FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

           

The above-captioned matter was scheduled to be heard on June 16, 2011, at which time the hearing was continued until the individual members of the Contract Arbitration Panel were added as respondents.  The matter was then heard as a contested case on July 28, 2011, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

            At the request of the parties, the Commission takes administrative notice of the legal arguments, evidence and final decision in Docket # FIC 2010-132, Jim Moore and the Waterbury Republican-American v. State of Connecticut, Department of Education, Contract Arbitration Panel; and State of Connecticut, Department of Education.

 

            After consideration of the entire record, the following facts are found and conclusions of law are reached:

 

            1.  The respondent Department of Education (Department) is a public agency within the meaning of §1-200(1), G.S.

 

2.  The respondent Contract Arbitration Panel (Panel) maintains that it is not a public agency within the meaning of §1-200(1), G.S.[1]

 

            3. Section 1-200(1), G.S., provides;

 

    “Public agency” or “agency” means: (A) Any 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. [Emphasis added.]

           

            4. Black’s Law Dictionary (5^th Ed. 1979) defines “committee” as:

 

A person, or an assembly or board of persons, to whom the consideration, determination, or management of any matter is committed or referred, as by a court or legislature. An individual or body to whom others have delegated or committed a particular duty, or who have taken on themselves to perform it in the expectation of their act being confirmed by the body they profess to represent or act for.

 

5. Section 10-153f, G.S., provides in relevant part:

 

(a)    There shall be in the Department of Education an arbitration panel of not less than twenty-four or more than twenty-nine persons to serve as provided in subsection (c) of this section. The Governor shall appoint such panel, with the advice and consent of the General Assembly, as follows: (1) Seven members shall be representative of the interests of local and regional boards of education … (2) seven members shall be representative of the interests of exclusive bargaining representatives of certified employees … and (3) not less than ten or more than fifteen members shall be impartial representatives of the interests of the public in general ….  Each member of the panel shall serve a term of two years, provided each arbitrator shall hold office until a successor is appointed ….  Persons appointed to the arbitration panel shall serve without compensation but each shall receive a per diem fee for any day during which such person is engaged in the arbitration of a dispute pursuant to this section. The parties to the dispute so arbitrated shall pay the fee in accordance with subsection (c) of this section.

…

 

(c)  (1)  [T]he commissioner shall order the parties … if there is no [mediated] settlement [pursuant to subsection (b) of this section] … to notify the commissioner of … the name of the arbitrator selected by each of them.  …  Within five days of providing such notice, the parties shall notify the commissioner of the … agreement on the third arbitrator appointed to the panel pursuant to [subdivision (3) of subsection (a) of this section]. …  If … the parties have not agreed on the third arbitrator … the commissioner shall select a third arbitrator, who shall be an impartial representative of the interests of the public in general. …  Whenever a panel of three arbitrators is selected, the chairperson of such panel shall be the impartial representative of the interests of the public in general.

 

      (2)   At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material and to argue on behalf of its positions. At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district ….

…

 

      (4)   After hearing all the issues, the arbitrators … shall … render a decision in writing, signed by a majority of the arbitrators … which states in detail the nature of the decision and the disposition of the issues by the arbitrators ….The decision by the arbitrators … shall be final and binding upon the parties to the dispute unless a rejection is filed in accordance with subdivision (7) of this subsection. …  The parties shall submit to the arbitrators … their respective positions on each individual issue in dispute between them in the form of a last best offer. The arbitrators … shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties ….

…

      (7)   The award of the arbitrators … may be rejected by the legislative body of the local school district ….  (A) [T]he commissioner shall select a review panel of three arbitrators … and (B) such arbitrators … shall review the decision on each rejected issue. …  [A]fter completion of such review, the arbitrators … shall render a final and binding award with respect to each rejected issue. …

 

      (8)   The decision of the arbitrators … shall be subject to judicial review ….  The superior court, after hearing, may vacate or modify the decision if substantial rights of a party have been prejudiced ….

 

(d) The … arbitrators … shall have the same powers and duties as the board [of labor relations] under section 31-108 for the purposes of mediation or arbitration pursuant to this section … and all provisions in section 31-108 with respect to procedure, jurisdiction of the Superior Court, witnesses and penalties shall apply.

…

 

 (f) The State Board of Education shall adopt regulations pursuant to chapter 54 concerning the method by which names of persons who are impartial representatives of the interests of the public in general are placed on lists submitted by the State Board of Education to the Governor for appointment to the arbitration panel established pursuant to subsection (a) of this section. Such regulations shall include, but not be limited to (1) a description of the composition of the group which screens persons applying to be such impartial representatives … (2) application requirements and procedures and (3) the selection criteria and process, including an evaluation of an applicant’s experience in arbitration. …

 

6.  Section 31-108, G.S., provides in relevant part:

 

For the purpose of hearings before the [State] [B]oard [of Labor Relations], the board shall have power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses. …  Witnesses summoned before the board … shall be paid the same fees and mileage allowances that are paid witnesses in the courts of this state ….

 

7.  It is found that the respondent Panel consists of three members, drawn from the pool of arbitrators maintained by the respondent Department pursuant to §10-153f(a) and (c), G.S.  One member was selected by the employer, a second by the employees’ collective bargaining unit, and the third by the first two arbitrators.

 

8.  It is found that the respondent Panel is a board of appointed individuals to whom the consideration and determination of contractual disputes between boards of education and teachers unions have been committed by the General Assembly.

 

9.  It is concluded that the respondent Panel is a committee of the respondent Department, and therefore a public agency within the meaning of §1-200(1), G.S.

 

10.  Although the complainants additionally maintain that the respondent Panel is the functional equivalent of a public agency, that category is typically reserved for hybrid public-private agencies. Little about the respondent Panel is private, other than per diem pay being provided by the collective bargaining unit. See §10-153f(a) and (c), G.S.  The Commission agrees with the complainants that the Panel performs a governmental function, is a creature of statute, and is highly intertwined with the respondent Department, which is at the core of the program. These facts would indeed satisfy the functional equivalent analysis required by §1-200(1)(B) and Woodstock Academy v. FOIC, 181 Conn. 544 (1980).  However, that analysis is unnecessary in light of the conclusion in paragraph 9, above.  Moreover, the lack of any significant private, as opposed to public, component in the Panel renders such an analysis pursuant to §1-200(1)(B), G.S., irrelevant, as it would be irrelevant to any public agency that already falls within the definition at §1-200(1)(A), G.S.

 

11.  The respondent Department maintains that it is not a proper party to this proceeding, citing Docket #FIC 2004-178, Williams v. Office of Labor Relations.

 

12.  In Williams, the Commission concluded that a hearing conducted by an arbitrator to resolve a grievance was not a meeting of the Office of Labor Relations, and that the Office could not therefore be held accountable for any violation of the Freedom of Information (FOI) Act violation that might have occurred at such a hearing.

 

13. However, Williams is clearly distinguishable. First, the issue in the instant case is not whether the Office of Labor Relations is a proper party, but whether the Department is.  The Office of Labor Relations is not in the same relationship to an arbitral board as is the Department. Second, the issue decided in paragraphs 8 and 9, above, whether the Panel is a committee of the Department, was not addressed in Williams. 

 

14.   Because the respondent Panel is a committee of the respondent Department, it is concluded that the Department is a proper party.[2] 

 

15.  By letter of complaint dated January 26, 2011 and filed February 14, 2011, the complainants appealed to this Commission, alleging that the respondents violated the open meetings provisions of the FOI Act when, on January 25, 2011, they convened privately to hear testimony from the Torrington Board of Education and the Torrington Public Schools Administrators Association (TPSA), as required by the Teacher Negotiation Act (TNA), following the parties’ failure to agree on contract terms through negotiation and mediation.  In addition, the complainants allege that the respondents violated the FOI Act when they convened in “executive session” to discuss the complainants’ objection to holding the hearing in private.  The complainants further allege that the respondents violated the FOI Act’s notice requirements in that they failed to provide notice of the hearing.  

 

            16.  It is found that the respondent panel, after a request by the TPSA to exclude the complainants from the hearing in its entirety, adjourned to privately discuss such request, without taking a vote to do so.  It is found that the respondent Panel reconvened in open session after about three minutes, and ordered the complainants to leave the room.  It is found that, thereafter, the entire hearing, described in paragraph 15, above, was conducted in private, and was not noticed. 

 

            17.  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.”

 

            18.  Section 1-200(2) provides:

 

“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:  Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof.  A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

 

            19.  The respondent Department maintains that the January 25, 2011 hearing was not a “meeting” because the arbitrators are chosen by the parties, because the fees of the arbitrators are paid for by the parties to the arbitration; and because the arbitrators are not agents of the Department of Education.

 

20.  However, it is concluded that the January 25, 2011 hearing is a “hearing or other proceeding” of the respondent Panel, and the fact that the Panel has some independence from the respondent Department does not take its hearings outside of §1-200(2), G.S.

 

21.  The respondents maintain that the January 25, 2011 hearing of the arbitration panel constitutes “strategy and negotiation with respect to collective bargaining,” and therefore is an exception to the definition of “meeting” in §1-200(2), G.S.

 

22. The respondent department further argues that even if the panel is found to be a public agency within the meaning of §1-200(1), G. S., its proceedings are not subject to the open meetings requirements of the FOI Act, first, because such proceedings are “administrative or staff meetings of a single-member public agency.” According to the respondent department, the panel performs “decidedly” administrative functions of the Department, which is headed by a commissioner, who is a single-member public agency.  Thus, according to the respondent department, the meetings or proceedings of the panel, having been found to be a committee of the department, constitute an administrative or staff meeting of a single-member public agency.

 

23.  It is found that the function of the panel was not be carry out the administrative tasks of the respondent department, but instead, to carry out the substantive responsibilities of the respondent department as delineated in the TNA in order to effectuate state board of education policy. Moreover, as found in paragraph 9, above, the panel itself is a public agency, and therefore is subject to the open meeting requirements of the FOI Act.

 

24.  Accordingly, it is concluded that the proceedings of the panel are not “administrative or staff meetings of a single-member public agency,” such that they fall outside the definition of “meeting” in §1-200(2), G.S.

 

25.  In Glastonbury Education Association, above, our Supreme Court construed the “strategy and negotiation with respect to collective bargaining” language in §1-200(2), G.S.,  to exclude from the term “meeting” only those parts of collective bargaining sessions that relate specifically to “strategy or negotiations,” rather than to collective bargaining proceedings in their entirety.  Because the Commission in that case had concluded that the entirety of an arbitration hearing should have been open to the public, including those parts that related specifically to “strategy and negotiations,” the Court “postpone[d] to another day questions concerning the validity of a more narrowly tailored FOIC order that requires open hearings only with respect to evidentiary presentations and permits executive sessions for discussion and argument about the contents of the parties’ last best offers.”  Id. at 718

 

            26.  The Glastonbury court did provide some guidance in distinguishing between discussion and argument about last best offers, which it concluded constituted “strategy and negotiations,” and the evidentiary portions of the proceedings, which it concluded did not fall within that meeting exclusion.

 

            27.  First, the Glastonbury court concluded that the actual presentation of last best offers by the parties sufficiently resembles negotiations, despite the fact that they occur during a proceeding denominated as “arbitration,” to be excluded from the “meeting” requirements of the FOI Act.  Id. at 717.           

 

28.  Second, the Glastonbury court  at 717-718 observed that the Teacher Negotiations Act “permits each party, in its presentations to the arbitral board, ‘to submit all relevant evidence, to introduce relevant documents and written material, and argue on behalf of its last best offer.’ [Citation omitted.] In aid of this evidentiary process, the arbitrators have the ‘power to administer oaths and affirmations and to issue subpoenas requiring the attendance of witnesses.’ [Citation omitted.]  Thus, the arbitration hearing also provides an opportunity for the parties to create an evidentiary record on which the arbitrators can rely in making their final determination of any issues left unresolved.” [Emphasis added.]

 

            29.  Third, the Glastonbury court noted that the TNA “specifically contemplates the presentation of certain financial data.  General Statutes §10-153fc)(2) provides in relevant part: ‘At the hearing a representative of the fiscal authority having budgetary responsibility or charged with making appropriations for the school district shall be heard regarding the financial capability of the school district, unless such opportunity to be heard is waived by the fiscal authority.” Id., n. 9.  This financial data would be contained in the evidentiary record.

 

30.  Finally, the Commission is guided by the Glastonbury court’s analysis of the policy underlying its conclusion that only the “strategy and negotiations” portions of an arbitration hearing fall within the statutory exclusion contained in §1-200(2), G.S.:

 

 Inquiry into the scope of the statutory exclusion for collective bargaining contained in §1-18a(b) [now §1-200(2)] must commence with the recognition of the legislature's general commitment to open governmental proceedings. "The overarching legislative policy of the FOIA is one that favors 'the open conduct of government and free public access to government records.' " [Citations omitted.]  The sponsors of the FOIA understood the legislation to express the people's sovereignty over "the agencies which serve them"; [citations omitted] and this court consistently has interpreted that expression to require diligent protection of the public's right of access to agency proceedings. "Our construction of the [FOIA] must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed." [Citations omitted.]

In light of these principles, the statutory definition of public meetings contained in §1-18a(b) must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings. Accordingly, the language providing that public meetings "shall not include ... strategy or negotiations with respect to collective bargaining" means, as the FOIC maintains, that what is excluded from the term "meeting" is not all collective bargaining, but only "strategy or negotiations" sessions that relate to collective bargaining. This interpretation accords proper respect for the manifest legislative policy expressed in the FOIA. It also comports with its legislative history, which suggests that the collective bargaining exception was understood to provide privacy for "the give-and-take in negotiating sessions of collective bargaining...." (Emphasis added.) 18 H.R.Proc., supra, p. 3896. Had the legislature intended a broader exclusion, it could have excluded "collective bargaining" without limitation, or it could have excluded "collective bargaining, including but not limited to strategy and negotiations relating thereto." See Bloomfield Education Assn. v. Frahm, 35 Conn.App. 384, 389, 646 A.2d 247, cert. denied, 231 Conn. 926, 648 A.2d 161 (1994). It chose neither of these options.

Our interpretation of § 1-18a(b) finds further support in related provisions of the FOIA that provide limited exceptions to the public disclosure requirement for those portions of proceedings that relate to strategy or negotiations. In § 1-18a(e)(2) [now §1-200(6)], for example, the legislature authorized a public agency to adjourn a meeting into executive session for "strategy and negotiations with respect to pending claims and litigation" to which the agency itself is a party. Pointedly, the legislature did not adopt a more sweeping approach, such as closing the entire meeting, to achieve its purpose of sheltering specified components of the proceedings from public scrutiny. See Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984) (agency's authority under § 1-18a[e] to adjourn into executive session for deliberations during proceedings about public employee's job performance does not include authority to conduct evidentiary portion of proceedings in private). Similarly, the legislature has exempted from public disclosure not all documents relating to collective bargaining, but only "records, reports and statements of strategy or negotiations with respect to collective bargaining." General Statutes § 1-19(b)(9). Although the legislature's narrowly tailored approach to the FOIA exclusions and exemptions may add a layer of complexity to agency administration, the legislature implicitly has decided that the associated costs are outweighed by the benefits derived from open government.

31.  Guided by the Supreme Court’s analysis, the Commission makes the following findings:

 

32.  It is found that evidence was presented at the January 25 hearing as to several of the statutory factors that the arbitrators are required to consider: the financial capability of the town; the history of the negotiations between the parties prior to arbitration, including the offers and the range of discussion of the issues; the interests and welfare of the employee group; changes in the cost of living; the existing conditions of employment of the employee group and similar groups; and the salaries, fringe benefits and other conditions of employment prevailing in the state labor market.  See §10-153f(c)(4)(A) through (E), G.S.[3] 

 

33.  It is found that the evidence presented at the January 25, 2011 hearing was recorded stenographically.

 

34.  It is found that the parties at the arbitration hearing at issue in this case also presented several “last best offers.”

 

35.  It is found that the evidence described in paragraph 32, above, was in support of the parties’ “last best offers,” but that the evidence itself was not a “last best offer.”

 

36.  It is also found that negotiation was conducted by the parties out of the presence of the panel chair or the panel as a whole, although each party “caucused” separately with its “own” arbitrator.

 

37.  It is found that negotiations conducted by the parties out of the presence of the panel chair or the panel as a whole were not stenographically recorded.

 

38.  It is concluded that the negotiations portion of the January 25, 2011 hearing, conducted off the record away from the panel, was separate from the evidentiary portion of that hearing, conducted on the record in the presence of the panel.

 

39.  It is concluded that the evidentiary portion of the January 25, 2011 hearing that was recorded stenographically was not “strategy or negotiations with respect to collective bargaining,” and therefore was a “meeting” within the meaning of §1-200(2), G.S., that was required to be open to the public.

 

40.  It is therefore concluded that the respondents violated §1-225(a), G.S., by conducting the evidentiary portion of their hearing in private.

 

41.  The Commission observes, as a practical consideration, that because the negotiation sessions conducted off the record are excluded from the definition of “meeting,” they are not executive sessions, and that therefore no motion or vote to convene in executive session is required under the circumstances of this case.

 

            42.  With regard to the allegation that the respondents violated the FOI Act by convening in executive session to discuss the TPSA’s request to exclude the complainants from the hearing in its entirety, §1-200(6), G.S., defines “executive sessions” as:

 

 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;  (B)  strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled;  (C)  matters concerning security strategy or the deployment of security personnel, or devices affecting public security;  (D)  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; and  (E)  discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-210.

 

43.  It is found that the respondents offered no evidence at the hearing in this matter regarding the applicability of any of the permissible purposes for an executive session, described in paragraph 42, above, to their private discussion concerning the TPSA’s request. 

 

44.  Thus, based upon the foregoing, as well as the findings of fact in paragraph 16, above, it is concluded that the respondents violated the FOI Act as alleged in the complaint.

 

45.   With regard to the allegation that the respondents violated the FOI Act when they failed to notice their January 25, 2011 meeting, §1-225(d) provides, in relevant part:

 

(d)  Notice of each special meeting of every public agency…shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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 Secretary of the State for any such public agency of the state….The secretary…shall cause any notice received under this section to be posted in his office…. The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency. 

 

46.  Based upon the findings in paragraph 16, above, it is concluded that the respondents violated the FOI Act when they failed to notice the January 25, 2011 meeting, described in paragraph 39, above.

 

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 (d) and §§1-200(2) and (6), G.S.

 

            2.  The respondents shall forthwith, at their own expense create a transcript of the stenographic record of the January 25, 2011 hearing, described in paragraph 36, above, and provide it to the complainants, free of charge. 

 

            3.  Enforcement of paragraphs 1 and 2 of this order is stayed until, the resolution of the appeals in Martin Gould v. Freedom of Information Commission, Jim Moore, and the Waterbury Republican-American, HHB-CV-11-6009584S and State of Connecticut, Department of Education v. Freedom of Information Commission, Jim Moore, and the Waterbury Republican-American, HHB-CV-11-6009562S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 26, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Jim Moore and the Waterbury Republican-American;

c/o Thomas J. Parisot, Esq.

Secor, Cassidy & McPartland

41 Church Street

Waterbury, CT  06702

 

State of Connecticut, Department of Education,

Contract Arbitration Panel; and

c/o Martin A. Gould, Esq.

Gould Killian & Wynee

280 Trumbull Street

Hartford, CT  06103

 

State of Connecticut, Department of Education

c/o Jane Comerford, Esq.

Assistant Attorney General

Office of the Attorney General

55 Elm Street, 5^th Floor

Hartford, CT  06106

 

 

 

 

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission