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FREEDOM OF INFORMATION COMMISSION |
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In
the Matter of a Request |
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Advisory Opinion #56 |
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Selectman, Stafford, Applicant |
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On January 25, 1984, the Commission considered and agreed to respond to the request for an advisory opinion filed by John C. Hinchliffe. Jr., Selectman of the Town of Stafford.
The Town of
Stafford has a three‑member board of selectmen as a legislative body. The
first selectman is both a member of that collegial body and the town's chief administrative
officer. In his request, the applicant notes that he has had difficulty with
the first selectman establishing meeting agenda items, inquiring about town
procedures and policies and seeking information requested of constituents. This
difficulty is apparently occasioned by the view that any communication between
the first selectman and the applicant (who is a minority party selectman) would
constitute a "meeting" under the Freedom of Information (FOI) Act and
would be in violation
of that law unless conducted in
accordance with the requirements of Conn. Gen. Stat.§1‑21
et seg.
In essence, the applicant seeks the Commission's opinion as to whether there are any circumstances in which a selectman, who is a member of a three‑member board of selectmen, can communicate with a first selectman about town business without complying with the open meetings provisions of the FOI Act. And, if so, what those circumstances are.
For purposes of the FOI Act. "meeting" is defined in Conn. Gen. Stat.§1‑18a(b) 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.
§1‑18a(b), however, also explicitly sets forth a number of exclusions from its definition of "meeting." These exclusions consist of:
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.
Thus, in response to the applicant's specific inquiry, the Commission believes that there are a number of circumstances in which the open meetings provisions of the FOI Act do not apply to communication between a first selectman and a minority party member of a three‑member board of selectmen. Such circumstances are carefully circumscribed in §1‑18a(b) and as exceptions to the general rule in favor of open meetings, they must be strictly construed and not extended beyond their evident intent. Willoughby v. New Haven, 123 Conn. 446, 454 (1937); Board of Trustees of Woodstock Academy v. Freedom of Information Commission, 181 Conn. 544, 550 (1980).
Applying these exclusions to the situation presented by the applicant's request, several facts are especially significant. First, the applicant is not a member of the same political party as the first selectman. Consequently, the exclusion for a "caucus" as defined in §1‑18a(b), does not apply. Second, two members of the three‑member board of selectmen presumably constitute a quorum. As a result, in the absence of a statutory exclusion, a "meeting" would ordinarily occur whenever two members of that board communicated about agency business. Third, the first selectman is not only a member of the board of selectmen, a public agency as defined in Conn. Gen. Stat. §1‑18a(a), but as the town's chief administrative officer, he is also a single‑member public agency under that section when acting in that official position.
In the context of this request, the Commission believes that the members of the board of selectmen may communicate with each other with respect to notices of agency meetings and their agendas without complying with the provisions of Conn. Gen. Stat.§1‑21 et seq. The Commission believes that this exclusion was intended to prevent the kind of practical difficulty that would exist if members of the same agency could not communicate concerning the call of meetings or the setting of their agendas. The Commission also believes, however, that this exclusion was not intended to limit public access in any meaningful way to the process by which governmental decisions and policies are formulated. It is, therefore, the Commission's opinion that the FOI Act does not prevent the applicant from communicating with the first selectman specifically about what items have been placed on the board of selectmen's agenda for a particular meeting or about the applicant's recommendations for future agenda items.
Furthermore, it is the Commission's opinion that the applicant alone, or the other selectman alone, may communicate with the first selectman, in his capacity as chief administrative officer, without complying with the open meetings requirements of the FOI Act. Thus, it is the Commission's view that a "meeting," as defined in §1‑18a(b), does not occur when such communication is strictly limited to inquiries of the first selectman in his capacity as chief administrative officer. This opinion is based upon the belief that the first selectman in his role as chief administrative officer is a separate public agency from the board of selectmen. Consequently, his communication of town procedures or policies to another selectman, and his answering of such selectman's requests for information about town government, is not a "meeting" of the board of selectmen, as "meeting" is defined for purposes of the FOI Act. In reality, it is an administrative meeting of a single‑member public agency that is specifically excluded from the open meetings requirements of that act by virtue of the terms of §1‑18a(b).
The Commission cautions that this opinion ought not to be construed to mean that a first selectman and any other member of a three‑member board of selectmen may meet or communicate concerning any matter of town business without complying with the provisions of the FOI Act. To the contrary, the Commission believes that the exceptions to the open meetings laws discussed above are extremely precise and apply only in the kinds of limited circumstances described in this opinion. The Commission will consider the use of such exceptions as a means by which a multi‑member public agency may bypass the open meetings provisions of the FOI Act as a violation of that act undertaken without reasonable grounds. Violators will therefore be subject to the imposition of civil penalties as set forth in Conn. Gen. Stat.§1‑21i(b).
By Order of the Freedom of
Information Commission
________________________
Judith A. Lahey, Chairman of
of the Freedom of Information
Commission
Date ___________________
Ordered_________________
Mary Jo
Jolicoeur
Clerk of the Commission