FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 28, 2010, at which time the complainants 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(a), G.S.

 

            2.  By letter of complaint filed February 4, 2010, the complainants appealed to the Commission, alleging that the respondents violated the open meetings provisions of the FOI Act when, on January 12, 2010, they deliberated privately on the matter of Office of State Ethics Docket No. 2007-24, In The Matter Of A Complaint Against Priscilla Dickman, and when they failed to post and make available the minutes of those deliberations.

 

            3.  It is found that Dickman was accused of violating §§1-84(b) and (c), G.S., by using her public position to obtain financial gain for herself, and for accepting other employment that impaired her independence of judgment as to her official duties or employment.

 

            4.  It is found that the Enforcement Division of the Office of State Ethics investigated the complaint and brought the alleged ethics violations before a judge trial referee (“JTR”) assigned by the Chief Court Administrator for a probable cause hearing.

 

5.  It is found that the JTR found probable cause to believe the allegations against Dickman, at which time the entire investigation of Dickman became public pursuant to §1-82a(e), G.S., which provides in relevant part:

 

The judge trial referee shall make public a finding of probable cause not later than five business days after any such finding. At such time the entire record of the investigation shall become public …. [Emphasis added.]

 

6. It is found that the respondents then met on September 11,16, 24, and 29, 2009; November 10 and 12, 2009; and January 5 and 12, 2010, to hear the Dickman complaint, pursuant to §1-82(b), G.S., which provides in relevant part:

 

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, who has not taken part in the probable cause determination on the matter shall be assigned by the Chief Court Administrator and shall be compensated in accordance with section 52-434 out of funds available to the Office of State Ethics and 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. At such hearing the board shall have the same powers as the Office of State Ethics under subsection (a) of this section ….  The judge trial referee shall, while engaged in the discharge of the duties as provided in this subsection, have the same authority as is provided in section 51-35 over witnesses who refuse to obey a subpoena or to testify with respect to any matter upon which such witness may be lawfully interrogated, and may commit any such witness for contempt for a period no longer than thirty days. The Office of State Ethics shall make a record of all proceedings pursuant to this subsection. … The board shall find no person in violation of any provision of this part or section 1-101nn except upon the concurring vote of six of its members present and voting. No member of the board shall vote on the question of whether a violation of any provision of this part has occurred unless such member was physically present for the duration of any hearing held pursuant to this subsection. Not later than fifteen days after the public hearing conducted in accordance with this subsection, the board shall publish its finding and a memorandum of the reasons therefor. Such finding and memorandum shall be deemed to be the final decision of the board on the matter for the purposes of chapter 54. The respondent, if aggrieved by the finding and memorandum, may appeal therefrom to the Superior Court in accordance with the provisions of section 4-183.

            7.  It is found that the respondents’ hearings were presided over by JTR James G. Kennefick, Jr., and that the last such hearing commenced on January 12, 2010.

            8. It is found that JTR Kennefick instructed the respondents at the January 12 hearing that their deliberations were, as a matter of law, part of the hearing. When they were ready to begin deliberating, he directed them as follows:

   This will conclude the public portion of this hearing, and I’m going to ask you to retire to deliberate ….. But before you do that, let me just point just for the Board’s information, I’m going to point to you in the regulation 1-92-31(g)(k). G states that the Board hearing shall commence upon the presentation of evidence to the Board for its consideration, which I think was back on September 11, if I got that date right. The Board hearing shall be concluded upon a finding of violation or a lack thereof, and if violation has occurred, the imposition of penalties as appropriate. So the hearing is not concluded until you make your finding and impose penalties, if appropriate. [Emphasis added].

Transcript of January 12, 2010 hearing at page 119-120.

            9.  JTR Kennefick’s language leaves some room for disagreement as to whether he believed that the Board’s deliberations were required to be conducted privately. On the one hand, he expressed that the “public portion” of the hearing was concluded, and that the Board was to “retire” to deliberate.[1] On the other hand, he was certainly aware of the requirement in §1-82(b), G.S., that “[a]ll hearings of the board held pursuant to this subsection shall be open,” and he instructed the Board that the hearing wasn’t over until they concluded their deliberations and made their findings.

 

10. It is also apparent that JTR Kennefick did not consider that he retained a role in the Board’s hearing and deliberation once the evidentiary portion of the hearing was closed:

 

MR. BERNHARD: … one last question. In the event, and I know there’s a lot of information for us to digest, in the event we somehow come to a conclusion today, does that go back on the record and will you need a court reporter?

THE COURT:       I don’t believe so. I think once you reach your conclusion you have to issue your memorandum of – well, I’ll go back and –

MR. BERNHARD:  But nothing is done publicly, it’s just done in writing within 15 days.

THE COURT: That’s my understanding, and I think Attorney Housen can advise you on that.

MS. HOUSEN: I could follow up with the Chair.

THE COURT: That’s correct. So we’re not going to go back on the record. The hearing will end once you make your findings and your memorandum, and then it gets published within –

MS. HOUSEN:     Within 15 days.

THE COURT: Within 15 days.

MS. HOUSEN: And that will be the public record of the findings.

THE COURT: Yes, that’s correct.

 

January 12, 2010 transcript pp. 126-127. [Emphasis added.]

 

11.  At the respondents’ January 12 hearing, Dickman, through counsel, objected to the respondents’ conducting their deliberations privately, and requested, pursuant to §1-225(a) and 1-200(6), G.S., that since the respondents were discussing Dickman’s conduct as a state employee, that they conduct that discussion in the open.

 

12.  Section 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.”

 

13. Section 1-200(6)(A), G.S., provides that an agency may convene in executive session for:

 

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 …. [Emphasis added.]

 

14.  In response to Dickman’s counsel’s request at the Board’s January 12, 2010 hearing, that the Board deliberate publicly concerning her, counsel for the respondents argued pointedly that it was her opinion that the respondents’ hearing was not governed by the FOI Act, and that therefore the respondents were not obligated to deliberate publicly, or to invoke an appropriate executive session provision.

 

15.  The respondents now contend in their October 28, 2010 Response to Freedom of Information Complaint (the “Response”) that:

 

Both the transcript and the CTN recording make clear that the board did not on its own simply decide to have private deliberations, but deliberated in accordance with the presiding judge’s instructions (See Appendix A, January 12, 2010 Dickman hearing – judge’s instructions begin at p. 105, line 13; see also p. 126, lines 2-4, for judge’s order to deliberate in private).

 

16.  The Commission has carefully reviewed the cited portions of the transcript. The JTR instructs the respondent board that:

 

·         they are the triers of fact and that they are to determine the facts by a careful consideration of the record before them;

·         what he says to them concerning the law is binding on them;

·         he does not have any preference in the outcome of the case;

·         it was his duty to apply the rules of evidence;

·         it is the Board’s duty to weigh the evidence and gauge the credibility of witnesses;

·         both direct and circumstantial evidence may be considered, and what inferences may be drawn from the evidence,

·         the state has the burden of proof, and the standard the state must meet is the preponderance of the evidence;

·         he will provide the meaning of the statutes that Dickman was charged with violating, 1-84-C and 1-84-B, and the applicability of a civil penalty.

 

 He further instructed the Board that:

 

·         it was their duty to express their views to the other Board members and listen to theirs;

·         that they could not discuss the case unless all members of the Board were present;

·         that they could take breaks and recesses;

·         that they could find no violation except upon the concurring vote of six of its members present and voting;

·         that the Board had to publish its finding and a memorandum of reasons therefore within 15 days after the hearing was concluded;

·         that they could have the aid and advice of general counsel and the legal division of the Office of State Ethics during deliberations and when publishing their findings and memorandum of reasons.

 

17. However, it is found that JTR Kennefick’s only comment about the Board deliberating privately was, “It’s my opinion that the Board may deliberate in private, and they do so starting now.” January 12 transcript at 126 [Emphasis added.]

 

18. It is also found that none of JTR Kennefick’s instructions conflicted with the respondents’ obligations under the FOI Act.

 

19. Although JTR Kennefick approved of the Board deliberating in private, and apparently expected they would do so, he did not direct or instruct them to do so, and indicated that his role was at an end when the Board commenced the deliberation phrase of their hearing.

 

20. The Commission understands that the respondents may have understood JTR Kennefick’s comments differently at the time, particularly given the amount of information they were required to absorb, and their unique role in their own proceedings. The Commission also understands the respondents’ preference for private deliberation. However, it is found as a factual matter that JTR Kennefick did not require the respondents to deliberate privately, and that their choice to do so was their own, not one dictated by the JTR or any other authority.

 

21. Although the respondents have characterized their role in their proceedings as that of a jury, because they were similarly restricted to a fact-finding role, it is found and concluded that they had powers considerably beyond those granted to a jury.

 

22.  For example, it is concluded as a matter of law that the respondent board retained during the entirety of the hearings it conducted, pursuant to 1-82(b), G.S., the powers granted it under §1-82(a), G.S., including the power to subpoena witnesses and require the production of documents.

 

            23.  It is also found that the respondent board exercised the power to ask questions of counsel for Dickman, such as explaining why evidence should not be given any weight.   

 

            24. Additionally, it is found and concluded that the respondent board retained the power to have counsel with them while they deliberated, an option not available to jurors in court.

 

            25. Further, it is found and concluded that the respondents actually authored a Finding, Memorandum and Order Dated January 15, 2010 that was their own decision, and was not subject to approval by or submission to JTR Kennefick, whose role in the proceeding had by then ended.  Again, this is a role considerably beyond that exercised by a jury in a trial.

 

            26. Finally, it is found and concluded that the respondents are not, like jurors, private citizens pulled from their ordinary responsibilities to be the fact finders in a trial in which they otherwise have no legal interest or role. Rather, they are appointed public officials whose statutory duty is to decide matters such as the Dickman case.  See §1-80(a), G.S. It is further found that the respondents, like other public officials who belong to multi-member public agencies, are accustomed to the public scrutiny of their meetings and deliberations generally, and should, unlike jurors in a trial, be able to perform their duties in the spotlight.

 

            27.  The complainants maintain that the respondents violated the FOI Act by closing their deliberations to the public, and by failing to make minutes of the deliberation portion of their meeting.

 

            28.  The respondents maintain that the entirety of their hearing, including their deliberation, is not subject to the FOI Act because of the role the JTR plays in the proceeding, because their proceeding is a hybrid administrative-judicial proceeding, because they were acting as a jury which must deliberate privately, and because of our Supreme Court’s decision in New Haven v. FOIC, 192 Conn. 183 (1984).

 

            29. Section 1-200(2) defines the term “meeting” under the FOI Act as follows:

 

    “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. 

 

30.  Section 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. Not later than seven days after the date 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, except that no public agency of a political subdivision of the state shall be required to post such minutes on an Internet website.  Each public agency shall make, keep and maintain a record of the proceedings of its meetings.

 

            31.  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.

 

            32. Section 1-200(6), G.S., provides:

 

“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 …. [Emphasis added.]

 

            33.  The respondents contend that their hearings are not subject to the FOI Act because it is a hybrid proceeding—that is, a hearing by an administrative agency that is presided over by a JTR with the power to rule on the admission of evidence and the meaning of statutes.

 

            34.  The respondents concede that, but for the role played by the JTR in their hearings, and the statutes and regulations governing the role of the JTR, the meetings of the respondents are subject to the FOI Act.

           

35.  However, there is no obvious way in which the function of a JTR in presiding over the respondents’ hearing removes that hearing from the requirements of the FOI Act. The Commission notes that the respondent’s hearing was, although presided over by a JTR, an administrative hearing by a multi-member administrative agency that was appealable, like any administrative agency decision, to the Superior Court pursuant to the Uniform Administrative Procedure Act. See, e.g., §1-87, G.S. (“Any person aggrieved by any final decision of the board, made pursuant to this part, may appeal such decision in accordance with the provisions of section 4-175 or section 4-183.”)

 

36. It seems evident that the General Assembly, in effecting changes to the statutes governing the enforcement of state ethics laws, sought to impose more oversight and controls over the respondents than had previously existed over the predecessor agency, the State Ethics Commission. However, there is no suggestion, and no reason to believe, that the General Assembly in doing so intended to remove the respondents’ hearings from the requirements of the FOI Act.

 

37.  Specifically, the Commission notes that the General Assembly took away the predecessor Ethics Commission’s ability to make its own probable cause determinations and assented, through its acceptance of § 1-92-6a of the Regulations of Connecticut State Agencies, to the Citizen’s Ethics Advisory Board’s surrender of the authority to interpret the statutes governing violations of state ethics laws at hearings on alleged violations of those laws.  The new scheme of statues and regulations requires that a JTR make any findings concerning probable cause and that another JTR have the final authority over the interpretation of ethics statutes in hearings on alleged violations.  It is likewise notable that the General Assembly did not change the provision of  § 1-82(b), G.S., making a JTR the presiding officer at hearings on alleged ethics code violations that follow a finding of probable cause and giving that JTR authority to rule on issues concerning the application of the rules of evidence at such hearings.

 

38. It seems unlikely that the General Assembly, by limiting and circumscribing the powers of the respondents, and imposing oversight and authority in the form of a JTR, simultaneously intended to take the respondents’ hearings out of the public eye and public accountability.

 

39. If anything, the General Assembly’s imposition of controls over the respondents is consistent with a continuation of the FOI Act’s requirements that its proceedings, except for those preceding a finding of probable cause, and except for executive sessions, be open to the public.

 

40.  The respondents maintain that they have no power over whether their hearings are open to the public, because the JTR is given presiding power over the respondents’ proceedings. The respondents further maintain that any attempt to conduct their deliberations openly would have been in contradiction to the JTR’s instructions and order, and an usurpation of his authority over the proceedings.

 

41.  As more fully explicated above, however, it is found that the JTR did not direct or instruct the respondents to deliberate privately. At most, he expressed his opinion that they “may” do so, not that they were required to do so.

 

42. Further, it is found that the JTR’s role in the proceedings ended once the evidence and argument portion of the hearing closed and the respondents commenced their deliberations. Whether the respondents chose to deliberate publicly or privately was exclusively their decision, and in no way could be interpreted as interfering with the JTR’s authority, which had expressly concluded.

 

            43.  It is therefore concluded that the fact that a JTR presided over the evidence and argument portion of the January 12 hearing did not remove the deliberation portion of that meeting from the requirements of the FOI Act.

 

44.  The respondents additionally maintain that their January 12 hearing was not a meeting subject to the FOI Act.

 

            45.  However, §1-200(2), G.S., cited above, expressly includes as a meeting within the FOI Act’s definition “any hearing or proceeding … to discuss or act.”

 

            46.  It is therefore found and concluded that the respondents’ January 12 hearing was a “meeting” within the meaning of §1-200(2), G.S.

 

            47.  The respondents next contend that the deliberation portion of their January 12 hearing was not subject to the FOI Act open meetings requirement pursuant to New Haven v FOIC, 192 Conn. 183 (1984).

 

            48. It is true that our Supreme Court in New Haven v. FOIC found no violation of the FOI Act when a public agency convened in executive session to discuss a police officer’s termination following an evidentiary hearing that had been conducted publicly.

 

            49. However, a careful reading of New Haven reveals that the Supreme Court’s decision in that case turned on the fact that the police officer had not requested that the deliberation portion be open to the public, not that the New Haven Board of Police Commissioner’s deliberation was outside the requirement of obtaining the consent of the employee discussed.                    

After we granted certification for review pursuant to General Statutes (Rev. to 1981) § 51-197b, the plaintiffs, who are the city of New Haven and its board of police commissioners, appealed from a judgment dismissing their appeal of an order of the state freedom of information commission (FOIC) invalidating the discharge of a police officer, the defendant Louis W. Gold. The FOIC and the trial court concluded that, at the disciplinary hearing before the police commissioners on January 8, 1979, there was a violation of Gold's right to require that the discussion which led to his discharge be held at an open meeting in accordance with General Statutes § 1- 18a(e)(1) [now 1-200(6)]. In this appeal the plaintiffs claim that § 1-18a(e)(1) should not be construed, as the FOIC and the trial court held, to prohibit executive sessions from which the public is excluded whenever the public officer or employee whose employment, performance or dismissal is under consideration has requested an open meeting. Although we decline to adopt such a construction of the statute, we are persuaded from our review that Gold failed to make an effective request as required by § 1-18a(e)(1) that the deliberations of the commissioners which preceded his discharge should be held in public. Accordingly, we find error and remand for further proceedings in accordance with part III of this opinion. [Emphasis added.]

192 Conn. at 184-85.

                50. Later in its opinion, the New Haven Court specifically held that the predecessor statute to §1-200(6), G.S., does require a board that had already held an open evidentiary hearing  to additionally hold its deliberations after that hearing in public if the subject of the hearing so requested:

 In support of their claim that the Freedom of Information Act should be construed not to require that the deliberations and votes of public agencies in personnel matters be conducted at an open meeting, the plaintiffs cite cases which have reached such a result in other jurisdictions where similar legislation has been considered. Dupont Circle Citizens Assn. v. District of Columbia Board of Zoning Adjustment, 364 A.2d 610, 613-14 (D.C.App.1976); Sullivan v. Northwest Garage & Storage Co., 223 Md. 544, 165 A.2d 881 (1960). These decisions held that the so-called "sunshine" laws under consideration, which contained general provisions that "all meetings" of the public agencies involved must be open to the public did not apply to the conduct of deliberations at executive sessions held after the conclusion of the public hearing. None of these statutes contained a provision comparable to § 1-18a(e)(1), which includes the discussion of certain personnel matters among the purposes for which executive sessions are authorized, but expressly permits the individual concerned to "require that discussion to be held in an open meeting." Although we have perceived a legislative intention reflected in the Freedom of Information Act "to balance the public's right to know what its agencies are doing with the governmental and private needs for confidentiality," we have also recognized that the general rule is disclosure and that exceptions will be narrowly construed. Wilson v. Freedom of Information Commission, 181 Conn. 324, 328-29, 435 A.2d 353 (1980). Section 1-18a(e)(1) [now §1-200(6)] is clearly applicable to the circumstances of this case and must be construed to have prohibited the board from conducting their deliberations which led to Gold's dismissal at a meeting closed to the public provided that he properly notified the board of his intention to have those deliberations open to the public. [Emphasis added].

                51.  It is therefore concluded that New Haven v. FOIC does not permit an agency to conduct an executive session pursuant to §1-200(6), G.S., over the objection of the individual who is the subject of that session.

 

                52.  It is further concluded that the respondents violated §1-225(a) and 1-200(6), G.S., by deliberating privately as part of their January 12, 2010 hearing concerning Dickman.

 

                53.  It is found that the respondents did not post or make available minutes of their deliberations at their January 12, 2010 hearing, and thus also violated §1-225(a), G.S.    

 

                54.  The Commission is cognizant of the practical difficulties involved in the complex interplay between the Code of Ethics and the Freedom of Information Act, particularly when new statutes imposing a judicial authority are involved, and finds no bad faith on the part of the respondents in this case, and therefore no reason to consider the imposition of a civil penalty. The Commission does not believe that justice would be served by the consideration of such a remedy in this case, which involved a long, difficult and conscientious hearing into the Dickman matter. The Commission does not seek to impose unnecessary constraints upon the respondents, nor create any conflict with the Judge Trial Referees with whom the respondents are obligated to work. However, the Commission sees no conflict between the authority of the Judge Trial Referee during the evidentiary portion of the respondents’ hearings, and the requirements of the FOI Act after the Judge Trial Referee’s role as presiding officer is concluded. The Commission observes that the respondents’ own statute explicitly requires that its hearings be open after probable cause is found, that our Supreme Court has held that similar deliberations may not be conducted privately over the objection of the individual concerned, and that the respondents diminish their own role and responsibilities when they characterize themselves as a mere jury. This Commission has historically enjoyed a sister agency relationship with the respondents and their predecessors, and has the highest respect for the respondents’ duties and responsibilities as the state agency responsible for the enforcement of our code of ethics. The Commission prays that the respondents continue their commendable work, and accept this decision in the spirit in which it is rendered.

 

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

 

            1.  Henceforth the respondents shall strictly comply with the requirements of §§1-225(a) and 1-200(6), G.S.

 

            2.  The respondents shall forthwith create, file and post minutes of the deliberation portion of their January 12, 2010 meeting. 

 

 

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of January 28, 2011.

 

 

__________________________

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

 

Chairman, State of Connecticut,

Citizens Ethics Advisory Board; and

State of Connecticut,

Citizens Ethics Advisory Board

c/o Barbara Housen, Esq.,

Brian O’Dowd, Esq., and

Peter Lewandowski, Esq.

Office of State Ethics

18-20 Trinity Street, Suite 205

Hartford, CT 06106

 

Priscilla Dickman

2534 Boston Turnpike

Coventry, CT 06238

 

 

 

 

____________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-074/FD/paj/1/31/2011