FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| Timothy J. Riordan, | |||
| Complainant | |||
| against | Docket #FIC 2006-252 | ||
|
Board of Finance, Town of Orange, |
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| Respondent | May 9, 2007 | ||
The above-captioned matter was heard as a contested case on November 16, 2006, at which time the complainant and respondent appeared, stipulated to certain facts 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 respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated and post marked May 12, 2006 and received on May 16, 2006, the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:
a. holding a secret meeting on April 12, 2006, for which there was no notice, agenda or minutes;
b. holding a secret meeting on a date between April 24, 2006 and May 8, 2006, at which meeting certain changes to the 2006-2007 budget were made;
c. failing to file minutes of its January 30, February 9 and 27, March 6, and April 3, 2006 meetings;
d. failing to file an agenda for its February 3, 2006 meeting;
e. filing approved minutes for the March 16, 2006 meeting that were “completely different” than the unapproved minutes filed for that meeting;
f. filing the same or similar minutes for the March 27, 2006 meeting as were filed for the March 16, 2006 meeting;
g. failing to record in its April 10, 2006 meeting minutes the votes taken to make changes to the 2006-2007 budget;
h. failing to file approved minutes of certain meetings;
i. failing to include in the minutes of its March 27, 2006 and April 10, 2006 meetings the reason for convening in executive session at those meetings; and
j. failing to record the votes taken at any of its budget meetings.
3. At the hearing on this matter and in its brief, the respondent moved for a dismissal of the complainant’s appeal contending that because the complainant failed to file his appeal within thirty days of the alleged violations, this Commission lacks jurisdiction over the appeal.
4. With respect to the filing of the complaint in this matter and the Commission's jurisdiction over the appeal, §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 F[OI] Act may appeal therefrom to the F[OI] Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial. 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. (Emphasis added.)
5. With respect to the allegation described in paragraph 2a, above, it is found that the respondent held a meeting via telephone conference on April 12, 2006, the minutes of which are included in the respondent’s April 10, 2006 meeting minutes as an addendum. It is found that the addendum provides in relevant part as follows:
E-mail from Kevin MacNabola April 12, 2006: Just to recap this morning’s conference call, the Board of Finance unanimously approved and authorized the designation of $525, 000 . . . .
6. It is found that the respondent’s April 10, 2006 meeting minutes described in paragraph 5, above, were filed with the town clerk of Orange on May 4, 2006.
7. It is concluded that the statutory standard for subject matter jurisdiction in the case of an allegedly secret or unnoticed meeting is thirty days after the person filing the appeal receives notice in fact that such meeting was held.
8. It is found that the complainant received notice in fact that the respondent held the April 12, 2006 telephone conference on May 4, 2006 and that pursuant to §1-206(b)(1), G.S., the complainant is deemed to have filed his appeal on May 12, 2006.
9. It is found that the complainant filed his complaint within thirty days of receiving notice in fact of the April 12, 2006 telephone conference and the Commission has subject matter jurisdiction over the allegation described in paragraph 2a, above.
10. In that regard, §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.
11. Section 1-210(a), G.S., provides in relevant part that “[e]ach such agency shall make, keep and maintain a record of the proceedings of its meetings.”
12. Section 1-225, G.S., provides in relevant part that:
(a) the meetings of all public agencies . . . shall be open to the public . . . .
(d) 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 notice shall specify the time and place of the special meeting and the business to be transacted.
13. It is found that the respondent’s telephone conference of April 12, 2006 was a special meeting and that the respondent failed to notice and make available an agenda for that special meeting; consequently, it is concluded that the respondent violated §1-225(a) and (d), G.S., in that regard.
14. With respect to the complainant’s allegation described in paragraph 2b, above, it is found that the respondent did not hold a secret meeting between April 24, 2006 and May 8, 2006.
15. It is concluded, therefore, that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2b, above.
16. With respect to the complainant’s allegation described in paragraph 2c, above, the Commission has consistently concluded that the failure to maintain accurate minutes is a continuing violation. Accordingly, the Commission has jurisdiction over the allegation described in paragraph 2c, above, and it shall be addressed below.
17. Section 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.”
18. It is found that the respondent held a special meeting on January 30, 2006 and filed the minutes of that meeting on March 1, 2006, more than seven days after that meeting.
19. It is found that the respondent held a special meeting on March 6, 2006 and filed the minutes of that meeting on March 21, 2006, more than seven days after that meeting.
20. As already found in paragraph 8, above, however, that the complainant’s notice of appeal in this matter is deemed to have been filed on May 12, 2006, which is more than thirty days from the date of the alleged violations described in paragraphs 18 and 19, above. Consequently, the Commission lacks jurisdiction over filing of the January 30, and March 6, 2006 meeting minutes.
21. It is found that there is no evidence in the record that the respondent filed minutes of its February 9 and 27, and April 3, 2006 meetings; consequently it is found that the respondent failed to file minutes of such meetings.
22. It is concluded therefore that the respondent violated §1-225(a), G.S., by failing to file minutes of its February 9 and 27, and April 3, 2006 meetings.
23. With respect to the complainant’s allegation described in paragraph 2d, above, §1-225(c), G.S., provides in relevant part that:
“[t]he agenda of the regular meetings of every public agency … shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency's regular office or place of business or, if there is no such office or place of business, . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state . . . .”
24. It is found that the respondent held a regular meeting on February 3, 2006 at 9:30 in the morning.
25. It is found that the agenda for the February 3, 2006 regular meeting should have been available to the public on February 2, 2006 at 9:30 in the morning.
26. It is found, however, that the Commission lacks jurisdiction over the allegation described in paragraph 2d, above, because the complaint in this matter was not filed within thirty days of the alleged violation.
27. With respect to the allegation described in paragraph 2e, above, it is found that the complainant has not alleged a violation of the FOI Act and therefore such allegation will not be addressed herein.
28. With respect to the allegation described in paragraph 2f, above, it is found that the respondent held the meeting that the March 16, 2006 minutes refer to on March 27, 2006 and not on March 16, 2006. It is found that the date of March 16, 2006 on any meeting minutes of the respondent is a typographical error.
29. It is concluded, however, that the typographical error described in paragraph 28, above, is not a violation of the FOI Act and will not be addressed further.
30. With respect to the allegation described in paragraph 2g, above, §1-225(a), G.S., provides in relevant part that:
[t]he votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing . . . and shall also be recorded in the minutes of the session at which taken . . . .
31. As already found in paragraph 5, above, the respondent’s meeting minutes dated April 10, 2006 include the minutes from its April 12, 2006 special meeting as an addendum. It is found that, at that time, the respondent believed that April 12, 2006 meeting was simply a continuation of its budget discussions at the April 10, 2006.
32. It is found that the minutes described in paragraph 31, above, reflect that the respondent did not take a vote at the April 10, 2006 meeting to make individual changes to the budget nor did it vote to make individual changes to the budget during the April 12, 2006 special meeting. It is found rather that the respondent voted, unanimously, at the April 12, 2006 meeting to approve moving the budget, as changed, to a public hearing. It is found that such vote was recorded in the April 10, 2006 meeting minutes in the addendum described in paragraph 5, above.
33. It is found that while the respondent’s method for approving changes to its recommended budget may be considered unorthodox, the respondent’s failure to vote is not a violation of the FOI Act and therefore, it is concluded that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2g, above.
34. With respect to paragraph 2h, above, it is found that nothing in §1-225(a), G.S., requires that an official or approved copy of the minutes be placed on file within the time period set forth in that statute. All that is required is that the minutes accurately reflect what transpired at the meeting.
35. Consequently, it is concluded that the allegation described in paragraph 2h, above, does not allege a violation of the FOI Act and will not be addressed further.
36. With respect to the allegation described in paragraph 2i, above, §1-210(a), G.S., provides in relevant part that “[e]ach such agency shall make, keep and maintain a record of the proceedings of its meetings.”
37. Section 1-225(f), G.S., provides in relevant part that:
A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.
38. Section 1-210, G.S., does not explicitly require an agency to state in its meeting minutes the purpose for convening in executive session. However, this Commission has held, in numerous final decisions, that §1-210, G.S., does require that minutes accurately and fairly apprise the public of what transpired at the meeting to which such minutes refer.
39. It is found that the agenda for the respondent’s March 27, 2006 meeting was as follows:
Agenda
1. Public participation.
2. Set date for Annual Budget Hearing.
3. Current status 2005-2006 Budget.
4. Budget workshop.
40. It is found that the minutes for the respondent’s March 27, 2006 meeting state in relevant part as follows:
“There being no further questions or discussion regarding the budget report Mr. MacNabola asked for a motion to go into executive session including Vincent Merino, Leg Counsel and Olive Harbor, Finance Director. Kevin Houlihan so moved, with second by Kevin Moffett. Motion was carried unanimously.”
41. It is found that the executive session convened after a lengthy report by, and discussion with, Olive Harbor on the status of the 2005 town budget and a brief discussion of the Economic Development Corporation and funds related to it.
42. It is found that the agenda for the respondent’s April 10, 2006 meeting provides as follows:
Agenda
Civil Preparedness Committee and Reverse 911 Company Presentation and Demonstration of a Telephone Community Notification System.
43. The minutes for the respondent’s April 10, 2006 meeting provide in relevant part as follows: “The meeting then adjourned to executive session.”
44. It is found that the respondent convened in executive session at its April 10, 2006 meeting after it voted to add to the agenda, and discussed, “State reimbursement”, after it discussed certain changes made to the budget, and after a presentation and discussion of the Reverse 911 Interactive Community Notification System.
45. It is found that the respondent convened in executive session to conduct its budget workshop, which had become its practice at the end of every budget meeting.
46. It is found however, that the public cannot definitively discern the purpose for the March 27 and April 10, 2006 executive sessions, even with a review of the minutes in conjunction with a review of the agenda.
47. It is concluded, therefore, that the respondent failed to provide minutes which accurately and fairly apprise the public of the business transacted at its March 27 and April 10, 2006 meetings in violation of §§1-210(a) and 1-225(f), G.S.
48. With respect to the allegation described in paragraph 2j, the complainant explained, at the hearing on this matter, that he found it hard to believe that the respondent board made decisions with respect to the budget without ever voting to make such changes, and therefore he is left to believe that they did vote but failed to record the votes.
49. It is found that the complainant did not specify in his complaint, or at the hearing on this matter, which vote was taken by the respondent regarding the budget that was not recorded in its minutes, but rather made a general allegation based on how he believed the budgetary process should have been conducted.
50. It has already been found in paragraph 33, above, that the respondent’s method for approving changes to the town’s budget may be considered unorthodox, however, the respondent’s budgetary process is not a matter over which this Commission has jurisdiction.
51. It is also found that the respondent has recorded votes taken with respect to the town’s budget in its minutes.
52. It is concluded therefore that the respondent did not violate the FOI Act as alleged by the complainant in paragraph 2j, above.
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 with respect to those portions described in paragraphs 2b, 2c with respect to the January 30 and March 6, 2006 meeting minutes, 2d, 2e, 2f, 2g, 2h and 2j.
2. Henceforth the respondent shall strictly comply with the provisions of §§1-210(a) and 1-225, G.S.
3. It is noted by this Commission that the respondent has had serious problems in complying with the provisions of §§1-210(a) and 1-225, G.S., for an extended period of time and that many of the problems resulted from an inability, or an unwillingness, on the part of its former administrative secretary and finance director to comply with those provisions. It is also noted that the respondent has filled the aforementioned positions with different individuals in an effort to be in full compliance with the requirements of the FOI Act.
Approved by Order of the Freedom of Information Commission at its regular meeting of May 9, 2007.
________________________________
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:
Board of Finance, Town
of Orange
c/o Vincent M. Marino, Esq.
Cohen and Wolf, P.C.
1115 Broad Street
Bridgeport, CT 06601
___________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2006-252FD/paj/5/11/2007