FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Louis A. Crisci, Jr.,  
  Complainant  
  against   Docket #FIC 2011-083

James M. Dougherty, Chairman,

Town Council, Town of East Haven;

and Town Council, Town of East Haven,

 
  Respondents  December 14, 2011
       

 

            The above-captioned matter was heard as contested case on September 6, 2011, at which time the complainant and the respondents appeared 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 respondents are public agencies within the meaning of §1-200(1)(A), G.S.

 

2.  By letter dated February 14, 2011 and filed with the Freedom of Information Commission (“Commission”) on February 17, 2011, the complainant appealed to the Commission, alleging that, with reference to executive sessions during special meetings held on January 24, 2011 and February 8, 2011, the respondents violated the Freedom of Information Act (“FOIA”). Specifically, the complaint alleged that the respondents: a) “convened a single executive session to discuss multiple matters”; and b) on February 8, 2011 convened an executive session to discuss litigation matters which had been “otherwise settled”. The complainant sought as relief: a) an order declaring null and void all actions at the February 8, 2011 meeting of the respondent Town Council; and, as clarified in the complainant’s letter to the Commission dated April 26, 2011, b) the assessment of civil penalties against respondent Dougherty.

 

3.  Section 1-200, G.S., states 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:  … (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled…. (emphasis added)

 

4.  Section 1-206, G.S., states in relevant parts:

 

(b)(2) In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or 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 and may require the production or copying of any public record.  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. (emphasis added)

 

5.   Section 1-225, G.S., states in relevant parts:

 

(a) The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public. 

 

….

 

 (f) A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.

 

6.  It is found that the Mayor of East Haven is authorized to execute agreements to settle civil litigation against the town and that the town has recently been a party to as many as 1,800 civil lawsuits during a single year. The town has a self insurance reserve fund of approximately $1.25 million, but all settlements are subject to funding by the Town Council. The Town Council must vote an appropriation to authorize the expenditure for a settlement, and particularly if the settlement amount exceeds the amount available in the self insurance reserve fund, the Town Council may also vote to authorize the sale of bonds.

 

7.  At the Commission hearing, the respondents contended that the litigation in question was still “pending” and had not been “otherwise settled” until at least February 8, 2011, as those terms are used in §1-200(6)(B), G.S. The respondents argued that until that date the Town Council had not voted an appropriation or authorized the bonds to fund the settlements at issue. The respondents further maintained that, in order to persuade the Town Council to fund the settlements, the cases at issue had to be explained in considerable detail, including the exposure the town would have had at trial and some review of other open cases to which the town was still a party. The respondents also argued that, in New Haven, the city council had on one occasion refused to make an appropriation to fund the settlement of litigation. In such a circumstance, the plaintiff can petition the court to enforce the settlement agreement.

 

8.  It is found that the executive sessions at the January 24, 2011 and February 8, 2011 special meetings of the respondent Town Council were held to consider five cases that were grouped on the meeting notices as four cases: 1) Sanchez v. Town of East Haven at al.; 2) Jackson v. Town of East Haven at al.; 3) Jane Doe v. Town of East Haven et al.; and 4) Liquori v. Town of East Haven et al. The executive session at the January 24, 2011 meeting lasted exactly one hour, while the duration of the executive session at the February 8, 2011 meeting was forty-two minutes.

 

9.   At the February 8, 2011 meeting, the Deputy Director of Town Affairs stated that, during the executive session at the January 24, 2011 special meeting, there was discussion concerning the option of financing settlements through the normal budget process (as opposed to bonding) and the impact this method of financing would have on taxpayers.     

 

10.  It is found that, before January 24, 2011, a settlement agreement had been fully executed in Sanchez, requiring a payment of $600,000, and with the Mayor executing the settlement agreement on behalf of the town. By its terms, the agreement was effective on October 18, 2010, and a withdrawal of the action was to be filed with the court five days later. The agreement was not subject to any stated contingencies and payments were to be made, each in the amount of $200,000, on October 26, 2010, October 26, 2011, and October 26, 2012. Sanchez involved a police pursuit that resulted in the death of one teenager and extreme injury to two other teenagers.  

 

11.  It is found that, before January 24, 2011, a settlement agreement had been fully executed in Jackson, requiring a payment of $300,000, and with the Mayor executing the settlement agreement on behalf of the town. By its terms, the agreement was effective on October 22, 2010, and a withdrawal of the action was to be filed with the court five days later. The agreement was not subject to any stated contingencies and payments were to be made, each in the amount of $100,000, on October 26, 2010, October 26, 2011, and October 26, 2012. Jackson was a companion case to Sanchez, involving the same police pursuit. (A third companion case, Santiago v. Mulhern, was also part of the group of settled cases considered by the respondent Town Council at the January 24, 2011 and February 8, 2011 special meetings. Again, the Mayor executed the settlement agreement on behalf of the town. By its terms, the agreement was effective on October 18, 2010, and a withdrawal of the action was to be filed with the court five days later. The agreement was not subject to any stated contingencies. A payment was to be made in the amount of $10,000 not later than October 26, 2010, provided the plaintiff had filed a withdrawal.)

 

12.  It is further found that there was a handout at the executive sessions of all other open cases that were then pending against the Town of East Haven. Moreover, there was discussion of how medical bills and lost wages would have been handled if Sanchez and Jackson had been fully litigated. The respondents argued that a public discussion of these matters would have compromised the Town’s defense of other, still pending cases. See last sentence, paragraph 24, below.   

 

13.  It is also found that counsel for the town, attorney Hugh Keefe, referred to Sanchez and Jackson as “settled” at the February 8, 2011 special meeting of the respondent Town Council.

  

14.  It is found that in Jane Doe a withdrawal and a release, both dated December 17, 2010, were executed. There was testimony at the hearing that they were held in escrow for some period. A check in the amount of $72,500, against the Town of East Haven general fund, was dated February 3, 2011. Jane Doe was a case involving allegations of sexual harassment.

 

15.  It is found that in Liquori a memorandum of understanding, dated January 20, 2011, constituted an “agreement in principle” to settle the pending litigation, subject to the drafting of a stipulation of dismissal and the approval of the agreement by the federal court. The memorandum of understanding was signed by an assistant corporation counsel on behalf of the Town of East Haven. It called for a $210,000 settlement, with payments to be made of $105,000 on February 5, 2011 and on February 5, 2012. A payment order for $105,000 was dated February 22, 2011. Liquori was a case involving allegations of age discrimination.

 

16.  It is found that the self insurance reserve fund had insufficient funds to finance the settlements considered at the January 24, 2011 and February 8, 2011 special meetings of the respondent Town Council. Attorney Hugh Keefe attended both special meetings in order to explain the settlements which he acknowledged to be substantial for the Town of East Haven. His explanation included discussion of a recent $14,000,000 verdict in a pursuit case in the nearby town of Clinton. Following the executive session at the February 8, 2011 special meeting, the respondent Town Council voted to appropriate $1,250,000 to settle litigation and to authorize the issuance of $1,250,000 of bonds to finance said appropriation.

 

17.  The complainant and the respondents each filed post hearing briefs containing legal argument and asserting additional facts. The complainant’s brief included, as exhibits, Judicial Branch printouts showing that Sanchez was withdrawn as to all defendants on October 19, 2010, and that a judgment of dismissal was entered in Jackson on January 7, 2011. The respondents’ brief asserted that the February 8, 2011 appropriation of funds and bond authorization was invalidated “for failure to publish a Notice of Enactment in a timely manner”, and that the bond ordinance was re-enacted by the respondent Town Council on September 6, 2011.

 

18.  The respondents’ well reasoned brief cited two appellate decisions upholding the restoration of cases to the court docket following settlement agreements and withdrawals. Sicaras v. City of Hartford, 44 Conn. App. 771 (1997); Audubon Parking Associates Limited Partnership v. Barclay and Stubbs, Inc., 224 Conn. 804 (1993). In Sicaras, the motion to restore the case to the docket was filed eleven months after the withdrawal. However, these cases are rare exceptions to the general rule which, respondents acknowledge, is that “withdrawals are analogous to final judgments.” Sicaras at 775. Of course, courts reopen cases on occasion when settlement agreements go awry. Such occurrences do not negate the conclusion that, previously, these cases had been settled. As the complainant correctly argues in his brief, the exchange of promises in a settlement agreement constitutes the consideration of a binding contract. Litigation cannot be considered to be pending until “the last dollar is paid” in multi-year structured settlements. Moreover, §7-374b, G.S., requires a final judgment or a “settled claim” (emphasis added) as a condition precedent to authorizing the issuance of bonds.

 

19.  The respondents’ post hearing brief also cited Docket #FIC 2002-313; Jeffrey B. Cohen and Record-Journal v. Robert F. Parisi, Chairman, Town Council, Town of Wallingford; Lois Doherty; Gerald E. Farrell, Jr.; Stephen W. Knight; Iris F. Papale; Raymond J. Rys, Sr.; Henry Toman, as members, Town Council, Town of Wallingford; William W. Dickinson, Jr., Mayor, Town of Wallingford; and Town Council, Town of Wallingford (appeal dismissed, holding plaintiff lacked standing, Michael Brodinsky v. FOIC, CV 03 0520584 S, J.D. of New Britain, December 6, 2004). The Commission decision is generally of interest concerning the statutory language that “pending litigation” includes “the agency’s consideration of action…to implement legal relief….” §1-200(9), G.S. Nonetheless, it is concluded that Docket #FIC 2002-313 concerned the advice of counsel which would have been highly prejudicial in possible future litigation if the advice had been given at an open town council meeting. In the present case, because Sanchez, Jackson, and Jane Doe had been settled, the likelihood of further litigation concerning these matters was remote.

 

20.  It is concluded that Sanchez, Jackson, and Jane Doe had been settled before the January 24, 2011 meeting of the respondent Town Council. At its meetings on January 24, 2011 and February 8, 2011, the Town Council was merely determining the means to implement a contract that the town had already lawfully entered.

 

21.  It is therefore concluded that, during the discussions of Sanchez, Jackson, and Jane Doe, the executive sessions held by the respondent Town Council on January 24, 2011 and February 8, 2011 were not to discuss “pending litigation”, as provided by §1-200(6)(B), G.S. These discussions of these cases in executive session violated the requirements of §1-225(a), G.S.

    

22.  It is also concluded that Liquori was pending and not settled at the time of the February 8, 2011 meeting of the respondent Town Council.

 

23.  It is therefore concluded that, during the discussions of Liquori, the executive sessions held by the respondent Town Council on January 24, 2011 and February 8, 2011 were to discuss “pending litigation”, as provided by §1-200(6)(B), G.S. These discussions of this case in executive session did not violate the requirements of §1-225(a), G.S.

 

24.  It is finally concluded that the discussion at the January 24, 2011 executive session concerning whether to finance through the normal budget process (as opposed to bonding) did not relate to strategy and negotiations with respect to pending litigation and therefore violated the requirements of §1-225(a), G.S. Given the intermingling of the lawful executive sessions to discuss strategy and negotiations with respect to Liquori, together with the unlawful executive sessions to discuss Sanchez, Jackson, Jane Doe, and the financing options available to the town, the complaint correctly focused on the problems of “a single executive session to discuss multiple matters”.

 

25.  Finally, before addressing remedies, it should be noted that the FOIA conclusions herein and the legal procedures for settling civil litigation against municipalities can be practically reconciled into a workable system. A lawful executive session may be held to discuss a written communication “privileged by the attorney-client relationship”. §1-210(b)(10), G.S., and §1-200(6)(E), G.S.; but see §1-231(b), G.S. If the respondent Town Council had considered a memorandum of law discussing generally Sanchez, Jackson, and Jane Doe at the executive sessions on the January 24, 2011 and February 8, 2011, the executive sessions would not have violated the requirements of §1-225(a), G.S. (Of course, such executive sessions must be limited to discussion of the written attorney-client communication.) A memorandum from attorney to client might logically have included discussion of the “issues and negotiation strategies” in Sanchez and Jackson that “the Town may need to employ in resolving an ongoing wrongful death claim” in Jones v. Town of East Haven, which apparently is “based on somewhat similar circumstances”. Respondents’ brief dated September 30, 2011, pp. 8-9. 

   

26.  Concerning the complainant’s request for civil penalties, pursuant to §1-206(b)(2), G.S., the Commission finds that the Town of East Haven often uses a bifurcated procedure to resolve civil litigation without litigation. In the first step, the cases are undeniably settled, when, as in Sanchez, Jackson, and Jane Doe, the mayor signs a binding settlement agreement without any conditions precedent. In each of these three cases, settlement payments were also issued before the cases reached the respondent Town Council. Then in the second step, the respondent Town Council appropriated funds and authorized bonds to provide a funding source for the balance of the settlements. Even though Sanchez, Jackson, and Jane Doe were settled, a detailed discussion of the settlements was required to persuade the respondent Town Council to provide the funding source. This discussion could have been held in a lawful executive session as set forth in paragraph 25. Instead, a different unlawful reason was stated as the reason for the executive session discussions of Sanchez, Jackson, and Jane Doe. However, even the reason of “pending litigation” was colorable (see paragraphs 7, 18, 19, 22 and 23). Some of the discussion of the four noticed cases at the executive sessions on the January 24, 2011 and February 8, 2011 arguably reflected the town’s strategy in other cases that were still pending (see paragraphs 12 and 25). As a result, the Commission finds that there were reasonable grounds for the denial, pursuant to §1-206(b)(2), G.S. Accordingly, there are no grounds for the assessment of a civil penalty against the respondent Dougherty.

 

27.  Because, as discussed at paragraph 17, the appropriation of funds and the bond authorization at the February 8, 2011 meeting has apparently already been invalidated, an order declaring this action null and void would be moot. For reasons including those discussed at paragraph 26, the Commission, in its discretion, declines to declare null and void the reenactment of the bond ordinance by respondent Town Council which apparently took place at its September 6, 2011 meeting.        

         

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

 

1.  Henceforth, the respondents shall strictly comply with the requirements of §1-225(a), G.S., and the respondent Town Council shall not hold executive sessions based on the reason of “pending litigation” in order to consider executed settlement agreements which are not subject to conditions precedent and are in full force and effect.  

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 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:

 

Louis A. Crisci, Jr.

c/o Joseph A. DiSilvestro, Esq.

Kolb & Associates, P.C.

49 High Street

East Haven, CT  06512

 

James M. Dougherty, Chairman, Town Council, Town of East Haven; and

Town Council, Town of East Haven

c/o S. Frank D’Ercole, Esq.

Robinson & Cole

280 Trumbull Street

Hartford, CT  06103

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2011-083/FD/cac/12/14/2011