TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s regular meeting of April 28, 2010
A regular meeting of the Freedom of Information Commission was held on April 28, 2010, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 2:08 p.m. with the following Commissioners present:
Commissioner Andrew J. O’Keefe, presiding
Commissioner Sherman D. London (participated via speakerphone)
Commissioner Norma E. Riess
Commissioner Owen P. Eagan
Also present were staff members, Colleen M. Murphy, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Tracie C. Brown, Gregory F. Daniels, Kathleen K. Ross, Lisa F. Siegel, Valicia D. Harmon, Paula S. Pearlman, Cindy Cannata and Thomas A. Hennick.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
The Commissioners unanimously voted to adopt the minutes of the Commission’s regular meeting of April 14, 2010.
Docket #FIC 2009-305 Paul Fine, Jr., v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
Paul Fine Jr. participated via speakerphone. Attorney Nicole Anker appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Minutes, Regular Meeting, April 28, 2010
Page 2
Docket #FIC 2009-313 Gary Neal Sadler v. Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed HealthCare; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
Gary Neal Sadler participated via speakerphone. Assistant Attorney General Donald Green appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as corrected.* The proceedings were recorded digitally.
Docket #FIC 2009-303 Doreen Rich and David Rich v. Board of Assessment Appeals, City of Norwalk; and City of Norwalk
Doreen Rich appeared on behalf of the complainants. Attorney Brian McCann appeared on behalf of the respondents. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended.*
Docket #FIC 2009-326 Lazale Ashby, Jessie Campbell, III, and Office of the Chief Public Defender v. Commissioner, State of Connecticut, Department of Correction; and State of Connecticut, Department of Correction
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-489 Thomas Germain v. Sandra Greenhaigh, Clerk, City of Norwich
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-503 Robert Sears v. Resident State Trooper, State of Connecticut, Department of Public Safety; and State of Connecticut, Department of Public Safety
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, April 28, 2010
Page 3
Docket #FIC 2009-515 Marvin A. Steinberg and the Connecticut Council on Problem Gambling v. Executive Director, State of Connecticut, Division of Special Revenue; and State of Connecticut, Division of Special Revenue
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-570 Anthony Rizzolo v. Lt. Francis Proudfoot, Police Department, Town of Stratford; and Police Department, Town of Stratford
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-581 Priscilla Dickman v. Director, State of Connecticut, University of Connecticut Health Center, Office of Health Affairs Policy Planning; and State of Connecticut, University of Connecticut Health Center
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-617 Priscilla Dickman v. Compliance Integrity Officer, State of Connecticut, University of Connecticut Health Center; and State of Connecticut, University of Connecticut Health Center
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2009-589 Alice Sexton v. Commissioner, State of Connecticut, Department of Revenue Services, Legal Division; and State of Connecticut, Department of Revenue Services
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Minutes, Regular Meeting, April 28, 2010
Page 4
Docket #FIC 2009-665 Apostle Immigrant Services and St. Rose of Lima Church v. Leonard Gallo, Chief, Police Department, Town of East Haven; and Police Department, Town of East Haven
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
The Commissioners voted unanimously to vacate their final decision in Docket #FIC 2008-408; Gerald L. Fanfarelli v. William Celentano, Chairman, Board of Fire Commissioners, City of New Haven; Boise Kimber, Member, Board of Fire Commissioners, City of New Haven; Wendy Mongillo, Member, Board of Fire Commissioners, City of New Haven; Board of Fire Commissioners, City of New Haven; Michael Grant, Chief, Fire Department, City of New Haven; Ronald Dumas, Assistant Fire Chief, Fire Department, City of New Haven; James Kottage, Chairman, Pension Board of the Policemen’s and Firemen’s Retirement Fund, City of New Haven; Wendy Mongillo, Member, Pension Board of the Policemen’s and Firemen’s Retirement Fund, City of New Haven; Jerome Sagnella, Payroll/Pension Administrator, Pension Board of the Policemen’s and Firemen’s Retirement Fund, City of New Haven; and Pension Board of the Policemen’s and Firemen’s Retirement Fund, City of New Haven.
The Commissioners unanimously voted to add two matters to the agenda:
Consideration of Memorandum of Decision in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al.(No. CV 09 4020071S) (April 21, 2010) and Consideration of Memorandum of Decision in University of Connecticut v. Freedom of Information Commission, et al. (No. CV 09 4021320S) (April 21, 2010)
The Commissioners unanimously voted to appeal the Memorandum of Decision in Commissioner, State of Connecticut, Department of Public Safety v. Freedom of Information Commission, et al.(No. CV 09 4020071S) (April 21, 2010) and The Commissioners unanimously voted to appeal the Memorandum of Decision in University of Connecticut v. Freedom of Information Commission, et al. (No. CV 09 4021320S) (April 21, 2010).
Colleen M. Murphy reported on legislation.
Victor R. Perpetua reported on pending appeals.
The meeting was adjourned at 2:56 p.m.
______________________
Thomas A. Hennick
*SEE ATTACHED FOR AMENDMENT and CORRECTION
MINREG meeting 04282010/tah/04292010
Minutes, Regular Meeting, April 28, 2010
Page 5
AMENDMENT and CORRECTION
Docket #FIC 2009-313 Gary Neal Sadler v. Executive Director, State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care; and State of Connecticut, University of Connecticut Health Center, Correctional Managed Health Care
Paragraph 17 of The Hearing Officer’s Report is corrected as follows:
17. It is concluded that the respondents did not violate the FOI Act as alleged in the [complainant] COMPLAINT.
Docket #FIC 2009-303 Doreen Rich and David Rich v. Board of Assessment Appeals, City of Norwalk; and City of Norwalk
The Hearing Officer’s Report is amended as follows:
[5. It is found that the principal purpose of the April 16, 2009 meeting was for Overton and Stewart to collect information to present to the full Board of Assessors. The complainants have not alleged that the April 16, 2009 meeting violated the FOI Act.]
[6.] 5. It is found that the respondent Board met sometime after April 16, 2009 and before May 29, 2009 and decided the complainants’ tax appeal in executive session (the “disputed meeting”).
[7.] 6. Section 1-200(5), G.S., provides in relevant part:
“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.
Minutes, Regular Meeting, April 28, 2010
Page 6
[8.] 7. Section 1-225, G.S., provides in relevant part:
(a) 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, which minutes shall be available for public inspection within seven days of the session to which they refer. 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.
(b) Each such public agency of the state shall file not later than January thirty-first of each year in the office of the Secretary of the State the schedule of the regular meetings of such public agency for the ensuing year and shall post such schedule on such public agency’s Internet web site, if available. . . .
(c) The agenda of the regular meetings of every public agency… shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business ….
(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 clerk of such subdivision for any public agency of a political subdivision of the state ….
Minutes, Regular Meeting, April 28, 2010
Page 7
[9.] 8. 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; (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.
[10.] 9. Section 1-206(b)(1), G.S., provides in relevant part:
A notice of appeal [to the FOI Commission] shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held.
[11.] 10. It is concluded that the disputed meeting described in paragraph 6, above, was a meeting within the meaning of §1-200(5), G.S.
[12.] 11. It is found that the respondents did not provide notice of the disputed meeting in the manner required by subsections (b), (c) and (d) of §1-225, G.S.
[13.] 12. It is found that the disputed meeting was not open to the public.
Minutes, Regular Meeting, April 28, 2010
Page 8
[14.] 13. It is found that the respondents conducted the disputed meeting in what purported to be executive session, without a permissible purpose pursuant to §1-200(6), G.S.
[15.] 14. It is found that the respondents did not keep or make available the minutes and record of vote concerning the disputed meeting.
[16.] 15. It is also found that the disputed meeting was “unnoticed or secret” within the meaning of §1-206(b)(1), G.S.
[17.] 16. It is concluded that the respondents violated §§1-200(5) and 1-225, G.S., at their disputed meeting.
[18.] 17. In their complaint, the complainants requested “that the Commission annul all decisions by the Board and remand the matters for hearings in compliance with the law,” and that the Commission “deem the practice of assigning an agent of the Assessor, or individual member of the Board, to act as an ‘advocate’ for the property owner in violation of the Freedom of information Act, and state law governing the procedures of the Board of Assessment Appeals, and direct the Board to conduct any future hearings in compliance with both C.G.S. §1-225 and C.G.S. §12-110(b).
[19.] 18. Because the Commission has received no evidence or argument concerning the effect of a null and void order, other than a suggestion that the complainants would lose the 2% decrease granted to them at the disputed meeting, and because the complainants did not lose the right to file a tax appeal from the respondents’ determination, the Commission in its discretion declines to declare the disputed meeting null and void.
[20.] 19. Additionally, the Commission lacks the power to direct the respondents to assign duties to the tax assessor, or to direct the board to conduct hearings in compliance with §12-110(b), 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 respondents shall strictly comply with the requirements of §§1-200(5) and 1-225, G.S., in conducting hearings and meetings concerning tax appeals.
2. The respondents shall forthwith contact Commission staff to arrange for an educational workshop concerning the requirements of the FOI Act.
[3. Although Commission has in its discretion declined to reach any conclusions of law concerning the meeting described in paragraphs 4 and 5 of the findings, above, the respondents are advised to seek counsel regarding whether such a meeting is subject to the FOI Act.]