OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by||FINAL DECISION|
|Frank F. Marcucio, III,|
|against||Docket #FIC 2004-245|
Board of Directors, Valley Emergency
Medical Services, Inc.,
|Respondent||March 23, 2005|
The above-captioned matter was heard as a contested case on September 30, 2004, 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. By letter of complaint dated and filed with the Commission on May 21, 2004, the complainant (a member of the respondent) appealed to the Commission alleging that the respondent violated the Freedom of Information (hereinafter “FOI”) Act by filing the agenda for its May 20, 2004 regular meeting less than twenty-four hours before such meeting and conducting business that was not properly placed on the agenda. The complainant also alleged that the agenda was not specific, lacked detail and listed old business as an item for discussion. The complainant asked that the Commission declare null and void all actions that were taken after he left the meeting.
2. The respondent maintains that Valley Emergency Medical Services, Inc. (VEMS) is not a public agency within the meaning of §1-200(1), G.S., and therefore not subject to the FOI Act.
3. Section 1-200(1), G.S., defines a “public agency” or “agency,” in relevant part to mean:
…(A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official…(B) Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law; or (C) Any “implementing agency,” as defined in section 32-222.
4. It is found that neither subdivision (A) or (C) of subsection (1) of §1-200, G.S., applies in this case. Consequently, for the respondent to be considered a public agency for purposes of the FOI Act, over which the commission has jurisdiction, it must be determined whether VEMS is “deemed to be the functional equivalent of a public agency pursuant to law,” within the meaning of §1-200(1)(B), G.S.
5. In Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544, 554 (1980) (“Woodstock”), the Supreme Court adopted the “functional equivalent” test to determine whether an entity is a public agency. The test for functional equivalence to a public agency consists of the following four criteria: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government.
6. Subsequently, in Connecticut Humane Society v. FOI Commission, 281 Conn. 757, 761 (1991), the Supreme Court elaborated that all four factors set forth in Woodstock are not necessary for a finding of functional equivalence, but rather that “all relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.”
7. It is found that VEMS is authorized to provide paramedic intercept care services to persons within a certain geographical location known as a Primary Service Area (PSA) covering the communities of Shelton, Ansonia, Seymour, Oxford and Derby. VEMS, however, is not authorized to transport people. It is the only paramedic intercept provider in those five communities. VEMS operates out of Griffin Hospital and was created in approximately 1982 by a group of individuals as a private, non-profit corporation, as a result of an effort to regionalize paramedic services in the five communities.
8. It is also found that the respondent board of directors is the governing body of VEMS and is comprised of a representative from each of the communities in the PSA, a representative from each of the volunteer ambulance services in the PSA, and representatives from Griffin Hospital, the community and the private ambulance providers, and the VEMS director.
9. It is further found that the VEMS budget is comprised of grants and third party and patient payments. Although the respondent does not currently receive funding from municipalities, it has received funding from municipalities in the past. It is also found that the vehicle that the VEMS paramedics use is parked at the ECHO Hose Ambulance facility, a building owned by the city of Shelton.
10. It is found that the respondent is subject to state statutes governing emergency medical services, particularly §19a-175, G.S., et seq.
11. The respondent is subject to the regulations of the state’s Office of Emergency Medical Services, pursuant to §19a–178-179, G.S., and §19a-176,G.S., also provides that the state Department of Public Health is responsible for the planning, coordination and administration of a state-wide emergency medical care service system, utilizing the services of local emergency medical services councils and the state Department of Public Health.
12. In addition §19a-183, G.S., requires the establishment of regional emergency medical services councils, comprised of towns designated by the commissioner of public health services and §19a-184, G.S., requires emergency medical services councils to forward to the Commissioner of the Department of Public Health an emergency medical services plan for its region.
13. It is also found that §19a-182(b), G.S., requires each emergency medical services council to develop and annually revise a plan for the delivery of emergency medical services in its area. It is found that the provision of paramedic intercept service is among the required components of an emergency medical services plan pursuant to §19a-182(b), G.S.
14. Based on the foregoing, it is found that:
(a) with respect to the first criterion, VEMS performs a governmental function by virtue of the statutory scheme set forth in paragraphs 10-13 of the findings, above;
(b) with respect to the second criterion, the government does not substantially fund VEMS;
(c) with respect to the third criterion, VEMS is substantially regulated by the state by virtue of the statutes and regulations referred to in paragraphs 10-13, of the findings, above; and
(d) with respect to the fourth criterion, VEMS was not created by the government.
15. It is concluded that based on the totality of relevant criterion, that VEMS is the functional equivalent of a public agency within the meaning of §1-200(1)(B), G.S., and therefore subject to the jurisdiction of this Commission. See Yantic Volunteer Fire Co. v. FOI Commission, 44 Conn. Sup. 230 (1995), affirmed 42 Conn. App. 519 (1996), and Bergin and Ellis v. Glastonbury Volunteer Ambulance Association, Inc., #FIC 91-59, for similar conclusions in analogous cases.
16. Therefore, respondent’s motion to dismiss based on the argument that the respondent is not the functional equivalent of a public agency is denied.
17. It is found that the respondent held a regular meeting at 7:00 P.M. on May 20, 2004 (hereinafter “meeting”) that was attended by the complainant.
18. No evidence was presented in this case that the agenda for the meeting was unavailable in the respondent’s office or that anyone had attempted and failed to gain access to the meeting agenda at the respondent’s office.
19. Section 1-225(c), G.S., provides in relevant part:
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, in such agency's regular office or place of business or, if there is no such office or place of business, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state. Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.
20. It is found that the agenda of the regular meeting was available to the public and filed at the respondent’s office at least twenty-four hours in advance of such meeting within the meaning of §1-225(c), G.S.; and it is therefore concluded that in this regard the respondent did not violate the provisions of §1-225(c), G.S., as alleged in the complaint.
21. At the hearing in this matter, the complainant claimed that he did not receive the agenda of the meeting.
22. Section 1-227, G.S., provides in pertinent part that a public agency “shall, where practicable, give notice by mail of each regular meeting, and of any special meeting which is called, at least one week prior to the date set for the meeting, to any person who has filed a written request for such notice with such body, except that such body may give such notice as it deems practical of special meetings called less than seven days prior to the date set for the meeting….”
23. It is found that there was no evidence that the complainant filed a written request with the respondent to be notified of any meeting.
24. It is further found that the respondent was not obliged by §1-227, G.S., to provide written notice to the complainant of any particular meeting.
25. Accordingly, it is concluded that the respondent did not violate §1-227, G.S., as alleged in the complaint.
26. The complainant contends that the agenda lacked the detail and specificity required for regular meeting agendas under the FOI Act. The complainant also contends that the respondent improperly held discussions regarding the community paramedic program, a topic not specifically identified on the meeting agenda.
27. The Commission has ruled in numerous cases that the agendas of regular meetings must be so stated as to fairly apprise the public of the matters to be discussed or acted upon. See Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court Docket No. CV 99-0497917-S, reversed on other grounds, 66 Conn. App. 279 (2001).
28. It is found that the meeting agenda, in relevant part, listed “old business” as an item for discussion.
29. It is also found that there were discussions and votes regarding the community paramedic program held under the agenda item “old business” at the meeting.
30. It is further found that the respondent did not obtain an affirmative vote of two-thirds of its members present and voting prior to considering and acting upon the matters described in paragraph 29, above.
31. It is found that the agenda item “old business” did not fairly apprise the public of matters to be considered at the meeting under that item.
32. Therefore, it is found that the matters described in paragraph 29 of the findings, above, constituted subsequent business not included on the filed agenda, pursuant to §1-225(c), G.S., and consequently should have been considered only after a two-thirds vote to add the matters to the agenda, in accordance with §1-225(c), G.S., and it is therefore concluded that the respondent violated §1-225(c), G.S., in that regard.
33. At the hearing on this matter the respondent argued that the VEMS bylaws provide, among other things, that any business may be transacted at any regular meeting of the board of directors, and therefore, no additional vote was necessary. However, bylaws of a public agency cannot supercede the requirements of the FOI Act.
34. The commission declines to declare actions taken at the meeting null and void.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall conduct itself in compliance with the requirements of the FOI Act.
2. In particular, the respondent shall henceforth act in strict compliance with the requirements of §1-225(c), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 23, 2005.
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:
Frank F. Marcucio, III
Seymour Ambulance Association
Four Wakeley Street
Seymour, CT 06483
Board of Directors, Valley Emergency
Medical Services, Inc.
c/o Dominick J. Thomas, Jr., Esq.
Cohen and Thomas
315 Main Street
PO Box 313
Derby, CT 06418
Petrea A. Jones
Acting Clerk of the Commission