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 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)                    holding a meeting on February 28, 2005 that was not open to the public;

ii)                   failing to file minutes of the February 28, 2005 meeting;

iii)                 reaching a consensus during the February 28, 2005 meeting; and

iv)                 failing to file a record of the vote taken during the February 28, 2005 meeting.

 

In their letter of complaint the complainants requested the following remedies: 1) that the respondents be required to act in strict compliance with §§1-225, 1-200(6) and 1-82a G.S.; 2) that the respondent commission be required to disclose in writing what transpired during the February 28, 2005 meeting, and that such written disclosure be filed with the minutes of the February 28, 2005 meeting along with a copy of the hearing officer’s findings; 3) that the respondent commission’s “Procedures” that conflict with §1-210(a), G.S., be declared null and void; and 4) that a civil penalty in the amount of $1000 be imposed upon each member of the respondent commission.

3.  It is found that the respondent commission held a regular meeting on February 28, 2005, during which the respondent commission met in “closed session” and discussed a request for an advisory opinion.  It is the “closed session” that is the subject of this complaint, which shall be referred to hereinafter as the “closed session”.

4.  With respect to the allegations described in paragraph 2i, 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 within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer”.

 

5.  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.”

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

7.  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….”

 

8.  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.]

9.    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. 

10.  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].

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

12.  It is therefore concluded that the discussion of the request for an advisory opinion, held on February 28, 2005, was not a topic that should have been addressed in closed session because such topic 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.

 

13.  It is also found that the decision reached by the respondent commission as described in the respondent commission’s “Addendum to Minutes of Meeting of February 28, 2005”, was tantamount to a vote, and such vote should have been recorded in the minutes of the February 28, 2005 meeting. 

 

14.  It is therefore concluded that the respondents violated the FOI Act as alleged in the complaint.

 

15.  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 February 28, 2005 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 13, 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. 

 

 

 

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:

 

Karen Emerick

175 Coldbrook Road

South Glastonbury, CT 06073

 

Dana Evans

203 Mountain Road

Glastonbury, CT 06033

 

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/2005-102FD/paj/12/20/2005