FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Jeffrey S. Croce
Complainants
against Docket #FIC 1998-133
President, Board of Directors,
The Naugatuck Day Care, Inc.,
Respondents October 14, 1998

     The above-captioned matter was heard as a contested case on August 3, 1998, at
which time the complainant and the respondent appeared, stipulated to certain facts and
presented testimony, exhibits and argument on the complaint. After the hearing in this
matter, R.W. Palizay initiated an ex parte communication with the hearing officer. By
letter dated August 11, 1998 and filed August 13, 1998, Mr. Palizay moved to intervene
and reopen the hearing in this matter. The respondent filed an objection to such motion
on August 18, 1998. Mr. Palizay filed a response to such objection on August 20, 1998.
Mr. Palizay’s motion to intervene and reopen the hearing in this matter was denied on
August 20, 1998. On August 24, 1998, the respondent filed a motion for civil penalties
against Mr. Palizay, wherein the respondent requests that the Commission disallow any
further communication from Mr. Palizay. The respondent’s motion for civil penalties is
hereby denied. Any proffer of evidence by Mr. Palizay is not in the record in this matter
and, accordingly, shall not be considered by the Commission.

     After consideration of the entire record, the following facts are found and
conclusions of law are reached:

     1. By letter dated April 22, 1998, and filed April 23, 1998, the complainant
appealed to the Commission alleging that the respondent violated the Freedom of
Information (hereinafter “FOI”) Act by :

a) operating the board of directors (hereinafter “the board”) of the
Naugatuck Day Care, Inc. (hereinafter “day care”) under bylaws that
were illegally voted into existence;
b) convening a meeting of the board on April 15, 1998, (hereinafter “the
meeting”) without providing written notice to board members or
publicly posting a notice of said meeting;
c) excluding members of the public from the meeting;
d) ignoring a bylaw mandate to file minutes of board meetings with the
Naugatuck Borough Clerk;
e) classifying memoranda as “personal and confidential;”
f) conducting an unnoticed an unposted meeting of the board on April
22, 1998.

     2. It is concluded that the allegations contained in paragraph 1.a and 1.d, above,
do not constitute violations of the FOI Act. Accordingly, such allegations shall not be
addressed herein.

     3. The respondent moved to dismiss the remaining allegations in the complaint
on the grounds that the Commission lacks subject matter jurisdiction. Specifically, the
respondent contends that the day care is not the functional equivalent of a public agency.

     4. Section 1-18a(1), G.S., in relevant part, defines a “public agency” to mean:

…any executive, administrative or legislative office of the
state or any political subdivision of the state and any state or
town agency, any department, institution, bureau, board,
commission, authority or official of the state or of any city,
town, borough, municipal corporation, school district,
regional district or other district or other political
subdivision of the state, including any committee of, or
created by, any such office, subdivision, agency,
department, institution, bureau, board, commission,
authority or official, and also includes any judicial office,
official or body or committee thereof but only in respect to
its or their administrative functions.

     5. The test for determining whether an entity is a public agency within the
meaning of 1-18a(1), G.S., is one of functional equivalence, as outlined by the Supreme
Court in Board of Trustees of Woodstock Academy v. FOI Commission, 181 Conn. 544,
554 (1980), and consists of the following four criteria: (1) whether the entity performs a
governmental function; (2) the level of government funding; (3) the extent of government
involvement or regulation; and (4) whether the entity was created by government.

     6. Based upon Connecticut Humane Society v. FOI Commission, 218 Conn. 757,
761 (1991), all four factors in Woodstock, above, are not necessary for a finding of
functional equivalence, but rather “all relevant factors are to be considered cumulatively,
with no single factor being essential or conclusive.”

     7. With respect to the first criterion of the functional equivalence test
(governmental function), it is found that the board is the governing body of the day care,
the purpose of which is to provide care for pre-school children. While the day care
employs teachers and teachers’ aides, it is found that the care provided is primarily
custodial, rather than educational, in nature. Such care is not a traditional function of
government.

     8. With respect to the second criterion of the functional equivalence test (level of
government funding), it is found that the day care receives minimal funds from the
borough of Naugatuck and the majority of its income from the Connecticut Department
of Social Services (hereinafter “DSS”). Pursuant to a contract between DSS and the
borough of Naugatuck (hereinafter “borough”), the day care, as the subcontractor,
receives funds from DSS in exchange for providing services. Since the DSS funds are
consideration for services rendered, the government funding prong of the functional
equivalence test is not met. Domestic Violence Services of Greater New Haven, Inc. v.
Freedom of Information Commission
, 47 Conn. App. 466, 475-76 (1998).

     9. With respect to the third criterion of the functional equivalence test (extent of
government involvement or regulation), it is found that the day care is subject to the same
government regulation imposed upon any day care licensed within Connecticut.
Additionally, however, it is found that the day care uses borough payroll services, that
day care personnel participate in the borough pension plan, and that the day care
reimburses the borough for health and life insurance benefits initially paid out by the
borough. Accordingly, it is found that there is significant government involvement in the
administrative operations of the day care and, thus, the third prong of the functional
equivalence test is met.

     10. With respect to the fourth criterion of the functional equivalence test (whether
the entity was created by government), it is found that the day care was created as a non-
profit corporation in 1970. It is also found that initial members of the board were
appointed by the borough mayor and approved by the burgesses, and that such practice
continued until a 1996 revision of board bylaws.

     11. Based on the foregoing, it is concluded that the day care is not the functional
equivalent of a public agency within the meaning of 1-18a(1), G.S.

     12. Consequently, it is concluded that the board and the respondent are not bound
by the provisions of the FOI Act, as alleged in the complaint.

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

     1. The complaint is hereby dismissed.

     Approved by Order of the Freedom of Information Commission at its regular meeting of
October 14, 1998.

_________________________
Melanie R. Balfour
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:

Jeffrey S. Croce
c/o Atty. Carlos A. Santos
Fitzpatrick & Mariano
203 Church Street
Naugatuck, CT 06770

President, Board of Directors,
The Naugatuck Day Care, Inc.
c/o Atty. William J. Ward
102 Water Street P.O. Box 222
Naugatuck, CT 06770

__________________________
Melanie R. Balfour
Acting Clerk of the Commission


FIC1998-133FD/mrb10151998