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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Mal Leichter, |
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Complainants |
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against |
Docket #FIC 2001-263 | |
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Board of Finance, Town of Hebron, |
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Respondent |
April 24, 2002 | |
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The above-captioned matter was scheduled to be heard as a contested case on July 12, 2001 at 2:00 P.M., at which time the respondent appeared, but the complainant did not. The complainant appeared at the August 22, 2001 regular meeting of the Freedom of Information Commission, and this matter was continued. This matter was heard as a contested case on September 20, 2001, at which time the complainant 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. It is found that the respondent has been working on the Hebron town budget since January 2001. It is further found that a large part of the Hebron town budget is allocated to the Hebron Board of Education [hereinafter “BOE”], and that the town is obligated to contribute to the budget of the Regional School District #8, comprising the towns of Hebron, Andover and Marlborough [hereinafter “RHAM”]. It is further found that the budgets for BOE and RHAM are controversial issues in the town of Hebron.
3. By letter of complaint dated and filed on May 30, 2001, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act in the following respects:
a. discussing an item not on the agenda of the April 30, 2001 special meeting of the respondent [hereinafter “the April meeting”], namely whether to send a letter to the editor of the local newspaper regarding an upcoming referendum on the RHAM budget;
b. continuing to discuss such item at the April meeting, after being notified by a member of the public that such discussion violated the FOI Act;
c. writing and circulating a May 4, 2001, letter to the editor outside the view of the public [hereinafter “the first letter”];
d. writing and circulating a May 11, 2001, letter to the editor outside the view of the public [hereinafter “the second letter”];
e. preparing a memo for distribution at the May 14, 2001 Hebron town meeting outside the view of the public [hereinafter “the first memo”];
f. submitting without authorization a letter to the editor at noon on May 16, 2001, [hereinafter “the third letter’] which indicates that the respondent had come to consensus prior to a May 16, 2001 8:30 P.M. meeting ;
g. by indicating in the third letter described in paragraph 2.f, above, that “the board of finance is also disappointed with the small decrease offered by the RHAM Board of Education”;
h. filing the notice of the 8:30 P.M. May 16, 2001 meeting of the respondent at the office of the Hebron town clerk at 4:10 P.M. on May 15, 2001, after office hours;
i. preparing a memo for distribution at the May 21, 2001 Hebron town meeting outside the view of the public [hereinafter “the second memo”].
In his letter of complaint, the complainant contended that the respondent has “used [its] authority to sway the public against any educational initiative in Hebron”, and requested:
I. that the Commission overturn the respondent’s actions with respect to the Hebron Town Meeting;
II. that the Commission reconvene the Town meeting; and
III. that the Commission have the RHAM referendum “redone.”
4. With respect to the allegations described in paragraph 3.a and 3.b, above, §1-225(d), G.S., provides in relevant part that:
…[n]otice [of each special meeting of every public agency] 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….
5. It is found that the agenda for the April meeting included the following items: “Final Deliberations and Recommendations for the FY 01-02 Budget” and “Public Remarks.”
6. It is found that, during the course of the April meeting, the respondent discussed several aspects of the fiscal year budget, including electricity costs, wage increases for non-union employees, the BOE budget, and the mill rate. It is also found that the respondent voted to approve an allocation for the BOE budget, which was less than the amount requested by the BOE. It is also found that the town’s contribution to the RHAM budget factors into the final mill rate for the town.
7. It is found that, during the public comment portion of the April meeting, members of the public expressed disagreement over education costs. It is also found that, during such portion of the meeting, it was announced that the respondent had no authority over the RHAM budget, but that it could request that the RHAM budget be reduced for the good of the town. It is found that the RHAM budget was scheduled for a referendum vote on May 8, 2001. It is found that the respondent discussed sending the first letter to the editor of the local newspaper regarding its position with respect to the RHAM referendum vote, to enlighten the public as to the position of the respondent with respect to the RHAM budget and education costs in the town. It is also found that such discussion continued after a member of the public made an objection. It is also found that the members of the respondent came to a consensus that such letter should be sent, although no formal vote was taken during the meeting regarding such action.
8. At the hearing on this matter, the complainant contended that because the respondent failed to specifically list, as a separate agenda item, the sending of the first letter, the respondent violated §1-225(d), G.S.
9. However, it is found that, based upon the evidence presented at the hearing, the discussion of sending the first letter was part of the “Final Deliberations and Recommendations for the FY 01-02 Budget,” a matter which was duly noticed on the April meeting agenda. Consequently, it is found that such matter was not “other business,” within the meaning of §1-225(d), G.S.
10. It is therefore concluded that, under the facts and circumstances of this case, the respondent did not violate the FOI Act as alleged in paragraphs 3.a and 3.b, above.
11. With respect to the allegations described in paragraphs 3.c, 3.d, 3.e, 3.f, and 3.i, above, §1-225(a), G.S., provides in relevant part that: “[t]he meetings of all public agencies, except executive sessions … shall be open to the public….”
12. Section 1-200(2), G.S., in relevant part, defines “meeting” to include:
any communication by or to a quorum of a multimember public agency … by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.
13. It is found that, after the April meeting, members of the respondent communicated among themselves by telephone and e-mail regarding the text of the first letter before it was submitted to a local newspaper. It is found that the first letter was published on May 4, 2001, and that it was a reiteration of the respondent’s position with respect to the proposed RHAM budget.
14. At the hearing in this matter, the respondent stipulated that it violated §1-225(a), G.S., by the communication described in paragraph 13, above. Accordingly, it is concluded that the respondent violated §1-225(a), G.S., as alleged in paragraph 3.c, above. At the hearing in this matter, the chairman of the respondent testified that he was previously unaware e-mail communications could be considered “communications” within the meaning of §1-200(2), G.S., but that he now understood the violation described herein and pledged that the respondent would comply with the provisions of §1-225(a), G.S., in the future.
15. It is found that the RHAM met on May 7, 2001 and that the referendum was defeated on May 8, 2001.
16. It is found that the respondent met on May 9, 2001, and that, at such meeting, the respondent asked the town manager of Hebron [hereinafter “the town manager”] to draft the second letter for its review and that, subsequently, the town manager drafted such letter and sent such letter to the members of the respondent by e-mail to receive their approval before delivering it to the local newspaper. There is no evidence to suggest that members of the respondent communicated among themselves regarding the second letter after the May 9, 2001 meeting. Rather, it is found that some members did not respond, that most members relayed their approval of the draft to the town manager, and that one member offered a clerical suggestion. It is also found that with respect to the second letter, the town manager was acting at the direction of the respondent as authorized at the May 9, 2001 meeting in open session. It is found that such letter was published May 11, 2001.
17. Based upon the facts and circumstances of this case, it is concluded that the e-mails described in paragraph 16, above, did not constitute “communications” within the meaning of §1-200(2), G.S., and that the respondent did not violate §1-225(a), G.S., as alleged in paragraph 3.d, above.
18. It is found that the third letter was written and signed solely by the chairman of the respondent on his own initiative. It is found that such letter summarizes the position of the respondent with respect to education/budget matters. It is concluded that the respondent did not violate §1-225(a), G.S., as alleged in paragraph 3.f, above.
19. With respect to the allegations concerning the first and second memos as described in paragraphs 3.e and 3.i, above, it is found that the town manager prepared such memos for distribution at the town meetings of May 14, 2001 and May 21, 2001, without specific authorization from the respondent. It is further found that the respondent had no opportunity to review such memos prior to their distribution. It is also found that the town manager as a matter of course prepares such memos for the respondent and other town boards and commissions as a way to inform the public about current issues at the town meetings and that such has been the practice of the town manager for several years.
20. Based upon the facts and circumstances of this case, it is concluded that the respondent did not violate §1-225(a), G.S., as alleged in paragraphs 3.e and 3.i, above.
21. It is concluded that the allegation described in paragraph 3.g, above, does not allege a violation of the FOI Act.
22. With respect to the allegation described in paragraph 3.h, above, it is found that the respondent conducted a special meeting on May 16, 2001 at 8:30 P.M., and that the respondent filed notice of such meeting with the Hebron town clerk on May 15, 2001 at approximately 4:10 P.M.
23. Section 1-225(d), G.S., provides in relevant part that:
[n]otice of each special meeting of every public agency… shall be 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 …The secretary or clerk shall cause any notice received under this section to be posted in his office. Such notice shall be given not less than twenty-four hours prior to the time of the special meeting…
24. The complainant contends that the official hours of the town clerk end at 4:00 P.M., and that, therefore, the respondent violated the FOI Act by filing the notice described in paragraph 22, above, less than twenty-four hours before the May 16, 2001 meeting of the respondent.
25. However, it is found that the office of the Hebron town clerk was open at 4:10 P.M. on May 15, 2001, and that such office accepted the filing of the respondent’s notice, as described in paragraph 22, above. Accordingly, it is concluded that the respondent did not violate §1-225(d), G.S., as alleged in the complaint.
26. Based upon the findings and conclusions above, the sanctions requested by the complainant in paragraphs 3.I, 3.II, and 3.III, above, are unwarranted.
On the basis of the record concerning the above-captioned complaint, no order by the Commission is hereby recommended.
Approved by Order of the Freedom of Information Commission at its regular meeting of April 24, 2002.
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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:
Board of Finance,
Town of Hebron
c/o Donald R. Holtman, Esq.
Katz & Seligman
130 Washington Street
Hartford, CT 06106
________________________________
Petrea A. Jones
Acting Clerk of the Commission
FIC/2001-263/FD/paj/4/30/2002