FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Vesna Jaksic and Greenwich Time,  
  Complainants  
  against   Docket #FIC 2004-054

Nathaniel Witherell Board of Directors,

Town of Greenwich,

 
  Respondent  January 12, 2005
       

 

The above-captioned matter was heard as a contested case on July 21, 2004, at which time the complainants and the respondent 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 respondent is a public agency within the meaning of 1-200(1), G.S.

 

2.  By letter of complaint, dated January 30, 2004 and filed on February 2, 2004, the complainants appealed to the Commission, alleging that the respondent violated the Freedom of Information Act by:

 

a.       failing to provide notice of a January 6, 2004, special meeting of the respondent, as required by 1-225(d), G.S.,

 

b.      asking the name of the individuals seeking to attend the January 6, 2004, special meeting, in violation of 1-225(e); and

 

c.       denying the public access to the respondent’s special meeting of January 6, 2004.

3.  It is found that the respondent is a skilled nursing home facility owned by the town of Greenwich and managed by a Board of Directors which at all relevant times had nine members.

4.  It is found that on or about December 22, 2003, Ed Kavounas, Chairman of the respondent, sent a letter to family members of residents of the respondent Nathaniel Witherell (hereinafter “facility”) inviting them to attend a dinner, (hereinafter “assembly”) to be hosted by himself and three other board members on January 2, 2004.”

5.  It is found that the letter described in paragraph 4, above, states in pertinent part:

We and The Nathaniel Witherell staff would like to hear directly from you regarding your concerns and proposed solutions to any problems.

In order to enhance our communication, I would like to invite family members to a dinner on January 6th at 6:30 p.m. in the auditorium.  Four board members – Dr. Fred Siefert, Mrs. Margot O’Mara, Mr. Brad Markowitz and I – will host the dinner.  We will be joined by five staff members – Beth Cerbone, Director of Social Services, Lynn Bausch, Director of Nursing, Susan Welsh, Director of Admissions, Susan Levine, Director of Rehabilitation and Curt Milton, Executive Director.  We have also asked Beth to set up a “question” box, which will be kept at the front desk if any of you wish to write out questions.  These questions may be anonymous if you prefer.  We will address all of your questions at the dinner.

The purpose of our meeting is to talk about all of your concerns.  We will conduct part of the meeting with only the Board members and family members present in order to allow us as free an exchange as possible.

6.  It is found that the respondent paid for the dinner described in paragraphs 4 and 5, above.  It is also found that there is no evidence in the record to suggest that the respondent board delegated the four board members described in paragraph 5, above, to conduct the assembly, or to take any action as a result of the assembly.  It is further found that the respondent board did not take any action as a result of the assembly.

7.  It is found that when complainant Jaksic arrived at the location of the assembly, an employee of the respondent facility asked her to identify herself.  Upon identifying herself as a reporter, respondent member Susan Jackson advised complainant Jaksic that she would not be permitted to attend the assembly.

 

8The complainants, on the one hand contend that the assembly described in paragraphs 4 and 5, above, should have been publicly noticed and open to the public.  They contend that although they were aware of the meeting, they did not have an opportunity to attend.  The respondent on the other hand, contends that the assembly on January 6, 2004, does not constitute a “meeting”, within the meaning of 1-200(2), G.S., as the assembly lacked a quorum.  Accordingly, the respondent contends that no notice was required by 1-225(d), G.S., as alleged in the complaint.

 

9.  Section 1-225(a), G.S., in relevant part, provides, that: “[t]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public.”

 

10.  Section 1-200(2), G.S., provides that: “ ‘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 … to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”

 

11.  Section 1-225(d), G.S., provides in relevant part that:

 

[n]otice of each special meeting of every public agency…shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of the Secretary of the State for any such public agency of the state…The notice shall specify the time and place of the special meeting and the business to be transacted.  No other business shall be considered at such meetings by such public agency…. 

 

12.  Section 1-225(e), G.S., provides in relevant part that:

 

No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance.

 

13.  It is found that the respondent consists of nine members.  It is further found that four members of the respondent facility attended the assembly, that such number does not constitute a quorum of the respondent, and that no votes were taken at such time, although such members engaged in a discussion concerning substantive issues over which the respondent, has “supervisory and advisory power” within the meaning of 1-200(2), G.S.

 

14.  It is concluded that, in determining whether a gathering of less than a quorum of members of a public agency constitutes a “meeting” pursuant to 1-200(2), G.S., the most relevant precedents are two decisions of the Appellate Court, Emergency Medical Services Commission of the Town of East Hartford v. FOIC, 19 Conn. App. 352 (1989) and the Town of Windham v. FOIC, 48 Conn. App. 529 (1998).

 

15.  It is also concluded that Emergency Medical Services construes 1-200(a), G.S., to include in the definition of “meeting” a hearing or proceeding in which a quorum of the agency is not present, while Town of Windham concludes that without a quorum there can be no meeting.  The Supreme Court declined to clarify the conflict between these two Appellate Court decisions [Town of Windham v. FOIC, 249 Conn. 291 (1999)].  Accordingly, pending resolution of this conflict by the Supreme Court, the Commission continues to believe that Emergency Medical Services provides the more persuasive construction of 1-200(2), G.S.

 

16.  It is concluded that based upon the findings at paragraphs 4 through 6, above, the assembly did not constitute a “… proceeding” and therefore not a “meeting” of the respondent within the meaning of 1-200(a), G.S.  It is further concluded that the respondent did not violate 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 January 12, 2005.

 

________________________________

Petrea A. Jones

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:

 

Vesna Jaksic and Greenwich Time

c/o Stephanie S. Abrutyn, Esq.

Tribune Company Law Department

220 East 42nd Street, Suite 400

New York, NY 10017

 

Nathaniel Witherell Board of Directors,

Town of Greenwich

c/o Haden P. Gerrish, Esq.

Assistant Town Attorney

101 Field Point Road

Greenwich, CT 06830

 

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-054FD/paj/1/19/2005