FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

            The above-captioned matter was heard as a contested case on January 24, 2008, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. The caption above has been amended to reflect the fact that nine different towns appoint the directors of the Estuary Transit District (“ETD”), and that the ETD is not a subdivision of the Town of Old Saybrook. 

 

            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)(A), G.S.

 

2.  By two emails dated and filed with the Freedom of Information Commission (“Commission”) on August 15, 2007, the complainant appealed to the Commission, alleging a wide variety of matters, including that the respondents violated the Freedom of Information Act (“FOIA”). The gravamen of the appeal for FOIA purposes was that the agenda for a meeting of the ETD held on August 9, 2007 stated only that the purpose for an executive session was for “personnel matters.” The complainant also alleged that, following the August 9, 2007 meeting, the respondent Chairman and another director persuaded two staff members to “take back” and therefore rescind letters of resignation, which had been submitted at the respondent Board’s meeting. By an additional email dated and filed with the Commission on August 23, 2007, the complainant again alleged that the agenda for a meeting of the ETD to be held on August 24, 2007 stated only that the purpose for an executive session was for “personnel matters.” The additional August 23, 2007 email also complained that the location of the meeting had been changed for “no reason.” The complainant sought relief in the form of an order declaring null and void the recision of the letters of resignation that were tendered at the August 9, 2007 meeting.

 

3.  By an additional email dated October 19, 2007 and filed with the Commission on October 23, 2007, the complainant again sought to amend his complaint. By letter dated and filed with the Commission on October 30, 2007, the respondents moved that the amendment dated October 19, 2007 be disallowed. The hearing officer ordered that the amendment dated October 19, 2007 was outside the scope of the order to show cause that had been issued on October 18, 2007 and that evidence concerning the amendment dated October 19, 2007 would be ruled irrelevant at the hearing. 

  

4.  Section 1-200, G.S., states in relevant parts:

 

(2)  “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.

 

….

 

(6)  “Executive sessions” means 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.

 

5.  Section 1-206, G.S., states in relevant parts:

 

(b)(2) In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend. (emphasis added)

 

….

 

(c) Any person who does not receive proper notice of any meeting of a public agency in accordance with the provisions of the Freedom of Information Act may appeal under the provisions of subsection (b) of this section. …. If such commission determines that notice was improper, it may, in its sound discretion, declare any or all actions taken at such meeting null and void. (emphasis added)

 

6.       Section 1-225, G.S., states in relevant parts:

 

(a) The 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. (emphasis added)

 

….

 

(d) Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, 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…. (emphasis added)

 

….

 

(f) 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. (emphasis added)

 

7.  At the hearing, the respondents offered to stipulate to some violations of FOIA, and the hearing officer requested that the respondents file a memorandum with the Commission concerning such stipulations. On February 19, 2008, the respondents filed a memorandum of over six pages, with two affidavits attached. Also at the hearing, the complainant alleged that an Ad Hoc Committee formed by the respondent board violated the FOIA. The complainant requested a null and void order concerning acceptance of the Ad Hoc Committee report at the August 24, 2007 meeting of the ETD. The complainant further alleged at the hearing that an agenda on file for the August 24, 2007 meeting of the ETD was not made immediately available to members of the public.  

 

8.  It is found that two executive sessions were held at the ETD meeting that was actually held on August 7, 2007 (not August 9, 2007, as alleged in the complaint). In the case of both executive sessions, the minutes do not reflect that any reason of any kind was set forth for the executive sessions. The notice for this special meeting had stated that an executive session would be held “to discuss employment issues.” The respondents’ February 19, 2008 memorandum stated that the executive session was called “to discuss strategy with regard to potential litigation by several employees.” Based upon these findings, the absence of contrary testimony at the hearing, and the affidavits of John Forbis and Leslie Strauss, it is found that no reason was stated at the meeting for the two executive sessions.

 

9.  It is also found that, in the case of the votes to enter both executive sessions, the minutes recorded that the motions “carried,” but in neither case was the vote of each director of the ETD recorded.         

   

10.  It is found that, at the August 7, 2007 meeting of the respondent Board, Ms. Halyna Famiglietti and Mr. Paul Tyrrell, tendered their resignations as members of the ETD staff. It is also found that there was no vote to accept the resignations. In an informal style, not unknown in small public agencies, the two staff members simply placed the letters of resignation on the directors’ conference table, where the letters stayed until the meeting adjourned.    

 

11.  It is found that the ETD had a complement of at least eight directors at the time of its August 7, 2007 meeting. Voting among the respondent directors is not based upon the conventional practice of one vote for one director. Pursuant to bylaws that incorporate a proportional concept of votes cast by each director based upon the population of the town that the director represents, at least five directors must be present to constitute a quorum.

 

12.  It is found that the respondent Chairman (Doris Sanstrom), director Leslie Strauss, and perhaps another member of the respondent board met with Ms. Halyna Famiglietti and Mr. Paul Tyrrell following the meeting and persuaded them to “take back” and therefore rescind their letters of resignation.                  

 

13.  It is found that the respondent board created the Ad Hoc Committee at its August 7, 2007 meeting, with the committee comprised of three directors including the chairperson of the ETD (Virginia Zawoy, Doris Sanstrom and John Forbis). As candidly set forth in the respondents’ February 19, 2008 memorandum, the Ad Hoc Committee held three meetings during the month of August that were not noticed and concerning which there were no minutes, as required by the FOIA. One of the members of the Ad Hoc Committee, Mr. John Forbis, drafted an outline of employment restructuring options three days after the final meeting of the Ad Hoc Committee.

 

14.  It is found that the respondents’ February 19, 2008 memorandum offered to reconstruct minutes of the three meetings of the Ad Hoc Committee to the extent possible. It is further found that the Ad Hoc Committee was officially disbanded on February 15, 2008. It also noted that the ETD had: 1) hired an outside recorder, experienced in public meetings, to create minutes and have them timely filed and available to the public; and b) scheduled an FOIA workshop with the FOIC’s education director.

 

15.  It is found that neither the complaint dated August 15, 2007 nor the amendment to the complaint dated August 23, 2007 fairly alleged that the Ad Hoc Committee violated the FOIA or that an agenda for the August 24, 2007 meeting of the ETD was not available to the public. As discussed at paragraph 7, above, these issues were raised for the first time at the hearing.

 

16.  It is found that an agenda and a revised agenda were prepared more than twenty-four hours prior to the meeting of the ETD held on August 24, 2007. The revised agenda provided for an “executive session to discuss employment issues,” and a copy was hand delivered to the complainant on August 24, 2007.

 

17.  It is found that the complainant did, in fact, attend the meeting. However, no executive session was held at the August 24, 2007 meeting. Following a presentation of the outline drafted by Mr. Forbis and a subsequent discussion that evolved beyond the outline, a vote was held to request that the complainant “relinquish” his position as executive director within two weeks, so that the complainant and the respondent Board could “negotiate an amicable settlement agreement.” It is found that the respondent Board never voted to accept the report of the Ad Hoc Committee at the August 24, 2007 meeting of the ETD.  

 

18.  The notice for the special meeting of the ETD held on August 24, 2007 stated that the meeting would be held at the Acton Public Library, where, in fact, it was held. The location of the meeting was only “changed”, as alleged by the complainant, in the sense that the location of the August 24, 2007 special meeting was different from the location of the regular meetings.                

 

19.  Based upon the factual findings at paragraph 8, above, it is concluded that the failure at the August 17, 2007 meeting of the ETD to state a reason as defined in §1-200, G.S., for the two executive sessions constituted a violation of §1-225(f), G.S. 

 

20.  Based upon the factual findings at paragraph 9, above, it is concluded that the failure at the August 24, 2007 meeting of the ETD to record the vote of each director on each of the motions to enter the two executive sessions constituted a violation of §1-225(a), G.S.

 

21.  Based upon the factual findings at paragraphs 10, 11 and 12, above, it is concluded that there was no quorum present when two or at most three members of the respondent board met with Ms. Halyna Famiglietti and Mr. Paul Tyrrell following the August 7, 2007 meeting of the ETD. There was therefore no unnoticed “meeting” of the ETD, as the term “meeting” is defined at §1-200(2), G.S. Based also upon the factual findings at paragraph 12, above, and at paragraph 13, above, concerning the membership of the Ad Hoc Committee, it is concluded that the complainant failed to prove that the meeting with Ms. Halyna Famiglietti and Mr. Paul Tyrrell was an unnoticed “meeting” of the Ad Hoc Committee, as the term “meeting” is defined at §1-200(2), G.S.   

 

22.  Because there are no FOIA requirements concerning how and when letters of resignation can be rescinded, there was no violation of the FOIA when these actions took place. Based upon the terms of §1-206(b)(2) and (c), G.S., there are no grounds for an order declaring null and void the rescinding of the letters of resignation that were tendered at the August 9, 2007 meeting.                     

              

 23.  Based upon the factual finding at paragraph 15, above, that the complaint as amended did not fairly allege that the Ad Hoc Committee violated the FOIA, these allegations raised at the hearing will not be considered. Based upon the additional factual finding at paragraph 15, above, that the complaint as amended did not fairly allege that an agenda for the August 24, 2007 meeting of the ETD was not available to the public, this allegation raised at the hearing also will not be considered.

 

24.  Based upon the factual findings at paragraph 18, above, there was no violation of the requirement that the notice of a special meeting state the location of a meeting, as set forth in §1-225(d), G.S. 

 

25.  Based upon the factual findings at paragraph 17, above, especially that no executive session was even held at the August 24, 2007 meeting, it is concluded that, contrary to complainant’s allegation in his supplemental August 23, 2007 email, there was no violation of the requirement to state a reason for an executive session, as set forth in §1-225(f), G.S. Moreover, there is no FOIA requirement that the agenda for a meeting state the purpose of an executive session. Pursuant to §1-206(b)(2), G.S., the Commission confirms the FOIA actions of the respondents at their August 24, 2007 meeting.

 

26.  Based upon the factual findings at paragraph 17, including that the complainant was not denied the right to attend the meeting of August 24, 2007, and because there was no evidence that the notice was improper, the Commission declines, pursuant to §1-206(b)(2) and (c), G.S., to issue an order declaring null and void votes taken at the August 24, 2007 meeting of the ETD. Indeed, there was a full discussion of the outline drafted by Mr. Forbis and a subsequent discussion that evolved beyond the outline, at a properly noticed, public meeting of the ETD. Subsequently, there was a public vote based upon that discussion.  

 

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

 

1.  Henceforth, the respondent board shall, prior to entering an executive session, state at its meetings the reason for any executive session as the reason is defined in §1-200, G.S., and shall record the vote of each director of the ETD on all motions.  

 

2.  The Commission commends the respondents for their February 19, 2008 memorandum, which forthrightly assisted an efficient organization of this case. While there is no conclusion of a violation upon which the Commission could base an order, the respondents’ offer to reconstruct minutes of the three meetings of the Ad Hoc Committee to the extent possible would be a constructive voluntary action. The other steps the respondents have taken on their own initiative corroborate their stated goal of improving their FOIA compliance.      

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 26, 2008.

 

________________________________

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:

 

Bradley Beecher

385 Main Street

Old Saybrook, CT 06475

           

Chairman, Board of Directors, Estuary

Transit District; and Board of Directors,

Estuary Transit District

c/o John M. Letizia, Esq.

Letizia, Ambrose & Falls, P.C.

One Church Street

New Haven, CT 06510

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-435FD/paj/3/31/2008