.  It is therefore concluded that the presentation of the request for advisory opinion, the discussion regarding jurisdiction, and the consensus reached that the respondent commission had jurisdiction to entertain the request for advisory opinion, were not topics that should have been addressed in closed session because such topics did not pertain to the investigation of a complaint or an allegation before the respondent commission, within the meaning of §§1-82a and 7-148h, G.S.

 

21.  It is also found that the consensus reached by the respondent commission described in paragraphs 4 and 20, above, was tantamount to a vote, and such vote should have been recorded in the minutes of the December 13, 2004 meeting. 

 

22.  It is therefore concluded that the respondents violated the FOI Act as alleged in paragraph 2ii, 2iii and 2iv, above.

 

23.  With respect to the allegation described in paragraph 2v, above, it is found that the executive session was not a secret meeting in that the respondent commission had issued notice that such session would be held on December 13, 2004.

 

24.  Consequently, it is concluded that the respondents did not violate the FOI Act, as alleged in paragraph 2v, above.

 

25.  The Commission in its discretion declines to consider the imposition of civil penalties upon the respondents.  

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

1.  Henceforth, the respondents shall strictly comply with the open meetings provisions set forth in §1-225(a), G.S.

 

            2.  The respondent commission shall, within 90 days of the issuing of the notice of final decision in this matter, cause minutes to be filed of the December 13, 2004 closed session.  In preparing such minutes, the respondent commission shall ensure that the minutes: a) reflect the vote reached during such closed session as referenced in paragraph 4, of the findings, above, and b) disclose what transpired in the closed session to the same degree as would have been revealed by conducting the session in public.

 

3.  The Commission takes this opportunity to remind the respondents that pursuant to §1-210(a), G.S., any agency rule or regulation, or part thereof, that conflicts with the provisions of §1-210(a), G.S., or diminishes or curtails in any way the rights granted by §1-210(a), G.S., shall be void. 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 2005.

 

________________________________

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:

 

Dana Evans

203 Mountain Road

Glastonbury, CT 06033

 

Karen Emerick

175 Coldbrook Road

South Glastonbury, CT 06073

 

Alexandrina Sergio, Alan R. Spier,

Nancy Thomas, Patrick Treacy,

William H. Paetzold, Reginald L.

Babcock and John Sweeney,

as members, Ethics Commission,

Town of Glastonbury; and

Ethics Commission, Town of

Glastonbury

c/o Henry J. Zaccardi, Esq.

Shipman & Goodwin LLP

One Constitution Plaza

Hartford, CT 06103-1919

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2005-004FD/paj/12/19/2005