FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Claire Bronson, William Condy and the Hour,
Complainants
against Docket #FIC 90-442
Norwalk Economic Opportunity Now, Inc.,
Respondent November 13, 1991
The above-captioned matter was heard as a contested case on February 22, 1991, 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. By letter dated November 15, 1990 and filed November 16, 1990, the complainants appealed to the Commission alleging that the respondent's Board of Directors illegally convened an executive session and requesting a determination of whether the respondent is a public agency as defined by the Freedom of Information ("FOI") Act.
2. More specifically, the complainants alleged that complainant Bronson was asked to leave the respondent's Board of Directors meeting when the Board convened in executive session.
3. It is found that at its regular meeting on November 7, 1990, the respondent's Board of Directors convened in executive session for the stated purpose of discussing a contract.
4. At the hearing on this matter, the respondent moved to dismiss the appeal on the ground that it is not a public agency as defined in §1-18a(a), G.S., and is therefore not subject to the Commission's jurisdiction.
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5. It is concluded that the test for determining whether an agency such as the respondent is a public agency for purposes of §1-18a(a), G.S., is one of functional equivalence, as outlined by the Supreme Court in Board of Trustees of Woodstock Academy, et al. v. Freedom of Information Commission, et al., 181 Conn. 544 (1980), and that the court has concluded that the criteria to be utilized in determining whether an institution such as the respondent is the functional equivalent of a public agency are (1) whether the entity performs a governmental function; (2) the level of governmental funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government.
6. The respondent maintains that all four factors outlined in paragraph 5, above, must be present for a finding of functional equivalence.
7. It is concluded however, based upon Connecticut Humane Society v. Freedom of Information Commission 218 Conn 757 (1991) that all four factors are not necessary for a finding of functional equivalence, but that "all relevant factors are to be considered cumulatively, with no single factor being essential or conclusive."
8. It is found that the respondent was created as a nonprofit corporation in 1965 and was originally named Norwalk Committee on Training and Employment.
9. It is also found that the name of the respondent was changed to Norwalk Economic Opportunity Now, Inc. on February 28, 1966.
10. It is also found that at the time the respondent was created, the Economic Opportunity Act of 1964, 42 U.S.C. §2701 et seq., (hereinafter "EOA"), was in effect and that under title II of the EOA, the Office of Economic Opportunity provided financial asssistance to authorized community action agencies to operate various antipoverty programs designed to help urban and rural communities mobilize their resources to combat poverty.
11. It is found that pursuant to the EOA provisions, from the period of its inception until 1969 the respondent received over three quarters of a million dollars from the Office of Economic Opportunity and the Department of Labor for program administration and various other programs.
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12. It is also found that the EOA is no longer in effect, but that pursuant to §17-635, G.S., et seq., the State of Connecticut has implemented legislation corresponding to the EOA provisions and regulating community action agencies operating in Connecticut.
13. Pursuant to §17-635(b), G.S., community action agencies are agencies which have been previously designated by and authorized to accept federal funds under the EOA.
14. Pursuant to §17-638, G.S., designated community action agencies are authorized to receive and administer funds under any federal or state assistance program.
15. It is concluded that although the respondent was not specifically created by government, the impetus for its creation was the EOA, which has been supplanted by Connecticut's community action agency legislation.
16. It is found that the respondent uses Norwalk school facilities for its Day Care Program and pays the City of Norwalk a monthly amount well below market value for rental use.
17. It is also found that the federal government requires the respondent to be audited by an independent auditor which audit is submitted to federal authority.
18. Section 17-642, G.S., empowers the Commissioner of Human Resources to terminate a community action agency's designation following a hearing and a finding that the agency has failed to comply with the provisions of §17-635, G.S., et seq.
19. Section 17-636, G.S., provides that each community action agency shall administer its program through a community action board comprised as follows: (1) One third of the members of the board are elected public officials currently holding office, or their designees; (2) at least one-third of the members of the board are persons chosen in accordance with democratic selection procedures adequate to assure that they are representative of the poor in the area served; and (3) the remainder of the members are officials or members of business, industry, labor, religious, welfare, education or other major groups and interests in the community.
20. It is found that one-third of the respondent's Board of Directors consist of public officials appointed by the mayor, one-third consist of representatives elected by residents of
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targeted low-income areas and one-third consist of individuals from the private sector who are selected and appointed by the Board of Directors from a list of private sector organizations, including business, industry, labor and private social service groups.
21. It is concluded that paragraphs 15 through 19, of the findings above, demonstrate a substantial amount of government involvement in the operations of the respondent.
22. It is found that in addition to its central administration, the respondent currently administers thirty-nine programs. Among the programs administered by the respondent is a Head Start Program, an Adult Learning Center, an Employment Training Assistance Program, a Weatherization Program, and a state-appropriated Fuel Assistance Program.
23. It is also found that for each of its programs, the respondent attempts to identify a funding source to fund the program and then prepares a proposal to be submitted to the funding source.
24. It is also found that the respondent's funding sources include: Connecticut Department on Aging, Connecticut Department of Correction, Connecticut Department of Education, Connecticut Department of Energy, Connecticut Department of Human Resources, Connecticut Department of Income Maintenance and Connecticut Department of Mental Health.
25. The respondent maintains that it stands in a "purchase of services" relationship with each of its funding sources, wherein the funding source purchases the respondent's services to administer the funds provided by the funding source to a designated program.
26. It is found that the respondent receives funds from its funding sources, on the federal, state, local and private level by entering into contractual agreements, by which the funding source agrees to transfer funds to the respondent for use in the respondent's administration of a designated program or programs and which agreements set forth conditions regarding how the funds will be used and administered by the respondent.
27. It is also found that the sum of the respondent's funding sources yields a total operating budget of over seven million dollars.
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28. It is also found that a portion of the respondent's program funding comes from private sources, but that over 75% of its total operating budget derives from contracts with federal, state and local government sources.
29. It is also found that the respondent receives approximately 80% of its "Core Operating Budget", which is for the respondent's administrative and operational costs, from the City of Norwalk.
30. It is also found that pursuant to §17-643, G.S., which provides that the Commissioner (of Human Resources) may provide financial assistance to community action agencies for planning, conducting, administering and evaluationg community action programs, the Connecticut Department of Human Resources provided $42,600 in 1989 which was allotted for management support services and operational coordination.
30. It is concluded that the respondent is substantially funded by governmental funds.
31. It is found that the Connecticut Department of Corrections contracts with the respondent to fund an alternative incarceration center which center provides an alternative to incarceration in Department of Correction facilities.
32. It is also found that the respondent contracts with its various funding sources to perform services normally provided by government or governmental agencies.
33. It is concluded that the respondent performs a variety of governmental functions through its contracts with federal, state and local government, such as the contract more fully described in paragraph 31, of the findings above.
35. It is also concluded that since the respondent has a significant amount of government involvement, is substantially financed with public funds and performs a variety of governmental functions on a contractual basis, it constitutes a public agency within the meaning of §1-18a(a), G.S., and is therefore subject to the jurisdiction of the Commission.
36. The respondent's Motion to Dismiss is hereby denied.
37. It is found that the respondent's November 7, 1990 meeting should not have been convened in executive session, unless it was convened pursuant to the provisions of §1-18a(e), G.S.
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38. It is found that the respondent did not offer evidence to demonstrate that the portion of its November 7, 1990 meeting which was closed to complainant Bronson, was a proper purpose for an executive session within the meaning of §1-18a(e), G.S.
39. It is therefore concluded that the respondent violated §1-21(a), G.S., when it excluded complainant Bronson from its meeting on November 7, 1990.
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 provisions of the FOI Act.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 13, 1991.
Karen J. Haggett
Clerk of the Commission
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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:
MS. CLAIRE BRONSON
MR. WILLIAM CONDY
The Hour
346 Main Avenue
P.O. Box 790
Norwalk, CT 06852
ANDREW G. BRUCKER, ESQ.
10 Fencerow Drive
Fairfield, CT 06430-7001
Karen J. Haggett
Clerk of the Commission