FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on March 16, 2009, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  A Report of Hearing Officer was issued on June 8, 2009.  The Commission considered such report at its regular meeting of July 8, 2009.   At such time, the Commission remanded the matter to the hearing officer for consideration of the plaintiffs’ request for the imposition of a civil penalty.  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 October 27, 2008, the complainants appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to conduct their meeting on September 30, 2008 in compliance with the FOI Act.  The complainants requested the imposition of a civil penalty against the respondents. 

 

3.         The respondents contend that the September 30, 2008 meeting was not a “meeting” pursuant to §1-200(2), G.S.; therefore, they were not required to comply with the FOI Act in conducting such meeting.

 

4.         Alternatively, the respondents contend that, if the September 30, 2008 session was a “meeting” pursuant to §1-200(2), G.S., the respondents complied with almost all of the FOI Act’s requirements for public meetings.

 

5.         Section 1-200(2), G.S., provides in relevant part:

 

“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…“Meeting” does not include: … communication limited to notice of meetings of any public agency or the agendas thereof.     

 

6.         It is found that the respondent town council conducted a public hearing on September 23, 2008, concerning whether to appropriate $105,000 for “conceptual design and planning related costs for the proposed Glastonbury-East Hartford elementary magnet school.”

 

7.         It is found that the public hearing revealed considerable public interest and debate on the magnet school issue.  It is found that at the end of the evening, the town council continued the public hearing until its next regular meeting on October 14, 2008, at which time the respondent chairman of the town council promised to create a FAQ sheet to be available to the public to guide the discussion at the October 14, 2008 hearing. 

 

8.         It is found that the respondent town manager called a special meeting of the Town Council Leadership Committee on September 30, 2008 in order to prepare the FAQ sheet promised to the public at the September 23, 2008 hearing. 

 

9.         It is found that the town council’s Leadership Committee is a sub-committee of the town council.  The respondents agree that the sub-committee is a public agency within the meaning of §1-200(1), G.S. 

 

10.     The respondents claim that the September 30, 2008 gathering was an “agenda meeting” to set the agenda for the October 14, 2008 meeting, and that in creating the FAQ sheet, they were setting the agenda, because the FAQ sheet would be reviewed at the October meeting.

 

11.     It is found that the notice of the September 30, 2008 session stated, “The purpose of the meeting is to discuss the October 14, 2008 continued public hearing on the proposed magnet school.”   

 

12.     It is found that the respondents met for 90 minutes, during which time they discussed the items to be included on the FAQ sheet to be presented at the October 14, 2008 continued public hearing.  It is found that the group discussed approximately 40 topics for the town manager to include in the FAQ sheet.  Following the committee’s discussion, the respondent town manager produced a seven-page document, single-spaced, which was a comprehensive review and synthesis of the issues.  For example, the FAQ sheet listed the town-owned sites under consideration, the council’s view of the education value of a planetarium as part of the school, the results of traffic studies, playground issues, and sewer issues.

 

13.     It is found that at the September 30, 2008 gathering, the committee also discussed the potential acquisition of a particular parcel of private property that might be suitable for the magnet school.  It is found that the respondents went into executive session to hold such discussion.

 

14.     It is found that the discussions at the September 30, 2008 session were substantive.  It is further found that, although the respondents’ discussion concerned, in a general sense, the agenda of the October 14, 2008 regular meeting, the discussion went beyond the kind of brief and simple communication limited to notice and agendas that is not a “meeting” under §1-200(2), G.S.    

 

15.     It is found that the September 30, 2008 session of the Leadership Committee was a meeting of a public agency to discuss matters over which it has supervision, control, jurisdiction or advisory power.  It is concluded, therefore, that the session was a “meeting,” within the meaning of §1-200(2), G.S. 

 

16.     The complainants allege that the respondents violated the FOI Act with respect to their meeting of September 30, 2008, by:

 

a.       Failing to file minutes;

 

b.      Asking the name of a member of the public before she was admitted into the meeting;

 

c.       Failing to provide immediate and open access to the meeting;

 

d.      Holding an improper executive session, and failing to file notice, an agenda, and minutes of the executive session;

 

e.       Voting in executive session, and failing to make a record of such vote in open session.

 

17.     With respect to the allegation described in paragraph 16.a, above, §1-225(a), G.S., stated, as of the date of the alleged violation:[1]  “minutes shall be available for public inspection within seven days of the session to which they refer.”

 

18.     It is found that the complainant Bergquist went to the town manager’s office two weeks after the September 30, 2008 meeting in order to request a copy of the minutes of that meeting.  It is found that she told an assistant to the town manager that she wanted a copy of the minutes, but was told that the town manager was at lunch and she would have to return later.  It is found that Ms. Bergquist returned at approximately 1:00 p.m., and was told that the town manager was on the phone, so she sat and waited.  It is found that the town manager came out of his office and told Ms. Bergquist that he did not have formal minutes because the meeting was an “agenda meeting.”  It is found that Ms. Bergquist reiterated her request for minutes several times, and eventually the town manager agreed to give her a copy of his handwritten notes of the meeting.

 

19.     It is found that the respondent town manager’s handwritten notes of the meeting indicate the time and place of the meeting and who was in attendance.  It is found that the notes indicate, generally, the topics discussed in the meeting, but fail to include the reason for going into executive session.  It is found, furthermore, that the handwritten notes are barely legible.

 

20.     It is found that the town manager gave the five pages of notes to his executive secretary to make a copy.  It is found that the secretary inadvertently did not make a complete copy of the notes, and, therefore, provided an incomplete copy to the complainant. 

 

21.     It is found that the minutes were not available for public inspection within seven days of the session to which they refer.  It is concluded, therefore, that the respondents failed to timely file minutes of the meeting, in violation of §1-225(a), G.S.

 

22.     With respect to the allegation described in paragraph 16.b, above, that the complainant Bergquist was asked her name before being admitted into the meeting, §1-225(e), G.S., provides, “No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance.”

 

23.     It is found that the executive assistant to the town manager asked the complainant’s name when she arrived at the meeting.  It is found that the complainant, though taken aback at the request, gave her name.  It is found that the assistant told the complainant to take a seat while the assistant went into the conference room where the meeting was taking place.  It is found that the assistant returned a few minutes later and told the complainant that someone would be with her shortly.  It is found that within a few more minutes, the chairperson of the town council came out of the conference room and escorted the complainant into the meeting, which was just beginning.

 

24.     It is found that the respondents failed to prove that the complainant was not required to provide her name as a condition to attending the meeting.  It is further found that the complainant was required to fulfill a condition precedent – waiting for an escort – before attending the meeting.

 

25.     It is concluded, therefore, that the respondents violated §1-225(e), G.S. 

 

26.     With respect to the allegation described in paragraph 16.c, above, that the respondents failed to provide immediate and open access to the meeting, §1-225(a), G.S., provides in relevant part:  “The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

27.     It is found, based on the facts described in paragraph 23, above, that for at least a few minutes,  the complainant was denied entry to the conference room where the meeting was underway. 

 

28.     It is concluded that the respondents violated §1-225(a), G.S. 

 

29.     With respect to the allegations described in paragraph 16.d and e, above, concerning the respondents’ executive session, §1-225(d), G.S., provides in relevant part that:

 

Notice of each special meeting of every public agency . . . shall specify … the business to be transacted.  No other business shall be considered at such meetings by such public agency.

 

30.     Section 1-225(f), G.S., provides:

 

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.

 

31.     Section 1-200(6)(D), G.S., permits an executive session for:

 

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[.]                                     

                                             

32.     Section 1-231(a), G.S., provides:

           

At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.

 

33.     It is found that the respondents informed the complainant that she must leave the committee meeting so that they could discuss a private site under consideration for acquisition for the magnet school, to determine whether the site could be discussed publicly at the October 14, 2008 meeting.  It is found that the respondent town council members did not want to disclose prematurely the location of such private site, believing that such disclosure would cause a likelihood of increased price.

 

34.     This Commission has determined in prior cases that all matters on an agency’s agenda must be sufficiently specific so that the public is fairly apprised of the matters to be considered at the meeting in question.  It is found that the notice of the special meeting, described in paragraph 11, above, failed to adequately inform the public that the respondents would be discussing private sites for the magnet school. 

 

35.     It is concluded that the respondents violated §1-225(d), G.S.

 

36.     It is found that the committee held the executive session at the end of the meeting.  It is found that the session lasted about five minutes, and that the meeting concluded after the executive session.  It is found that the attendance of all the respondents, including the superintendent of schools and the chair of the Board of Education, was necessary to present opinion pertinent to the magnet school site issue.

 

37.     It is found that the purpose of the respondents’ executive session was permissible under §1-200(6)(D), G.S.  It is found that the respondents concede that they failed to vote in open session to enter executive session and failed to state the reason for such executive session.  The respondents also concede that the minutes of the September 30, 2008 meeting – the town manager’s handwritten notes -- do not reflect that the respondents entered executive session or who was in attendance.

 

38.     Accordingly, it is concluded that the respondents violated §§1-225(f) and 1-231(a), G.S.

 

39.     With respect to the complainant’s request for the imposition of a civil penalty, §1-206(b)(2), G.S., provides, in relevant part:

 

…upon 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.

 

40.     It is found that the respondents in this case acted in violation of the FOI Act, but did not act without reasonable grounds within the meaning of §1-206, G.S.  Additionally, although the complainants maintain that agencies in the Town of Glastonbury have demonstrated a pattern of ignoring the FOI Act, a search of the Commission’s cases as reported on its web site, current to June 25, 2009, reveals only one case in the last 20 years in which the Glastonbury Town Council was named as a respondent, and that case was more than five years ago.  Evans v. Ethics Committee, Town Council, Town of Glastonbury and Policy and Ordinance Review Committee, Town Council, Town of Glastonbury, Docket #FIC 2003-127.

 

41.     Based on the facts of this case, the Commission declines to consider the imposition of a civil penalty.

 

42.     It is found that on January 8, 2009, prior to the evidentiary hearing in this matter, the complainants withdrew their complaint against Kurt P. Cavanaugh.  Accordingly, it is found that the respondent Cavanaugh is not responsible for the violations of the FOI Act described in paragraphs 21, 25, 28, 35, and 38, above.

 

43.     It is found that the respondents Richard Johnson, Alan Bookman, Richard Brown, and the Board of Education, Glastonbury Public Schools are not members of the respondent town council and are not responsible for the violations of the FOI Act described in paragraphs 21, 25, 28, 35, and 38, above. 

 

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

 

1.         Forthwith, the respondents shall create legible minutes of the September 30, 2008 meeting of the Leadership Committee.  In addition to the contents of the town manager’s handwritten notes, as described in paragraph 19 of the findings, above, such minutes shall include the reason for entering executive session, the vote taken to enter such executive session, and the names of all persons present for the executive session.  Such minutes shall also include votes taken in open session, if any. 

 

2.         Forthwith, the respondents shall file the minutes, described in paragraph 1 of the Order, above, in a place where they are available for public inspection during business hours, including lunchtime.

 

3.         Henceforth, the respondents shall strictly comply with §§1-225(a), (d), (e) and (f) and 1-231(a), G.S.

 

4.      The complaint against the respondents Kurt P. Cavanaugh, Richard Johnson, Alan Bookman, Richard Brown, and the Board of Education, Glastonbury Public Schools is dismissed.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of August 12, 2009.

 

____________________________

S. Wilson

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:

 

Ellen Bergquist

83 Heritage Drive

Glastonbury, CT 06033

 

Dana L. Evans

203 Mountain Road

Glastonbury, CT 06033

 

Karen L. Emerick    

175 Coldbrook Road

South Glastonbury, CT 06073

 

Richard Johnson, Town Manager,

Town of Glastonbury; Susan Karp, Chairperson,

Town Council, Town of Glastonbury;

Carol  H. Ahlschlager, Vice Chairperson,

Town Council, Town of Glastonbury;

Stewart Beckett III, Barbara C. Wagner,

Kurt P. Cavanaugh, as members, Town Council,

Town of Glastonbury; Town Council,

Town of Glastonbury; Alan Bookman,

Superintendent of Schools, Glastonbury Public Schools;

Richard Brown, Chairman, Board of Education,

Glastonbury Public Schools; and Board of Education,

Glastonbury Public Schools

C/o Morgan P. Rueckert, Esq.

Shipman & Goodwin, LLP

One Constitution Plaza

Hartford, CT 06103

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-688FD/sw/8/18/2009