TO: Freedom of Information Commission
FROM: Thomas A. Hennick
RE: Minutes of the Commission’s special meeting of January 28, 2011
A special meeting of the Freedom of Information Commission was held on January 28, 2011, in the Freedom of Information Hearing Room, 18-20 Trinity Street, Hartford, Connecticut. The meeting convened at 11:08 a.m. with the following Commissioners present:
Commissioner Norma E. Riess, presiding
Commissioner Sherman D. London
Commissioner Owen P. Eagan
Also present were staff members, Colleen M. Murphy, Eric V. Turner, Mary E. Schwind, Clifton A. Leonhardt, Victor R. Perpetua, Gregory F. Daniels, Tracie C. Brown, Lisa F. Siegel, Kathleen K. Ross, Valicia D. Harmon, Cindy Cannata and Thomas A. Hennick.
Those in attendance were informed that the Commission does not ordinarily record the remarks made at its meetings, but will do so on request.
The Commissioners unanimously voted to adopt the minutes of the Commission’s special meeting of January 13, 2010.
Docket #FIC 2010-104 Luis Fernandez v. Director, State of Connecticut, Department of Public Safety, Division of Scientific Services; and State of Connecticut, Department of Public Safety
Luis Fernandez participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-106 Robert Tagliaferi v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden
Robert Tagliaferi participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-107 Robert Tagliaferi v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden
Robert Tagliaferi participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Minutes, Special Meeting, January 28, 2011
Page 2
Docket #FIC 2010-108 Robert Tagliaferi v. Warden, State of Connecticut, Department of Correction, Garner Correctional Institution; and State of Connecticut, Department of Correction
Robert Tagliaferi participated via speakerphone. The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-062 Paul Garlasco v. First Selectman, Town of Bridgewater; and Town of Bridgewater
Paul Garlasco appeared on his own behalf. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-125 Paul J. Garlasco v. First Selectman, Town of Bridgewater; and Board of Selectmen, Town of Bridgewater
Paul Garlasco appeared on his own behalf. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-074 Alexander Wood and the Manchester Journal Inquirer v. Chairman, State of Connecticut, Citizens Ethics Advisory Board; and State of Connecticut, Citizens Ethics Advisory Board
Alexander Wood appeared behalf of the complainants. Attorney Barbara Housen appeared on behalf of the respondents. The Commissioners voted unanimously to grant intervenor status to Priscilla Dickman. Ms. Dickman appeared on her own behalf. The Commissioners unanimously voted to amend the Hearing Officer’s Report. The Commissioners unanimously voted to adopt the Hearing Officer’s Report as amended. * The proceedings were recorded digitally.
Docket #FIC 2010-153 Kenneth Krayeske v. Mayor, City of Hartford; and City of Hartford
Kenneth Krayeske appeared on his own behalf. Attorney Lori Mizerak appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Minutes, Special Meeting, January 28, 2011
Page 3
Docket #FIC 2010-156 Kenneth Krayeske v. Chief, Police Department, City of Hartford; Police Department, City of Hartford; and City of Hartford
Kenneth Krayeske appeared on his own behalf. Attorney Lori Mizerak appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-200 Kenneth James Krayeske v. Chief, Police Department, City of Hartford; Police Department, City of Hartford; and City of Hartford
Kenneth Krayeske appeared on his own behalf. Attorney Lori Mizerak appeared on behalf of the respondents. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-158 Harold Owen Chace v. Chief, Police Department, Town of Hamden; and Police Department, Town of Hamden
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-213 Peter Quercia v. Town Manager, Town of Windham; and Mayor, Town of Windham
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-253 Douglas Thielen v. First Selectman, Town of New Fairfield; and Town of New Fairfield
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
Docket #FIC 2010-267 Adam Osmond v. Commissioner, State of Connecticut, Division of Special Revenue; and State of Connecticut, Division of Special Revenue
Adam Osmond appeared on his own behalf. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Minutes, Special Meeting, January 28, 2011
Page 4
Docket #FIC 2010-268 Adam Osmond v. Executive Director, State of Connecticut, Division of Special Revenue; and State of Connecticut, Division of Special Revenue
Adam Osmond appeared on his own behalf. The Commissioners unanimously voted to adopt the Hearing Officer’s Report. The proceedings were recorded digitally.
Docket #FIC 2010-276 Joao Godoy v. John Salomone, Town Manager, Town of Newington; and Town of Newington
The Commissioners unanimously voted to adopt the Hearing Officer’s Report.
The Commissioners unanimously voted to approve a motion for stay dated January 18, 2011 filed by Rosemary M. McGovern in FIC #2010-026 The Greenwich Time v. Commissioner, State of Connecticut, Department of Public Health, until such time as the Superior Court rules on a motion to stay should the matter be appealed.
Victor R. Perpetua reported on the New Britain Superior Court Memorandum of Decision in Thomas Germain v. Town of Manchester, et al. dated January 6, 2011.
Clifton A. Leonhardt reported on the New Britain Superior Court Memorandum of Decision in Chief, Police Department, City of Hartford, et al. dated January 7, 2011.
The Commissioners took no action on the New Britain Superior Court Memorandum of Decision in State of Connecticut Office of the Attorney General v. Freedom of Information Commission dated January 18, 2011.
The Commissioners unanimously voted to approve a motion for stay filed January 24, 2011 in Docket #FIC 2010-043; Ronald Sydor v. Commissioner, Department of Public Health, until such time as the Superior Court rules on a motion to stay should the matter be appealed.
The meeting was adjourned at 4:04 p.m.
_________________
Thomas A. Hennick
*SEE ATTACHED FOR AMENDMENTS
MINSPEC meeting 01282011/tah/01312011
Minutes, Special Meeting, January 28, 2011
Page 5
AMENDMENTS
Docket #FIC 2010-074 Alexander Wood and the Manchester Journal Inquirer v. Chairman, State of Connecticut, Citizens Ethics Advisory Board; and State of Connecticut, Citizens Ethics Advisory Board
The Hearing Officer’s Report is amended as follows:
4. It is found that the ENFORCEMENT DIVISION OF THE Office of State Ethics investigated the complaint and brought the alleged ethics violations before a judge trial referee (“JTR”) assigned by the Chief Court Administrator for a probable cause hearing.
8. It is found that JTR Kennefick instructed the respondents at the January 12 hearing that their deliberations were, as a matter of law, part of the hearing. When they were ready to begin deliberating, he directed them as follows:
This will conclude the public portion of this hearing, and I’m going to ask you to retire to deliberate ….. But before you do that, let me just point just for the Board’s information, I’m going to point to you in the regulation [1-921-31g(k)] 1-92-31(g)(k). G states that the Board hearing shall commence upon the presentation of evidence to the Board for its consideration, which I think was back on September 11, if I got that date right. The Board hearing shall be concluded upon a finding of violation or a lack thereof, and if violation has occurred, the imposition of penalties as appropriate. So the hearing is not concluded until you make your finding and impose penalties, if appropriate. [Emphasis added].
9. JTR Kennefick’s language leaves some room for disagreement as to whether he believed that the Board’s deliberations were required to be conducted privately. On the one hand, he expressed that the “public portion’ of the hearing was concluded, and that the Board was to “retire” to deliberate. On the other hand, he was certainly aware of the requirement in §[1-82a(e)] 1-82(b), G.S., that “[a]ll hearings of the board held pursuant to this subsection shall be open,” and he instructed the Board that the hearing wasn’t over until they concluded their deliberations and made their findings.
Minutes, Special Meeting, January 28, 2011
Page 6
[37. Specifically, the Commission notes that the General Assembly took away the predecessor Ethic’s Commission’s ability to make its own probable cause determinations, to preside over its own hearings following a finding of probable cause, and to independently interpret the statutes governing violations of state ethics laws. The new statutes now require that a JTR make any findings concerning probable cause, that a JTR preside over any hearings following a finding of probable cause, and that a JTR have final authority over the interpretation of ethics statutes.]
37. SPECIFICALLY, THE COMMISSION NOTES THAT THE GENERAL ASSEMBLY TOOK AWAY THE PREDECESSOR ETHICS COMMISSION’S ABILITY TO MAKE ITS OWN PROBABLE CAUSE DETERMINATIONS AND ASSENTED, THROUGH ITS ACCEPTANCE OF § 1-92-6a OF THE REGULATIONS OF CONNECTICUT STATE AGENCIES, TO THE CITIZEN’S ETHICS ADVISORY BOARD’S SURRENDER OF THE AUTHORITY TO INTERPRET THE STATUTES GOVERNING VIOLATIONS OF STATE ETHICS LAWS AT HEARINGS ON ALLEGED VIOLATIONS OF THOSE LAWS. THE NEW SCHEME OF STATUTES AND REGULATIONS REQUIRES THAT A JTR MAKE ANY FINDINGS CONCERNING PROBABLE CAUSE AND THAT ANOTHER JTR HAVE THE FINAL AUTHORITY OVER THE INTERPRETATION OF ETHICS STATUTES IN HEARINGS ON ALLEGED VIOLATIONS. IT IS LIKEWISE NOTABLE THAT THE GENERAL ASSEMBLY DID NOT CHANGE THE PROVISION OF § 1-82 (b), G.S., MAKING A JTR THE PRESIDING OFFICER AT HEARINGS ON ALLEGED ETHICS CODE VIOLATIONS THAT FOLLOW A FINDING OF PROBABLE CAUSE AND GIVING THAT JTR AUTHORITY TO RULE ON ISSUES CONCERNING THE APPLICATION OF THE RULES OF EVIDENCE AT SUCH HEARINGS.
48. It is true that our Supreme Court in New Haven v. FOIC found no violation of the FOI Act when a public agency convened in executive session to discuss a police [chief’s] OFFICER’S termination following an evidentiary hearing that had been conducted publicly.
49. However, a careful reading of New Haven reveals that the Supreme Court’s decision in that case turned on the fact that the police [chief] OFFICER had not requested that the deliberation portion be open to the public, not that the New Haven Board of Police Commissioner’s deliberation was outside the requirement of obtaining the consent of the employee discussed.
Minutes, Special Meeting, January 28, 2011
Page 7
54. The Commission is cognizant of the practical difficulties involved in the complex interplay between the Code of Ethics and the Freedom of Information Act, particularly when new statutes imposing a judicial authority are involved, and finds no bad faith on the part of the respondents in this case, and therefore no reason to consider the imposition of a civil penalty. [Moreover, the complainants have not requested that the Commission declare the respondents’ deliberations null and void, and the] THE Commission does not believe that justice would be served by the consideration of such a remedy in this case, which involved a long, difficult and conscientious hearing into the Dickman matter. The Commission does not seek to impose unnecessary constraints upon the respondents, nor create any conflict with the Judge Trial Referees with whom the respondents are obligated to work. However, the Commission sees no conflict between the authority of the Judge Trial Referee during the evidentiary portion of the respondents’ hearings, and the requirements of the FOI Act after the Judge Trial Referee’s role as presiding officer is concluded. The Commission observes that the respondents’ own statute explicitly requires that its hearings be open after probable cause is found, that our Supreme Court has held that similar deliberations may not be conducted privately over the objection of the individual concerned, and that the respondents diminish their own role and responsibilities when they characterize themselves as a mere jury. This Commission has historically enjoyed a sister agency relationship with the respondents and their predecessors, and has the highest respect for the respondents’ duties and responsibilities as the state agency responsible for the enforcement of our code of ethics. The Commission prays that the respondents continue their commendable work, and accept this decision in the spirit in which it is rendered.