FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on December 30, 2009, at which time the complainants and the 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.  It is found that the respondent board held a public hearing on September 11, 2009, to determine whether Priscilla Dickman violated the provisions of the Code of Ethics for Public Officials (hereinafter “public hearing”).

 

3.  It is found that James G. Kenefick, Jr., presided over the public hearing as Judge Trial Referee (hereinafter “JTR”).

 

4.  It is found that, on or about September 1, 2009, Priscilla Dickman’s counsel wrote a letter to the respondent’s general counsel raising the legality of the appointment of G. Kenneth Bernhard to the respondent board.  It is also found that the respondent’s counsel construed such letter as a request for an advisory opinion on the issues raised therein.

 

5.  It is found that at the commencement of the public hearing and prior to the presentation of evidence, Priscilla Dickman’s counsel asked the JTR to postpone the public hearing until such time as the respondent’s counsel responded to the issues raised in his letter described in paragraph 4, above.

 

6.  It is found that the JTR denied the motion described in paragraph 5, above.

 

7.  It is found that, Priscilla Dickman’s counsel then asked the respondent board to postpone the hearing for the same reasons described in paragraph 4, above (hereinafter the “motion” or “pending motion”).

 

8.  Section 1-92-15 of the Regulations of Connecticut State Agencies provides that:

 

In connection with any probable cause hearing or board hearing, for good cause shown, the judge trial referee or the board may extend any time limit prescribed or allowed by these rules except time limits prescribed by statute. All requests for extensions shall be made before the expiration of the period originally prescribed or as previously extended. (Emphasis Added).

 

9.  It is found that, over the objections of the respondent’s Ethics Enforcement Officer and pursuant to §1-92-15 of the Regulations of Connecticut State Agencies, the JTR asked the respondent board’s counsel whether she wished to consult with the board to discuss the pending motion.  It is found that the respondent board’s counsel stated that she wished to consult with the board.  It is also found that the JTR granted a recess to permit the respondent board to speak with its counsel on the pending motion.  It is further found that the JTR then ordered all Connecticut Network (CT-N) cameras be turned off prior to him exiting the hearing room.

 

10.  It is found that, after the JTR exited the hearing room and during the recess of the public hearing, a quorum of the respondent board also exited the hearing room and convened privately with its counsel (hereinafter the “gathering”).

 

11.  It is found that, after approximately eleven minutes of discussions with its counsel, the respondent board reentered the hearing room, the public hearing was reconvened by the JTR and the chairman of the respondent board publicly denied the motion to postpone the public hearing on behalf of the board.

 

12.  It is found, based on reasonable inference from facts on the record, that the gathering included deliberation and discussion on the pending motion made to the board by Priscilla Dickman’s counsel.

 

13.  By letter dated September 21, 2009 and filed with the Commission on September 25, 2009, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by denying the complainants access to a meeting held during a recess of the respondent’s September 11, 2009 public hearing and failing to post the minutes of such meeting on the respondent’s website within seven days.

 

14.  Given these findings of fact, the question of law presented by this case is whether the gathering was a “meeting” of a public agency as defined in §1-200(2), G.S.  Given the definition of “meeting” set forth at paragraph 16, below, the more specific question of law is whether the gathering was a “convening…of a quorum of a multimember public agency… to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power” under §1-200(2), G.S.

 

15.  With respect to the complainants’ claim that the respondent board held a closed meeting, §1-225(a), G.S., provides:

 

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. Within seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available.  Each such agency shall make, keep and maintain a record of the proceedings of its meetings.

 

16.  Section 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.”

 

17.  Section 1-80e, G.S., provides, in relevant part, that “[t]he Chief Court Administrator shall designate ten judge trial referees who shall be available to the Office of State Ethics to: (1) Preside over and rule at any hearing of the Office of State Ethics; and (2) make findings as to probable cause following any investigation conducted by the ethics enforcement officer of the Office of State Ethics.”

 

18.  Section 1-82(b), G.S., provides, in relevant part, that:

 

“If a judge trial referee determines that probable cause exists for the violation of a provision of this part or section 1-101nn, the board shall initiate hearings to determine whether there has been a violation of this part or section 1-101nn. …A judge trial referee … shall preside over such hearing and rule on all issues concerning the application of the rules of evidence, which shall be the same as in judicial proceedings. The trial referee shall have no vote in any decision of the board. All hearings of the board held pursuant to this subsection shall be open.” (Emphasis Added).

 

19.  Section 1-92-6a of the Regulations of Connecticut State Agencies states, in relevant part, that:

 

Upon a judge trial referee finding of probable cause, the board initiates hearings to determine whether there has been a violation of the Code.  The board rules on all issues of fact at a board hearing, but shall defer to the judge trial referee’s rulings on issues of law, procedure and evidence at such hearings.

 

20.  At the hearing and in their post-hearing brief on this matter, the complainants contended that the respondent violated the FOI Act when a quorum of the respondent board, consisting of nine members and its counsel, conducted the September 11, 2009 closed meeting outside of the hearing room.  The complainants specifically maintain that §1-92-15 of the Regulations of Connecticut State Agencies, which permits either the JTR or the board to extend most time limits prescribed by the respondent’s rules, contradicts the respondent’s claim that the JTR “runs the hearing in every respect.”  The complainants further maintained that the JTR did not grant the board permission to meet in closed session and had no authority to do so since §1-82(b), G.S., requires that all hearings of the respondent be open.  In addition, the complainants claimed that the discussion between the board and its general counsel was not properly conducted as an executive session in accordance with the procedures set forth in §1-225(f), G.S., and rejected the respondent’s arguments that such issue is not properly before the FOI Commission.  The complainants further maintained that the plaintiff failed to post the minutes of such closed meeting on its website within seven days. 

 

21.  The respondent essentially maintained that the FOI complaint should be dismissed because the September 11, 2009 discussion between the board and its counsel was not a meeting within the meaning of §1-200(2), G.S., but instead “a private discussion with its counsel” since the board did not have the ability to exercise “supervision, control, jurisdiction or advisory power” over the public hearing.  The respondent contended that the presiding JTR “lawfully granted permission for the board to engage in the September 11, 2009 off the record discussion with its counsel” under §1-80e, G.S., and §1-92-6a of the Regulations of Connecticut State Agencies.  The respondent specifically contended that the JTR acted, in this unique context, as the sole authority authorized under the Code of Ethics and the Regulations of Connecticut State Agencies to rule on issues of law, procedure and evidence within the context of the public hearing.  The respondent also contended that, after the presentation of evidence and oral argument at the public hearing, the board acts as the fact finder or jury and determines whether Priscilla Dickman violated the Code of Ethics.  The respondent contended that, in this “unique pairing of administrative and judicial authorities,” which cannot be located in any other jurisdiction in the nation, the “board has no independent authority while the [JTR] presides during these hearings to interfere with, or second guess the [JTR’s] rulings.”  The respondent maintained that, “to the extent … the FOI Commission may also have jurisdiction over the board, [the Commission] should decline to interfere with the [JTR’s] ruling in this matter based on the principle of comity.”  The respondent further contended that the complainants’ claim that the board failed to hold an executive session in accordance with the procedures set forth in §1-225(f), G.S., is not properly before the FOI Commission.

 

22.  Based upon the findings of fact in paragraphs 2 through 7 and 9 through 12, above, the Commission is not convinced that the gathering is excluded from the purview of the FOI Act.

 

23.  Despite the respondent’s arguments that the JTR acted as the sole authority authorized under the Code of Ethics and the Regulations of Connecticut State Agencies to rule on issues of law, procedure and evidence within the context of the public hearing, it is found that §1-92-15 of the Regulations of Connecticut State Agencies governing the respondent, permits the JTR or the board to extend any time limit prescribed or allowed by its rules prior to the expiration of the period originally prescribed for the public hearing.  It is also found that the discussion between the respondent board and its counsel on the pending motion described in paragraphs 11 and 12, above, pertained to a request made to the board to extend the time limit prescribed for the public hearing within the meaning of §1-92-15 of the Regulations of Connecticut State Agencies.  It is further found that the JTR acknowledged the authority of the respondent board to rule on the pending motion under §1-92-15 of the Regulations of Connecticut State Agencies and permitted a recess of the public hearing to allow the board to discuss and deliberate on the motion.

 

24.  It is found that when the respondent board gathered to discuss and deliberate on the pending motion, it was not acting strictly in the capacity of fact finder or jury with respect to the public hearing.  Contrary to the respondent’s contention, a quorum of the respondent board discussed and deliberated with counsel on a threshold procedural matter, distinguishable from the role of a sequestered jury charged with making factual findings based on the presiding judge’s instructions and interpretation of the law.

 

            25.  It is found that there is no evidence that by ordering that all CT-N television cameras be turned off and by then exiting the hearing room, the JTR authorized the respondent to exclude the public from its discussion and deliberations on the motion, since §1-82(b), G.S., requires that all hearings of the respondent board be open.

 

26.  It is found that the act between the respondent and its counsel of reaching the decision to deny the pending motion pertained to a matter over which the respondent has “supervision, control, jurisdiction or advisory power” within the meaning of §1-200(2), G.S.  It is found that the gathering the respondent characterized as a “quasi-judicial” proceeding “akin to a court trial” was a secret deliberation and constituted a “proceeding of a public agency” and “a convening or assembly of a quorum of a multimember public agency”, as well as “communication by or to a quorum of a multimember public agency” within the meaning of §1-200(2), G.S., and it is concluded, therefore, that the discussion between the respondent and its counsel was a “meeting” for purposes of the FOI Act.

 

            27.  It is found that nothing in the plain language of §1-225(a), G.S., permits the JTR to authorize a private off the record discussion between the board and its counsel, since all meetings of public agencies are public except for executive sessions, which was not claimed by the respondent in this matter.

 

28.  It is concluded, therefore, that the respondent violated the provisions of §§1-225(a), 1-200(2), and 1-82(b), G.S., by privately deliberating and discussing to deny the pending motion.

 

29.  With respect to the allegation concerning minutes as described in paragraph 13, above, it has already been concluded that the respondent is a “public agency.”  Accordingly, when such agency meets it is required to conduct its business in accordance with the provisions of the FOI Act.

 

30.  Section 1-225(a), G.S., provides, in relevant part, that “[w]ithin seven days of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available” and §1-210(a), G.S., requires that all public agencies “shall make, keep and maintain a record of the proceedings of its meetings.”

 

31.  It is found that the respondent has an Internet web site that is available.

 

32.  It is also found that the decision reached by the respondent board as described in paragraphs 10 and 11, above, was tantamount to a vote, and such vote should have been recorded in minutes of the September 11, 2009 meeting with its counsel.

 

33.  It is found that the respondent did not prepare and post on its website, minutes of the September 11, 2009 meeting with its counsel.

 

34.  It is concluded that by failing to prepare and to have minutes of the respondent’s September 11, 2009 meeting with its counsel available for public inspection on its web site within seven days of the public hearing, the respondent violated §1-225(a), G.S.

 

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

 

1.  Henceforth the respondent shall strictly comply with the open meetings and minutes requirements contained in §§1-210(a), 1-225(a), and 1-82(b), G.S.

 

2.  The respondent shall, within 14 business days of the issuance of the final decision in this matter, cause minutes to be posted on its web site of the September 11, 2009 meeting of the respondent and its general counsel.

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 2010.

 

 

__________________________

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:

 

Alexander Wood and the Manchester

Journal Inquirer

306 Progress Drive

PO Box 510

Manchester, CT 06045-0510

 

State of Connecticut, Citizens Ethics

Advisory Board, Office of State Ethics

c/o Barbara Housen, Esq.

State of Connecticut

Office of State Ethics

18-20 Trinity Street

Hartford, CT 06106

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2009-572FD/paj/9/22/2010