FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

                                                                                     

The above-captioned matter was heard as a contested case on May 12, 2008, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.  By letter of complaint filed December 20, 2007, the complainant, the former chairman of the North Haven Board of Finance,  appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by conducting an illegal and unnoticed meeting, and requesting the imposition of a civil penalty.    

 

3.  It is found that the respondent Audit Subcommittee is a committee of the town Board of Finance.

 

4.  It is found that the original purpose of the Audit Subcommittee was to recommend to the Board of Finance an accounting firm that would perform a forensic audit of alleged fraud in certain town departments, relating to arrest warrant applications made for certain town officials.

 

5.  It is found that the Board of Finance hired the firm of Kostin, Ruffkess & Company to perform the audit, and that the audit was performed by a partner in that firm, Joseph Centofanti.

 

6.  It is found that Mr. Centofanti submitted a draft forensic audit to the Board of Finance on September 15, 2007.  The Board of Finance reviewed the report in executive session on October 1, 2007, and then discussed the report, which was then made public, at a meeting on October 15, 2007.  As a result of municipal elections on November 6, 2007, the democrats won a majority on the Board of Finance.  The Board of Finance had been scheduled to meet on November 14, 2007, but that meeting was cancelled by the outgoing membership.

 

7.  It is found that, on November 20, 2007, the respondents Hallahan and Feinberg, together with Mr. Centofanti and Acting Finance Director Edward Swinkowski, met at the request of Mr. Feinberg, in order to bridge the gap between the Board of Finance’s last meeting on October 15, 2007 and its next scheduled meeting in December, when the new members would take office.

 

8.  It is found that the purpose of the meeting was to conduct a wide-ranging discussion of the results of the forensic audit, and whether that audit should be extended in time and to other town departments.  Messrs. Feinberg, Hallahan and Doheny all sought to explore and investigate the results of the forensic audit in preparation for the Board of Finance’s next scheduled meeting in December.  They had questions for Mr. Centofanti regarding the results of the audit and areas for future investigation, and asked Mr. Centofanti for his advice about expanding the investigation.  When Mr. Centofanti recommended looking into other cash accounts and going back further in time, Mr. Hallahan directed Mr. Swinkowski to do so.  Mr. Hallahan’s action was approved at the subsequent Board of Finance meeting.

 

9.  It is found that a quorum of the respondent Audit Subcommittee is two, and that two members of the Subcommittee were present.

 

10.  It is found that a quorum of the Board of Finance is four, and that three members of the Board were present.

 

11.  It is found that the respondents provided no notice of the November 20, 2007 meeting, that the meeting was not open to the public, and that the respondents created no minutes of that meeting.

 

            12.  Section 1-225, G.S., provided in relevant part, at the time of the complaint in this matter:

 

(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.

 

                        …

 

(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 …. 

 

13.  Section 1-200(2), G.S., defines “meeting” to mean:

 

…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….

 

14.  Section 1-200(2), G.S., further provides in relevant part: “‘Meeting’ does not include:  … an administrative or staff meeting of a single-member public agency ….”

 

15.  The respondents contend that the November 20, 2007 meeting was not a “meeting” within the meaning of §1-200(2), G.S., for three reasons.  First, they maintain that the Audit Committee no longer existed, having completed its task of recommending an accounting firm to perform the forensic audit.  Second, they argue that they understood that their meeting would only be subject to the FOI Act if a quorum of the Board of Finance was present, and for that reason they deliberately did not invite a quorum of the Board of Finance.  Third, they contend that they understood their meeting to be a “staff meeting.” 

 

16.  First, it is found that a quorum of the respondent Audit Committee was present at the meeting, whether or not that Committee went beyond the scope of its original mandate.

 

17.  Second, it is found that the three members of the Board of Finance in attendance at the November 20, 2007, meeting constituted a de facto subcommittee of the Board of Finance.  It is specifically found that the three members in attendance met to discuss or act upon a matter over which the Board of Finance had supervision, control, jurisdiction, or advisory power. 

 

18.  Third, it is found that, notwithstanding the attendance of a single staff member, the Acting Finance Director, at the respondent’s meeting, the meeting was called at the direction of the respondent Feinberg, and was not a “staff meeting” within the meaning of §1-200(2), G.S.  The Acting Finance Director was in attendance to provide information and to be given direction.  The meeting was the respondents’ meeting, not the Acting Finance Director’s meeting.

 

19.  It is therefore concluded that the November 20, 2007, meeting was a “meeting” within the meaning of the FOI Act, and that the respondents violated §1-225, G.S., by failing to notice the meeting, by failing to open the meeting to the public, and by failing to create minutes of the meeting. 

 

20.  The respondents contend that their intentions were honorable, and that they only sought to insure an effective transition between the old and new administrations.  While the Commission does not disagree that an effective transition is a worthy goal, it observes that the goal could have been better achieved by noticing the November 20, 2007 transition meeting, and conducting it in public.

 

21.  With respect to the respondent’s request for civil penalties, §1-206(b)(2), G.S., provides in relevant part:

 

[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. 

 

22.  It is found that the officials directly responsible for the denial of the public’s right to attend the November 20, 2007 meeting were given an opportunity to be heard at the hearing on this matter.

 

23.  It is found that the respondents’ violation of the FOI Act was based upon their misunderstanding of the significance of a lack of a quorum at their meeting, and of the scope of the meaning of the phrase “hearing or other proceeding” in §1-225(a), G.S.

 

24.  It is further found that the respondents were motivated primarily by a desire to continue the work of the forensic audit, not to conceal their actions from the public.

 

25.  It is therefore concluded that, while the respondents’ understanding of §1-225(a), G.S., was incorrect, it was not unreasonable, and no civil penalty should be imposed.  

 

 

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

 

1.   Forthwith, the Board of Finance shall create and make available minutes of the November 20, 2007 meeting.

 

2.  Henceforth, the respondents shall strictly comply with the provisions of §1-225, G.S. 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 12, 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:

 

Michael O. Peterson

55 Marlborough Road

North Haven, CT 06473

 

Michael Hallahan, member,

Audit Subcommittee, Board of Finance,

Town of North Haven;

Audit Subcommittee, Board of Finance,

Town of North Haven; and

Gerald Feinberg, member,

Board of Finance, Town of North Haven

c/o Christopher Y. Duby, Esq.

Assistant Town Counsel

22 Broadway

North Haven, CT 06473

 

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-696FD/paj/11/18/2008