FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
|In the Matter of a Complaint by
|Dana Evans and Karen Emerick,
|Docket #FIC 2006-122
Ethics Commission, Town of
|January 24, 2007
The above-captioned matter was heard as a contested case on August 24, 2006, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint. For purposes of hearing, the above-captioned matter was consolidated with contested cases, docket #FIC 2006-123, Dana Evans and Karen Emerick v. Ethics Commission, Town of Glastonbury, and docket #FIC 2006-124, Dana Evans and Karen Emerick v. Ethics Commission, Town of Glastonbury.
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 and filed on March 21, 2006, and supplemented by letter dated and filed on August 21, 2006, the complainants appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to comply with the Commission’s order in contested case docket # FIC 2005-004, Dana Evans and Karen Emerick v. Alexandrina Sergio, Alan R. Spier, Nancy Thomas, Patrick Treacy, William H. Paetzold, Reginal L. Babcock and John Sweeney, as members, Ethics Commission, Town of Glastonbury; and Ethics Commission, Town of Glastonbury (hereinafter "FIC 2005-004"). The complainants requested, among several remedies, that this Commission impose a civil penalty upon the members of the respondent who attended the December 13, 2004 improper closed session that was the subject of the complaint in FIC 2005-004.
3. The respondent first contends that the Commission lacks jurisdiction to entertain this complaint because such complaint was filed "outside the applicable statute of limitations".
4. In support of its contention, the respondent cites to §1-206(b)(1), G.S., which requires, in relevant part, that a complaint be filed within thirty days after a denial of one's FOI right.
5. The respondent contends that the Commission's order in FIC 2005-004, required that "within 90 days of the issuing of the notice of final decision in ...[FIC 2005-004] [the respondent] cause minutes to be filed of the December 13, 2004 closed session. In preparing such minutes, the respondent commission shall ensure that the minutes ... disclose what transpired in the closed session to the same degree as would have been revealed by conducting the session in public".
6. The respondent contends further that in response to such order, it filed minutes of the December 13, 2004 closed session on November 21, 2005 and later re-filed them on January 13, 2006.
7. The respondent suggests that "January 13, 2006 properly marks the date on which the applicable statute of limitations began to run" and therefore, the complaint is untimely because it was filed on March 21, 2006, well beyond thirty days from January 13, 2006. (Respondent's Motion To Executive Director Not To Schedule Hearings, dated May 5, 2006).
8. The respondent therefore suggests that January 13, 2006 is the date on which the complainants could have first filed this complaint.
9. The Commission disagrees. The Commission's order required compliance within 90 days of the issuing of the notice of final decision in FIC 2005-004. The notice of the final decision was issued on December 21, 2005. The respondent therefore had until March 21, 2006 to comply with such order. Although the respondent in response to such order, chose to file minutes on January 13, 2006, the respondent could have conceivably, filed minutes as late as March 21, 2006, and still be within the permissible timeframe ordered by the Commission. However, had the complainants brought this complaint any sooner than March 21, 2006, the respondent would have a plausible argument that such complaint was prematurely brought because the 90 days had not yet tolled.
10. In addition, §1-206(b)(2), G.S., provides in relevant part that:
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. [Emphasis added].
11. Because §1-206(b)(2), G.S., allows the Commission to essentially fashion relief appropriate to rectify a denial of any FOI right, it is concluded that the Commission was well within its authority to permit the respondent 90 days within which to comply with the order in FIC 2005-004.
12. It is therefore concluded that the Commission has jurisdiction to address the merits of this complaint.
13. The remaining issue to be addressed in this complaint is whether the respondent complied with the Commission's order by filing minutes that "disclose what transpired in the closed session to the same degree as would have been revealed by conducting the session in public".
14. The Commission takes administrative notice of its record and Final Decision in FIC 2005-004.
15. In FIC 2005-004 the Commission found that the respondent commission held a meeting on December 13, 2004, during which it convened in a closed session.
16. The Commission also found that during the closed session, the chairperson of the respondent presented a request for an advisory opinion to the members of the respondent, and that such members reached a consensus that the respondent commission had jurisdiction to address such request.
17. The Commission further found that the respondent commission did not discuss the substance of the request for advisory opinion during the closed session.
18. The Commission concluded that the respondent violated the FOI Act because the presentation of the request for advisory opinion, the discussion regarding jurisdiction, and the consensus reached that the respondent commission had jurisdiction to entertain the request for advisory opinion, were not topics that should have been addressed in a closed session because such topics did not pertain to the investigation of a complaint or an allegation before the respondent commission, within the meaning of §§1-82a and 7-148h, G.S.
19. In seeking to remedy the denial of the public’s right to attend the improper December 13, 2004 closed session, the Commission issued the order described in paragraph 5, above.
20. As was noted in finding 6, above, the respondent filed minutes of the December 13, 2004 closed session on November 21, 2005 and later re-filed them on January 13, 2006.
21. It is found that the minutes of the December 13, 2004 closed session lack any detail or specifics regarding the discussion that took place, and do not comply with the Commission’s order in FIC 2005-004.
22. It is therefore concluded that the minutes do not disclose what transpired to the same degree as would have been revealed by conducting the December 13, 2004 closed session in public.
23. The respondent contends that it is difficult to go back and recreate minutes "to the same degree" as if the discussion had been conducted in public.
24. While the Commission notes the validity of the respondent's position to a certain extent, the respondent provided no evidence of the steps taken by its members to attempt to recreate the minutes.
25. It is therefore concluded that the respondent failed to comply with the Commission’s order in FIC 2005-004.
26. With respect to the request for a civil penalty, the Commission does not believe that imposing a civil penalty in this case will lead to compliance with the Commission's order in FIC 2005-004.
27. However, the Commission also remains concerned that evidence of what transpires in the respondent’s future executive sessions, or any private meetings conducted pursuant to §§1-82a and 7-148h, G.S., might be similarly lost with the passage of time. Such losses not only impair the public’s right to know, should such cases subsequently be determined to be improper, but also impair the Commission’s ability to decide cases concerning those sessions.
28. The Commission does not believe that it would be fruitful to continue to order the respondent to comply with its order in FIC 2005-004, given the passage of time, and the turnover in the respondent’s membership.
29. However, the Commission also believes that some meaningful relief is necessary.
30. It is concluded that the relief appropriate to rectify the denial of the public’s right to attend the December 13, 2004 improper closed session, and to rectify the denial of the public’s right to have the respondent comply with an order of the Commission to create minutes of executive sessions or other closed meetings of the respondent, is for the respondent, in the future, to make and maintain an audio recording of each of its executive sessions, or any other closed meeting. In the event that a complaint is filed alleging a violation by the respondent of the open meetings provisions of the FOI Act, such recordings shall be made available to the Commission for in camera inspection. Additionally, in the event that the Commission shall order the respondent to create minutes of an executive session or other closed meeting of the respondent, such recordings may be used to compare such minutes with what actually transpired at the respondent’s meeting.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Beginning 90 days following the issuance of the notice of final decision in this matter, and continuing for a period of three years thereafter, the respondent shall make and maintain an electronic audio recording of each of its executive sessions, or any other meeting of the respondent that is closed to the public. All such audio recordings shall be preserved for the entire three-year period, or for the period prescribed by the Public Records Administrator in accordance with §11-8a, G.S., whichever is greater. The respondent may withhold from public disclosure each such audio recording unless it is found by the Commission that the session so recorded was held in violation of §1-225, G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 24, 2007.
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:
Dana Evans and Karen Emerick
175 Coldbrook Road
South Glastonbury, CT 06073
Ethics Commission, Town of
c/o Henry J. Zaccardi, Esq.
Shipman & Goodwin
One Constitution Plaza
Hartford, CT 06103-1919
Petrea A. Jones
Acting Clerk of the Commission