FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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George C. Finley; Peter Kelly; |
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Complainants |
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against |
Docket #FIC 2001-056 | |
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State Ethics Commission, |
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Respondents |
October 10, 2001 | |
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The above-captioned matter was heard as a contested case on April 6 and July 27, 2001 at which times 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. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. By complaint dated and filed with the Commission on January 31, 2001, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information Act (“FOI”) Act by:
i) failing to give the complainants an opportunity to comment on the respondent’s ethics complaint against Crossroads Investment Company, L.P., (hereinafter “CIC”) or to challenge the respondent’s finding that two agreements, described in paragraph 3, below, between CIC and complainant Finley and Associates, Inc., were “illegal Contingency Fee Agreements”;
ii) the respondent’s executive director, and or his staff at his direction, and an attorney representing CIC jointly drafting the ethics complaint and Stipulation and Order, described in paragraph 5, below, and the fact that the drafting of the ethics complaint and Stipulation and Order resulted from a process of collusion between the respondent’s executive director, and or his staff at his direction, and CIC, to deprive the complainants of their rights under the agreement between CIC and complainant Finley and Associates, Inc., and to deprive the complainants of their statutory rights under the state Ethics and Lobbying Codes, and to deprive the complainants of their rights under the United States and Connecticut Constitutions;
iii) failing to notice a meeting to consider and approve the Stipulation and Order, failing to vote to accept or approve the Stipulation and Order and failing to meet to authorize or approve the issuance of the ethics complaint against CIC;
iv) by the respondent’s executive director and chairman exceeding their statutory authority in purportedly entering into the Stipulation and Order.
3. It is found that in 1987 complainant Finley Associates, Inc., entered into an agreement with Crossroads Management Partners. On or about August 31, 1998, Crossroads Management Partners conveyed its general partner interest to CIC. A dispute arose between the complainants and CIC with respect to the parties’ obligations under the agreement, resulting in litigation. In order to resolve their dispute and settle the litigation, complainant Finley Associates, Inc. and CIC entered into an agreement on or about May 24, 1999 (“May agreement”) whereby CIC would make certain payments to complainant Finley Associates, Inc. CIC stopped making such payments to complainant Finley Associates, Inc., and eventually in November 2000, the respondent ordered CIC to cease and desist from making such payments to complainant Finley Associates, Inc.
4. It is found that as a part of an inquiry into alleged improper payment of “finders fees” and kickbacks during and preceding the administration of former state Treasurer Paul Silvester, the respondent commenced an investigation of CIC and CIC’s agreements with complainant Finley Associates, Inc.
5. It is found that the respondent held a special meeting on November 15, 2000 (hereinafter “November meeting”) during which, in “closed session”, it voted and authorized the filing of an ethics complaint by the respondent against CIC, and settlement of such complaint, the Stipulation and Order.
6. It is found that the notice, agenda and minutes of the November meeting do not indicate that the respondent conducted any business at such meeting with respect to the investigation of CIC and the authorization of the ethics complaint and Stipulation and Order.
7. It is found that on November 30, 2000, the respondent issued a press release making public for the first time the ethics complaint against CIC, and the resulting settlement reached with CIC, the Stipulation and Order. In the Stipulation and Order the respondent found that the two agreements involving complainant Finley Associates, Inc. and CIC were agreements to engage in administrative lobbying for contingency fees in violation of §1-97(b), G.S., of the state Ethics Code. In the Stipulation and Order, CIC agreed to cease and desist making payments to complainant Finley Associates, Inc., and to pay to the office of the state Treasurer the monies due to complainant Finley Associates, Inc., less costs and expenses, in the amount of 1.2 million dollars.
8. It is found that the minutes of the respondent’s January 12, 2001 meeting reveal that the respondent authorized the ethics complaint and Stipulation and Order during a “closed session” on November 15, 2001.
9. With respect to the complainants’ allegations as described in paragraph 2i, 2ii and 2iv, above, it is concluded that the complainants have failed to allege any conduct on the part of the respondent, its chairman or executive director that even if proven, violates any provision of the FOI Act. These issues are not governed by the FOI Act and consequently, this Commission has no authority to address them.
10. With respect to the complainants’ allegation as described in paragraph 2iii, above, it is found that the crux of the complainants’ complaint is that the respondent did not have a meeting and the respondent should have had a meeting, and further that the FOI Act requires that the respondent meet.
11. It is first concluded that no provision of the FOI Act requires or dictates when “public agencies” should meet. However, the FOI Act requires that when “public agencies” meet, such meetings must comply with the FOI Act, unless an exception applies. Therefore, even had the complainants prevailed in proving that the respondent did not have a meeting, that fact would not have provided a basis for the Commission to conclude that the respondent violated the FOI Act.
12. Second, it is concluded that the November meeting “closed session” was held pursuant to §§1-82a and 1-93a, G.S., of the state Ethics Code.
13. Sections 1-82a(a) and 1-93a(a), G.S., provide, in relevant part:
[A] [Ethics] commission evaluation of a possible violation of this part undertaken prior to a complaint being filed by the commission shall be confidential except upon the request of the subject of the evaluation. If the evaluation is confidential, any information supplied to or received from the [Ethics] commission shall not be disclosed to any third party by a subject of the evaluation, a person contacted for the purpose of obtaining information or by a [Ethics] commission or [Ethics commission] staff member.
14. Sections 1-82a(b) and 1-93a(b), G.S., further provide that:
[A]n investigation conducted prior to a probable cause finding shall be confidential except upon the request of the respondent. If the investigation is confidential, the allegations in the complaint and any information supplied to or received from the commission shall not be disclosed during the investigation to any third party by a complainant, respondent, witness, designated party, or commission or staff member.
15. Sections 1-82a(e) and 1-93a(e), G.S., further provide, in relevant part:
[T]he [Ethics] commission shall make public a finding of probable cause not later than five business days after the termination of the investigation. At such time the entire record of the investigation shall become public, except that the [Ethics] commission may postpone examination or release of such public records for a period not to exceed fourteen days for the purpose of reaching a stipulation agreement pursuant to subsection (c) of section 4-177.
16. It is found that the November meeting “closed session” was conducted in connection with the respondent’s “evaluation” of a possible ethics violation and “investigation” of CIC, within the meaning of §§1-82a and 1-93a, G.S. It is also found that CIC did not waive confidentiality.
17. It is therefore concluded that the November “closed session” was not a meeting convened pursuant to §§1-200(2), 200(6) and 1-225, G.S., of the FOI Act, but was permissibly held in private as authorized by §§1-82a and 1-93a, G.S.
18. During the hearing in this matter, and more clearly set forth in their post-hearing brief filed on August 10, 2001, the complainants also allege that the respondent violated the FOI Act by:
i) failing to issue a proper notice specifying that issues related to CIC and the complainants would be discussed at the respondent’s November 15, 2000 meeting;
ii) failing to issue a proper agenda for the November 15, 2000 meeting;
iii) failing to timely record any votes for the November 15, 2000 meeting;
iv) failing to properly prepare minutes of the respondent’s activities; and
v) “entering into a “Side Agreement”, never voted upon or referred to in minutes”.
19. It is found that the allegations described in paragraph 18, above, even giving the broadest reading to the complaint in this matter, were never raised in such complaint.
20. The Commission provided notice of the hearing in this matter to the parties along with a copy of the complainants’ complaint, which sets forth the parameters of the allegations brought by the complainants, and therefore, the scope of the matters to be addressed by the Commission in the context of this appeal.
21. It is concluded that the allegations now being raised by the complainants’ and described in paragraph 18, above, are so entirely beyond the scope of complaint, that they are not matters appropriately addressed in this appeal.
22. It is further concluded that in light of the conclusion reached in paragraph 17, above, that the respondent was authorized to act confidentially pursuant to §§1-82a and 1-93a, G.S., the issues now being raised by the complainants’ concerning improper notice and agenda are moot.
23. Based upon the foregoing, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint.
The following order by the Commission is hereby recommended on the basis of
the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of October 10, 2001.
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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:
George C. Finley; Peter Kelly;
and Finley Associates, Inc.
c/o R. Bartley Halloran, Esq.
Levy & Droney, PC
Pond View Corporate Center
74 Batterson Park
Farmington, CT 06034
State Ethics Commission,
State of Connecticut
c/o Clare E. Kindall, Esq.
Assistant Attorney General
55 Elm Street, PO Box 120
Hartford, CT 06141-0120
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-056/FD/paj/10/11/2001