FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on October 14, 2010, 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.      By email dated June 8, 2010 and filed June 9, 2010, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act in the following way:  following a May 24, 2010 regular meeting of the Mansfield Town Council, three Board of Ethics members met in the hallway with the deputy mayor allegedly discussing Board of Ethics business, in violation of the open meeting provisions of the FOI Act. 

 

3.      Prior to the contested case hearing, counsel for the respondent filed a motion pursuant to §1-206(b)(2), G.S., seeking “relief from the Commission regarding FOI appeal complaints filed by Mr. Michael Sikoski.”  Specifically, the respondent requested that, in lieu of a contested case hearing, the Commission schedule a hearing pursuant to §1-206(b)(2), G.S., to determine whether the complainant has taken this appeal “frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken.”  In the moving papers, the respondent contended that the complainant had taken this appeal as a retaliatory measure.  The respondent requested that, if after conducting a hearing, the Commission found that the complainant violated the provisions of §1-206(b)(2), G.S., it grant the respondent injunctive relief against the complainant, pursuant to §1-241, G.S.  The complainant did not respond to the respondent’s motion. 

 

4.      The hearing officer denied the respondent’s motion to forego the contested case hearing.  However, the hearing officer granted the respondent’s request for a §1-206(b)(2), G.S., hearing.  The Commission stated that, at the start of the contested case hearing, the respondent would be permitted to present evidence in support of its contention.

 

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

 

. . .   If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person 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 that person a civil penalty of not less than twenty dollars nor more than one thousand dollars.  The commission shall notify a person of a penalty levied against him pursuant to this subsection by written notice sent by certified or registered mail.  If a person fails to pay the penalty within thirty days of receiving such notice, the superior court for the judicial district of Hartford shall, on application of the commission, issue an order requiring the person to pay the penalty imposed. . . .

 

6.      In support of its position that the complainant had taken this appeal “frivolously, without reasonable grounds and solely for the purpose of harassing” the respondent Board, the respondent raised prior complaints filed against the Board of Ethics.  However, two of the complaints highlighted by the respondent were not filed by this complainant.  See Wassmundt v. Board of Ethics, Town of Mansfield, Docket #FIC 2009-626 (June 18, 2010) (finding a violation of §1-225(d), G.S., because agenda item did not sufficiently apprise the public of matters to be considered at a special meeting); Wassmundt v. Board of Ethics, Town of Mansfield, Docket #FIC 2009-690 (June 9, 2010) (complaint dismissed). Other complaints raised by the respondent in support of its §1-206(b)(2), G.S., position were filed by the complainant.  However, not all of these complaints were dismissed by the Commission with a finding of no violation.  See, e.g. Sikoski v. Board of Ethics, Town of Mansfield, et al, Docket #FIC 2009-656 (June 9, 2010) (finding a violation of §1-225(d), G.S., because respondent added an agenda item to special meeting agenda).  The respondent also provided testimony with regard to what it believed the complainant’s motivation was when he filed his appeal in Docket #FIC 2009-656; but see Sikoski v. Town Clerk, Town of Mansfield, Docket #FIC 2010-242 (March 9, 2010) (complainant failed to appear at the contested case hearing; complaint dismissed based on a finding that no FOI Act violation had occurred). 

 

7.      While previous FOI appeals are not irrelevant to an analysis under §1-206(b)(2), G.S.,  the main focus of this statutory provision is on the motivation of the complainant with regard to the appeal currently pending before the Commission.  See §1-206(b)(2), G.S. (stating, in relevant part, “[i]f the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken. . . .”) (Emphasis supplied).  It would be an adventure in speculation to try at this late date to discern why the complainant filed an appeal with the Commission last year or beyond.  Moreover, more than merely showing what the complainant’s primary motivation was at the time he filed an appeal, the respondent bears the burden of showing that harassment was the only motivation that the complainant had when he filed his appeal.  See id.  (mandating proof that an appeal was filed “solely for the purpose of harassing the agency”).  

8.      With this stringent standard in mind, the Commission finds that the respondent had failed to prove that the complainant filed the instant appeal in violation of §1-206(b)(2), G.S.

9.       Section 1-225(a), G.S., provides in relevant part: “The meetings of all public agencies. . . shall be open to the public.”

 

10.  Section 1-200(2), G.S., provides in relevant part:

“Meeting” means 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. “Meeting” does not include:  Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof.  A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

 

11.  It is found that the Mansfield Town Council held a regularly scheduled meeting on May 24, 2010.  It is further found that one of the agenda items for this meeting was “Revisions to Ethics Ordinance.”  It is found that there was some business conducted with regard to this agenda item, as the meeting minutes provide a statement of each matter that was discussed in connection with revising the ethics ordinance. 

12.  It is further found that four members of the Board of Ethics were present at the May 24, 2010 town council’s meeting.  It is found that one of the members in attendance at the meeting was the complainant. 

13.  It is the complainant’s contention that, when he left the council meeting to take a break, he saw the three other Board of Ethics members speaking with the Deputy Mayor Gregory Haddad and the complainant believes that these individuals were discussing Board of Ethics business. However, the complainant conceded at the contested case hearing that he did not hear the actual topic of the conversation.  The complainant further conceded that he had no evidence with regard to what was said during the conversation. 

14.  It is found that, at a June 3, 2010 meeting of the Board of Ethics, the complainant raised his concern with regard to the March 24, 2010 conversation.  It is found that Nora Stevens, currently the chairwoman pro tem of the Board of Ethics, responded to the complainant’s concerns on the record of the June 3, 2010 meeting, indicating to him that Nancy Cox, the former chairwoman of the Board of Ethics, had posed a question to her in the hallway about scheduling an additional agency meeting.  It is found that Chairwoman Stevens’ explanation to the complainant at the June 3, 2010 meeting is consistent with the testimony she provided to this Commission.  See ¶ 16, below.

 

15.  The Deputy Mayor testified at the contested case hearing that his conversation in the hallway entailed only a brief question to the former Chairwoman Cox about whether it might be a good idea to schedule a meeting of the town attorney, Chairwoman Cox, and himself to discuss the Town Council’s and the Board of Ethics’ revisions to the code of ethics.  He further testified that the purpose of having such a meeting would be to update the town attorney on all of revisions so that he could produce an accurate draft of the code.  Finally, the Deputy Mayor testified that he casually greeted two other board members, he did not have conversations with them and they were not part of his interaction with Chairwoman Cox.    

16.   In addition, Chairwoman Stevens testified at the contested case hearing that, when she departed from the May 24, 2010 meeting, former Chairwoman Cox asked her if she thought the Board of Ethics should schedule a special meeting before the next regularly scheduled meeting.  Chairwoman Stevens replied, “no we have a meeting scheduled for Thursday.”  Chairwoman Stevens did not have any further conversation with former Chairwoman Cox, and she left the building with Ms. Maria Capriola and Ms. Lena Barry. 

17.  It is found that the testimony provided by the Deputy Mayor and Chairwoman Stevens was credible. 

18.  It is found that neither the limited conversation between the Deputy Mayor and former Chairwoman Cox, nor the limited inquiry of Chairwoman Stevens as to whether a special meeting should be scheduled, was a hearing or other proceeding of the respondent.  It is also found that that neither the conversation nor the inquiry was a convening or assembly of a quorum of the respondent, nor were either of these events communications by or to a quorum to discuss or act upon a matter over which the respondent has supervision, control, jurisdiction or advisory power.  Finally, it should be noted that the limited inquiry between former Chairwoman Cox and Chairwoman Stevens is permitted under the law.  See  §1-200(2), G.S. (providing, in relevant part, that  “‘[m]eeting’ does not include. . . communication limited to notice of meetings of any public agency or the agendas thereof”).

 

19.  Based on the foregoing, it is concluded that the respondent did not violate the open meeting provision of §1-225(a), G.S. 

 

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

 

1.      The complaint is dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 27, 2011.

 

 

 

__________________________

Cynthia A. Cannata

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:

 

Michael Sikoski

135 Wildwood Road

 Storrs, CT  06268

 

Board of Ethics, Town of Mansfield

c/o Dennis O’Brien, Esq.

Attorneys O’Brien & Johnson

120 Bolivia Street

Willimantic, CT  06226

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-365/FD/cac/5/2/2011