FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on August 26, 2007, at which time the complainant and the respondents 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.      It is found that the complainant has been a member of the respondent Old Mystic Fire Department (“OMFD”) since 2001.

 

2.   By letter received and filed March 28, 2007, and supplemented with additional letters on April 9, 2007 and April 23, 2007, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       holding improper executive sessions at the meetings of the OMFD on March 8, 2007; March 22, 2007; and April 9, 2007;

 

b.      failing to provide proper notice for the meetings of March 8, 2007; March 22, 2007; and April 9, 2007;

 

c.       prohibiting him from attending the meeting of April 9, 2007; and

 

d.      refusing to permit him to videotape the meetings of March 22, 2007 and April 9, 2007.

 

3.  It is concluded that the respondent Old Mystic Fire District (“District”) is a public agency within the meaning of §1-200(1)(A), G.S.  However, it is found that none of the allegations alleged in the complaint and as described below involve the actions of the District.  Therefore, it is concluded that the District did not violate the FOI Act with respect to any of the allegations in this matter.  Further, unless otherwise indicated, any findings and conclusions set forth below, which reference respondents, do not include the District. 

 

4.  The respondents contend that the Old Mystic Fire Department (“OMFD”) is not a public agency subject to the meeting requirements of the FOI Act.  The respondents also claim that the meetings described in paragraph 2, above, were not meetings within the meaning of §1-200(2), G.S.

 

5.   It is found that, following six months of initial probationary status, the complainant became a “social” member of the OMFD in January 2002.  It is found that the membership of the OMFD elevated the complainant to “regular” status in October 2002.

 

6.  It is found that regular members of the OMFD qualify for quarterly compensation.

 

7.  It is found that the complainant’s status reverted to social membership when he moved out of state in 2004.  It is found that, when the complainant returned to Connecticut in February 2007, he began to work towards regaining his status as a regular member of the OMFD.  It is found that a social member becomes a regular member by attending drills and meetings of the OMFD.

 

            8.  It is found that shortly before the events described in this matter, below, the complainant was three points short of regaining his status as a regular member of the OMFD.

 

            9.  It is found that on March 5, 2007, the complainant received written notice that relieved him of duty and required him to attend a meeting of the officers and board members of the OMFD on March 8, 2007, at 6:00 p.m.

 

            10.  It is found that a 17-member panel of officers and board members of the OMFD convened on March 8, 2007, at 6:00 p.m., for the sole purpose of investigating and deciding upon appropriate disciplinary action against the complainant to recommend to the regular membership of the OMFD.

 

            11.  It is found that, at the time of the March 8, 2007, meeting of the OMFD, the complainant requested that the meeting be open to the public so that his wife and children could attend.

            12.  It is found that the respondent Captain Christopher Clarkin refused the complainant’s request.  It is found that the complainant’s wife and children were present, but were denied the opportunity to attend the meeting on March 8, 2007.

 

            13.  It is found that Clarkin and the other officers and board members of the panel granted the complainant’s motion for a continuance of the disciplinary proceeding in order to permit the complainant to prepare sufficiently for the proceeding against him.

 

            14.  It is found that the 17-member panel of officers and board members reconvened on March 22, 2007, at 6:00 p.m.  It is further found that the complainant again requested that the meeting be open to the public.  The complainant also told the respondent Clarkin that he wished to videotape the meeting.

 

            15.  It is found that the respondent Clarkin denied both the complainant’s requests to open the meeting on March 22, 2007 and to record the proceedings.  It is found that the complainant’s wife and children were present, but were denied the opportunity to attend the meeting.

 

            16.  It is found that, at the March 22, 2007 meeting, the officers and the board members heard from the complainant concerning the allegations against him.  It is found that the officers and board members then dismissed the complainant from the meeting, in order to discuss and vote on the level of discipline to recommend to the full membership of the OMFD.

 

            17.  It is found that the discussion and vote, described in paragraph 16, above, took place in a closed session, which neither the complainant nor the public was permitted to attend.

 

            18.  It is found that the regular membership of the OMFD voted at its regular meeting of April 9, 2007 to follow the panel’s recommendation and remove the complainant from the OMFD’s membership list. 

 

            19.  It is found that the respondent OMFD Chief Kenneth Richards refused the complainant’s request to attend the April 9, 2007 regular meeting and his request to videotape the proceeding.

 

            20.  With regard to whether the OMFD is a public agency, §1-200(1)(B), G.S., provides, in relevant part: “ ‘Public agency’ or ‘agency’ means: … Any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law… .”

 

21.  The test for determining whether an entity such as the respondent is the functional equivalent of a public agency within the meaning of §1-200(a)(1), G.S., is set forth in Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544 (1980), and consists of the following four criteria:

 

a.       whether the entity performs a governmental function;

 

b.      the level of government funding;

 

c.       the extent of government involvement or regulation; and

 

d.      whether the entity was created by government.

22.  The Supreme Court in Connecticut Humane Society v. FOI Commission, 218 Conn. 757, 761 (1991), advocated a case-by-case application of the Woodstock criteria, and established that all four of the foregoing criteria are not necessary for a finding of “functional equivalence.”  Rather “[a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.”

 

           23.  With respect to whether the respondent OMFD performs a governmental function, it is found that the purpose and function of the OMFD, as well as the duties it has assumed, are fire prevention, fire suppression, code enforcement, rescue, and first emergency medical response.

 

24.   It is found that the respondent OMFD performs a governmental function.

 

           25.  With respect to the level of government funding that the OMFD receives, it is found that the OMFD operates exclusively from money provided by its contract with the District.  It is found that the Connecticut General Assembly, which created the District in 1962, gave the District the power to tax the residents within the 26 square miles of the District in order to raise money to fund fire services for the District.

 

           26.  It is found that the OMFD is composed of 41 active volunteers and paid personnel.  It is found that all compensation is drawn from funds raised by taxes levied by the District.  It is found that the only equipment that the OMFD owns is an antique pump. It is found that the District purchases and owns all the buildings, apparatus, property and other equipment that the OMFD uses to perform its firefighting services.

 

           27.  It is found that the volunteer members of the OMFD pay annual membership dues.

 

28.   Nevertheless, it is found that the level of government funding of the OMFD is

nearly, if not totally, complete.

 

           29.  With respect to the extent of government involvement or regulation, the Commission takes administrative notice of a variety of state laws regulating fire protection and volunteer firefighters, including §§7-314, 7-314a, 7-322a, and 7-322b, G.S. 

 

           30.  The Commission takes administrative notice of §7-308, G.S., which obligates a municipality to assume liability for damages to persons or property caused by the responsible volunteer fire companies’ members.

 

           31.  The Commission takes administrative notice of §7-314b, G.S., which makes active volunteer firefighters eligible for workers’ compensation benefits.  The Commission also takes administrative notice of §7-313c, G.S., which authorizes a municipality to indemnify volunteer members of fire companies for tuition and textbook expenses incurred in the successful completion of fire technology and administration courses.

 

           32.  It is found that the respondent OMFD is subject to substantial government involvement and regulation.

 

           33.  With respect to the final factor, whether the entity was created by government, it is found that the OMFD was privately founded in 1837.

 

           34.  It is found that the respondent OMFD was not created by government.

 

           35.  Based on the totality of the factors considered, it is concluded that the respondent OMFD is a public agency within the meaning of §1-200(1)(B), G.S., and, therefore, is subject to the FOI Act.

 

           36.  With respect to the respondents’ claim that the meetings described in paragraph 2, above, were not meetings within the meaning of §1-200(2), G.S., that provision defines “meeting” as:

 

“… 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….”

 

37.  It is found that the OMFD is composed of social and active members.  It is found that the constitution and by-laws specify that the leadership of the OMFD consists of a nine-member board of directors elected from and by the regular members, and eleven officers, who are also elected from the general membership, with the exception of the president, who is elected from the board of directors.  It is found that the constitution and by-laws of the OMFD require all officers and members of the board of directors to be regular members of the OMFD.

           

           38.  It is found that five members of the board of directors constitute a quorum.

 

           39.  It is found that the proceedings on March 8, 2007, March 22, 2007, and April 9, 2007, described in paragraph 2, above, were proceedings of “a multimember public agency,” as that term is used in §1-200(2), G.S.

 

           40.  It is found that a quorum of the board of directors and officers met on the dates described in paragraph 2, above, in order to discuss or act upon the matter of disciplining the complainant, who was a member of the OMFD. 

 

           41.  It is found that the board of directors and officers followed the procedure provided in the OMFD’s constitution and by-laws for investigating and acting upon allegations of misconduct by members.

 

           42.  It is found, therefore, that the board of directors and officers met on the dates described in paragraph 2, above, “to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power,” within the meaning of §1-200(2), G.S.

 

           43.  The respondents, however, contend that the gathering of the board of directors and officers on the dates described in paragraph 2, above, was analogous to “strategy or negotiations with respect to collective bargaining.”

 

           44.  Section 1-200(2), G.S., provides: “ ‘Meeting’ does not include: … strategy or negotiations with respect to collective bargaining.”

 

           45.  It is found that the respondents submitted no evidence that the discussions in the meetings described in paragraph 2, above, were “strategy or negotiations.” It is further found that the procedures followed by the respondents in gathering to discuss possible disciplinary measures against the complainant were governed by the OMFD’s constitution and by-laws, not by a collective bargaining contract. 

 

           46.  In addition, it is found that the respondents submitted no evidence of a collective bargaining agreement binding the OMFD and the complainant.

 

           47.  Accordingly, it is concluded that the exception to the definition of meeting for “strategy and negotiation with respect to collective bargaining” does not apply to the gatherings of the board of directors and officers on the dates described in paragraph 2, above.

 

           48.  It is further concluded that the meetings of the board of directors and officers on the dates described in paragraph 2, above, were meetings within the meaning of §1-200(2), G.S.; therefore, they are subject to the FOI Act.

 

           49.  With respect to the complainant’s allegation, described in paragraph 2.a, above, that the OMFD held illegal executive sessions at its meetings of March 8, 2007, March 22, 2007, and April 9, 2007, §1-200(6), G.S., provides in relevant part:

 

(6)  “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. (Emphasis added.)

 

           50.  It is found that the complainant was subject to the authority of the respondent OMFD.  It is further found that the respondents discussed the complainant’s appointment, employment, performance, evaluation or dismissal in the meetings described in paragraph 2.a, above.

 

           51.  It is found that the complainant emphatically expressed his demand several times that the OMFD discuss his performance at an open meeting.

 

           52.  It is found that the respondents repeatedly refused to hold their discussion in public.

 

           53.  Accordingly, it is concluded that the respondents violated the FOI Act with respect to the allegation described in paragraph 2.a, above.

 

           54.  With respect to the allegation described in paragraph 2.b, above, the respondents allegedly failed to provide proper notice for the meetings of March 8, 2007, March 22, 2007, and April 9, 2007.  Section 1-225(c), G.S., requires that “[t]he 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.”

 

           55.  Section 1-225(d), G.S., requires 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 each municipal member for any multitown district or agency.”

 

           56.  It is found that the respondents considered the OMFD meetings of March 8, 2007 and March 15, 2007, to be special meetings of the OMFD, and considered the meeting of April 9, 2007, to be a regular meeting of the membership of the OMFD.

 

           57.  It is found that it is the respondents’ practice never to file agendas of any of its regular meetings or to file notice of any of its special meetings, including those described in paragraph 2.b, above, pursuant to §1-225, G.S.

 

           58.  It is also found that the respondents failed to prove that they filed any agendas or notices of the meetings described in paragraph 2.b, above.

 

           59.  Accordingly, it is concluded that the respondents violated the FOI Act with respect to the allegation described in paragraph 2.b, above.

 

           60.  With respect to the allegation described in paragraph 2.c, above, that the respondents impermissibly barred the complainant from attending its meeting on April 9, 2007, §1-225(a), G.S., states, “The meetings of all public agencies … shall be open to the public.”

 

           61.  It is found that the respondent Richards excluded the complainant because he had been relieved of duty and was not allowed on OMFD property.

 

           62.  It is found that the respondents submitted no evidence that the complainant posed any threat to the orderly conduct of the April 9, 2007 meeting.

 

           63.  It is found that it is the respondents’ practice never to open its meetings to any one other than its members.

 

           64.  Accordingly, it is concluded that the respondents violated the FOI Act with respect to the allegation described in paragraph 2.c, above.

 

           65.  With respect to the allegation described in paragraph 2.d, above, that the respondents refused to permit the complainant to videotape the meetings of March 22, 2007 and April 9, 2007, §1-226 (a), G.S., provides:

 

At any meeting of a public agency which is open to the public … proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting, by any person…  

 

           66.  It is found that the respondent Clarkin refused to permit the complainant to use a camcorder at the March 22, 2007 meeting.  It is found that the complainant informed the respondent Richards in advance of the April 9, 2007 meeting that he intended to use a camcorder to record the meeting.  It is found that the respondent Richards refused to permit the complainant to attend the meeting, and, therefore, refused to permit him to record it.

 

           67.  It is found that it is the respondents’ practice never to permit recording of its meetings.

 

           68.  Accordingly, it is concluded that the respondents violated the FOI Act with respect to the allegation described in paragraph 2.d, above. 

 

           69.  Section 1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission … the commission may … order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend … In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars....

70.  It is found that the violations described in paragraphs 53, 59, 64, and 68, were without reasonable grounds.  It is further found that the respondent Clarkin is the official directly responsible for the violation described in paragraph 53, above.  It is found that the respondent Richards is the official directly responsible for the violation described in paragraph 64, above.  It is found that the respondents Clarkin and Richards are the officials directly responsible for the violation described in paragraph 68, above.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

1.  With respect to the respondent Old Mystic Fire District, only, the complaint is dismissed.

 

2.      The respondents’ actions, concerning any investigation of misconduct and any disciplinary measures imposed against the complainant in the OMFD’s meetings of March 22, 2007 and April 9, 2007, are hereby declared null and void. 

 

3.      Henceforth, the respondents shall adhere to the provisions of the FOI Act.

 

4.      Forthwith, the respondents Clarkin and Richards shall each remit to the Commission a civil penalty in the amount of $100.00.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of November 14, 2007.

 

 

________________________________

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:

 

Joao Godoy

156 West Main Street

Apt. D-5

Avon, CT 06001

           

Old Mystic Fire District; Old Mystic

Fire Department; Board of Directors,

Old Mystic Fire Department; Woody

Klewin, Claude Flickinger, Edward J.

Ryan, Carl Strand, Craig Mateyov, Sr.,

Sandra R. Pank, Brian Quagliaroli, and

Michelle Greiner, as members, Board

of Directors, Old Mystic Fire Department;

and Kenneth W. Richards, Jr., Robert E.
Sullivan, Keith W. Richards, Robert O.

Bjork, Christopher M. Clarkin, Kevin Czapla,

Christopher J. Stearns, and Shawn Kotfer,

as members, Old Mystic Fire Department

c/o Brian K. Estep. Esq.

Conway & Londregan, PC

38 Huntington Street

PO Box 1351

New London, CT 06320

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2007-191FD/paj/11/19/2007