FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 5, 2009, at which time the complainant and the respondent 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.  It is found that, on June 16, 2009, the complainant was the executive director of Covenant Shelter of New London, Inc. 

 

            2.  It is found that, on June 16, 2009, the respondent held a meeting, entered into executive session during such meeting to discuss the complainant’s performance, then, during open session, voted to terminate his employment. 

 

3.  By letter dated July 8, 2009, and filed with the Commission on July 9, 2009, the complainant alleged that the respondent violated the Freedom of Information  [hereinafter “FOI”] Act by not providing notice to him that his performance was to be discussed in executive session and for “failing to disclose a reason for the executive session.”

 

4.  The respondent contends it is not a “public agency” within the meaning of §1-200, G.S., and that therefore it is not subject to the FOI Act.

 

5.  Section 1-200(1), G.S., defines “public agency” to mean:

 

“…(A) [a]ny executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official, or body or committee thereof but only with respect to its or their administrative functions; (B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222.”

 

6.  With respect to §1-200(1)(A), G.S., it is found that the respondent is not an executive, administrative or legislative office of the state, nor is it a New London agency, department, institution, bureau, board, commission, authority, official or committee of, or created by, the foregoing.  Accordingly, it is concluded that the respondent is not a public agency within the meaning of §1-200(1)(A), G.S.   

 

7.   With respect to §1-200(1)(C), G.S., §32-222, G.S., defines “implementing agency to mean “…(1) [a]n economic development commission, redevelopment agency; sewer authority or sewer commission; public works commission; water authority or water commission; port authority or port commission or harbor authority or harbor commission; parking authority or parking commission; (2) a nonprofit development corporation; or (3) any other agency designated and authorized by a municipality to undertake a project.…”

 

8.  It is concluded that the respondent is not an “implementing agency”, within the meaning of §1-200(1)(C), G.S.  

 

9.  With respect to whether the respondent is deemed to be the “functional equivalent” of a public agency within the meaning of §1-200(1)(B), G.S., the Supreme Court has adopted a “functional equivalent” test to determine whether an entity is a public agency.   Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980) (“Woodstock”).  Such test consists of the following four criteria: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.

 

            10.  Subsequently, in Connecticut Humane Society v. FOI Commission, 281 Conn. 757, 761 (1991), the Supreme Court elaborated that all four factors set forth in Woodstock are not necessary for a finding of functional equivalence, but rather that “all relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.”

 

            11.  With respect to the first criterion, it is found that the primary goal of the respondent is to meet the emergency housing needs of the people of New London County through the provision of emergency shelter.  Specifically, the respondent was formed to “provide for the spiritual welfare, nourishment, and shelter needs of the poor, the distressed and the underprivileged on an interim basis.”  It is concluded that the association does not presently perform a governmental function.

12.  With respect to the second criterion, it is found that the respondent derives approximately fifty percent of its revenue from the state Department of Social Services, and that the remainder of its revenue is derived from the United Way, other private grants, private foundations and individual donations.  It is also found that the Internal Revenue Service has deemed the respondent a 501(c)(3) organization.   It is concluded that the respondent does not receive a majority of its funds from government. 

 

13.  With respect to the third criterion, it is found that no government official has decision-making authority with regard to the respondent’s day-to-day affairs, or the composition of the respondent’s board of directors.  It is found that, aside from applicable local zoning laws, there is no government involvement or regulation of the respondent.  It is concluded that the third criterion is not met. 

 

14.  With respect to the fourth criterion, it is found that the respondent was voluntarily created in 1983 by two churches in New London, St. Mary Star of the Sea Church and St. James Episcopal Church.  The by-laws of the respondent state that the board shall consist of three or four parishioners of each church, as well as three or four non-parishioners, and that the pastors of each church shall serve as ex-officio members of the board.   It is concluded that the association was not created by government. 

 

                15.  It is concluded that, based on the totality of relevant criteria, the respondent is not the functional equivalent of a public agency within the meaning of §1-200(1)(B), G.S.  Accordingly, it is concluded that the respondent is not subject to the jurisdiction of the Commission. 

 

            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.

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 16, 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:

 

Stephen Santangelo

132 Shore Road  

Waterford, CT 06385

 

Board of Directors,

Covenant Shelter of New London, Inc.

C/o Kevin B. F. Emerson, Esq.

Brown Jacobson, P.C.

22 Courthouse Square

P.O. Box 391

Norwich, CT 06360

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-400FD/sw/12/21/2009