Advisory Opinion #41

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT

In the Matter of a Request for Advisory Opinion
	Advisory Opinion #41
Town Counsel, Town of Seymour, Applicant

On April 9, 1980, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Town Counsel, Town of Seymour. In his request, the applicant raises three questions. Each will be treated seriatim.

The applicant's first question, in essence, asks what means a public agency must use to assure compliance with the provisions of Conn. Gen. Stat. §1-21 when it wishes to conduct all or part of a meeting by telephone or other electronic equipment.

It is the Commission's opinion that this question cannot be answered definitively, although certain considerations can be set forth to guide public agencies in this era of rapid technological innovation.

The applicant correctly points out that Conn. Gen. Stat. §l-18a(b) defines "meeting" in part, as "communication by or to a quorum of a multi‑member public agency, whether in person or by means of electronic equipment...." This seems to indicate that telephonic meetings are permissible for purposes of the Freedom of Information (FOI) Act. On the other hand, Conn. Gen. Stat. 1-21, in relevant part, requires that the "meetings of all public agencies ... shall be open to the public." Consequently, any telephonic meeting, or meeting by other electronic equipment, of a public agency must still be "open to the public," within the meaning of §1-21.

The Commission believes that the phrase "open to the public" contemplates public access to the entire proceedings taking place during the course of a meeting. Compliance with §1-21, therefore, requires that a meeting of a public agency be conducted in such a manner that every person in attendance has the opportunity to observe all of the discussions and actions transpiring at the meeting. In the context of a meeting held by means of telephonic or electronic equipment, the following minimum conditions must be met:

1. Facility must be made for that portion of the public that wishes to attend the meeting to be present at a place where the greatest number of participating agency members are located.

2. If any agency member or other participant in the meeting utilizes physical or demonstrable material in the course of the proceedings, that material, or a copy or facsimile of same, must be present in the place where the public is located. That material also must be available for public observation and inspection, unless otherwise exempt from disclosure under Conn. Gen. Stat. §l-19(b).

3. All those in attendance at the meeting, at whatever location, must be able to hear and identify adequately all participants in the proceedings, including their individual remarks and votes. While the Commission does not have the technical expertise to advise which telephonic or electronic devices would meet this condition now or in the future, existing conference call equipment in conjunction with loud speakers may be adequate for this purpose.

The applicant's second question, in essence, asks what public access is required when a board of finance conducts a poll of its members on an appropriation involving $1,000 or less pursuant to Conn. Gen. Stat. §7-342.

In relevant part, §7‑342 states that:

except where otherwise provided by special act or charter, in any case involving a vote of the board [of finance] on an appropriation, or a transfer within an existing appropriation, of an amount not exceeding one thousand dollars, the chairman or, in his absence, the clerk or any two members, may, in lieu of calling a meeting of the board, poll the members thereof...

(Emphasis added). Thus, the poll contemplated here appears to act as an exemption to the rule that municipal boards "must meet and act as a board at authorized meetings duly held." Ziomek v. Bartimole, 156 Conn. 604, 612 (.1968). The questions then becomes whether such a poll is subject to the FOI Act.

As a primary rule of statutory construction, statutes should be interpreted, if possible, so as to create one consistent body of law. State v. White, 169 Conn. 223, 234 (1975); Spring v. Constantino, 168 Conn. 563, 572 (1975). Likewise, a statute of specific applicability generally supersedes a conflicting provision of a statute of general applicability. State v. Whiter supra. The FOI Act is comprised of statutes of general applicability. In re Planning and Zoning Commission, City of Middletown, FOI Commission Advisory Opinion #34 (December 13, 1978). It is the Commission's opinion that §7-342 is a statute of specific applicability and where its provisions conflict with those of the FOI Act, the provisions of §7‑342 generally prevail.

Consequently, it is the Commission's opinion that the poll as described and limited in §7‑342, is not a "meeting" subject to the FOI Act. But this should not be construed as a carte blanche for boards of finance to avoid providing public notice for, and access to, their meetings or polls. Section 7‑342 is limited to appropriations, or transfers, not exceeding $1,000. Beyond that amount, the poll would be subject to the open meetings requirements of the FOI Act.

Also, a poll is defined as "[t]he casting or recording of the votes of a body of persons." Webster's New International Dictionary, 2nd ed. (unabridged). It is the Commission's opinion that this definition comports with commonly approved usage within the context of §7-342. See Conn. Gen. Stat. §1-1(a). As a result, discussion or other communication between or among agency members does not fall within the purview of a poll. Therefore, a poll is restricted to the casting or recording of votes only. Anything else would constitute a meeting if it otherwise comes within the definition contained in Conn. Gen. Stat. §1-18a(b).

Although it is the Commission's opinion that the poll permitted by §7-342 is outside the coverage of the FOI Act, the Commission hopes that boards of finance nonetheless would comply with the act's public notice and access requirements, whenever possible. In this regard, if telephonic or electronic equipment is used to conduct such a poll, the minimum conditions set forth in section I of this opinion would be both appropriate and satisfactory. By following such procedures, the Commission believes that boards of finance not only would be adhering to the spirit of the FOI Act, but would be helping to implement a consistent public information policy. Furthermore, such boards would avoid the consequences of crossing the line between permissible poll and illegal meeting -- a line that the Commission intends to interpret strictly.

III

The applicant's third question, in essence, asks whether the time period for filing the results of a board of finance poll under Conn. Gen. Stat. §7‑342 conflicts with the time periods in Conn. Gen. Stat. §1‑21 for making available for public inspection, records of votes; and, if so, which provision governs.

The Commission addressed a similar question in In re Town Clerk, Town of Oxford, FOI Commission Advisory opinion #31 (August 9, 1978). For the reasons stated below, the Commission believes that the substance of Advisory opinion #31 ought to control here. Thus, it is the Commission's opinion that there is no conflict between the foregoing time period provisions of §§7-342 and 1-21 because they can be read consistently to create one body of law.

'The document containing the results of a board of finance poll is a public record within the meaning of Conn. Gen. Stat. §1-18a(d). It is also a record of votes within the meaning of §1-21. Consequently, under Conn. Gen. Stat. §§1-19(a) and 1-21, if a town board of finance has a regular office or place of business, its record of votes, including poll results, must be reduced to writing and kept, maintained and made available there for public inspection within 48 hours, excluding Saturdays, Sundays or legal holidays. In that case, another record of poll results must be filed with the town clerk within two weeks to satisfy the requirements of §7-342.

If, however, a board of finance does not have a regular office or place of business, §§1-19(a) and 1-21 require that the record of its poll results be reduced to writing and kept, maintained and made available for public inspection in the office of the municipal clerk within the same 48 hour period as set forth above. Under these circumstances, it appears academic whether the clerk of the board also files an additional record of poll results in the same municipal clerk's office for purposes of §7-342. It is the Commission's opinion that in this event, compliance with the requirements of the FOI Act would fulfill the requirements of §7-342 as well, because the filing of the record of votes within the time limitations of §1-21 would also meet the time limitations of §7-342.

Since the first part of the applicant's question is answered in the negative, the second part accordingly becomes moot.

By Order of the Freedom of
Information Commission

                                                                                            ________________________
                                                                                            Judith A. Lahey, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

Ordered_________________

Leslie Ann McGuire, Clerk of the Commission