FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Daniel E. Lilly,  
  Complainants  
  against   Docket #FIC 2006-652
Metropolitan District Commission,  
  Respondents  June 13, 2007
       

 

            The above-captioned matter was heard as a contested case on March 30, 2007, at which time the complainant 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)(A), G.S.

 

2.  By letter dated December 5, 2006 and filed with the Freedom of Information Commission (“Commission”) on December 8, 2006, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOIA”) by conducting “an [i]llegal [m]eeting”, without notice to the public, with attendance closed to the public, and without minutes. The complainant further alleged that eight enumerated individuals, including commissioners of the respondent from both parties, attended the illegal meeting in the Chairman’s office at the respondent’s headquarters on November 8, 2006.

 

3.  Section 1-200, G.S., states in relevant parts:

 

(1)  “Public agency” or “agency” means: (A) 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…. (emphasis added)

 

(2) “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, 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.… (emphasis added)

 

 (3)  “Caucus” means (A) a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision…

 

4.  It is found that the respondent has committees specifically provided for in its charter, the Compiled Charter of The Metropolitan District (the “Charter”), as well as standing and special committees created by the Board of Commissioners (the “District Board”), which governs the respondent. On January 9, 2006, the District Board constituted a Strategic Planning Committee (the “Committee”) as a special committee, initially with nine members. On March 6, 2006, the District Board increased the membership of the Committee to thirteen, which number of members it continued to have on November 8, 2006. 

 

5.  It is also found that the District Board has twenty-nine electors (also known as commissioners). Pursuant to the Charter, a quorum of the District Board is a majority, or fifteen, of the members. It is further found that the quorum of each specific committee is determined either by the Charter, or in the absence of such determination, by the By-Laws of the District Board of the respondent (the “By-Laws”). The By-Laws state that with respect to standing committees: “[t]he quorum of each standing committee shall be established by the respective committee.” For example, the Charter establishes that five members of the Board of Finance, which has eight members in all, shall constitute a quorum.   

 

6.  It is also found that, during the four noticed meetings of the Committee prior to November 8, 2006, the Committee did not take any action to determine the definition of a quorum for its meetings. It is further found that, in the absence of guidance based upon the Charter and the By-Laws, the respondent has relied upon Robert’s Rules of Order. Robert’s Rules of Order state that, unless a different quorum is fixed by the by-laws or by action of the parent body, “the quorum is a majority of the members of the board or committee”.

 

7.  It is also found that the agendas for the Committee for special meetings that occurred on March 21, 2006, October 23, 2006 and March 8, 2007, all included notations indicating that a quorum of the Committee was five members. However, based on the findings at paragraphs 4 and 6, above, it is also found that these notations were the result of ministerial error that failed to account for the increase in the membership of the Committee from nine to thirteen members. 

 

8.  It is also found that the Committee did not file any notice or minutes for any meeting held on November 8, 2006.     

 

9.  It is further found that at around 4 p.m. on November 8, 2006 there was a gathering of five members of the Committee (William A. DiBella, Dale A. Ryan, Pasquale J. Salemi, Martin B. Courneen, and Alvin E. Taylor), plus another commissioner of the respondent, Allen Hoffman, who was not a member of the Committee (the “gathering”). Mr. Hoffman was asked to attend by a clerk of the respondent in place of another member of the Strategic Planning Committee (Kevin M. Deneen) who could not attend the meeting. In addition, the chief executive officer of the respondent (Charles P. Sheehan) and a counsel for the respondent (R. Bartley Halloran) were in attendance at the gathering. The six commissioners in attendance included members enrolled in more than a single political party: William DiBella, Allen Hoffman, Pasquale Salemi, and Alvin Taylor are enrolled in the Democratic Party, while Dale Ryan and Martin Courneen are enrolled in the Republican Party. The gathering took place in the office of the Chairman of the respondent, with the door closed. 

 

10.  It is also found that the 4 p.m. gathering on November 8, 2006 included the Chairman of the District Board, the Vice Chairman of the District Board, the chairman of the Bureau of Public Works committee, the chairman of the Water Bureau committee, and the chairman of the Personnel, Pension and Insurance committee.        

 

11.  It is found that Commissioner Hoffman referred to the gathering as a “Strategic Planning Committee” meeting when he excused himself from a Republican caucus that was being conducted concurrently; that the gathering lasted about one hour; and that the gathering preceded a meeting of the full membership of the District Board, which was noticed to convene at 5:30 p.m. on the same day, November 8, 2006. It is further found that at the gathering the six commissioners, the chief executive officer of the respondent, and the counsel to the respondent discussed matters over which the Committee had supervision, control, jurisdiction or advisory power.

 

12.  It is found that the clerk who called commissioner Hoffman to invite him to attend in place of commissioner Deneen stated to commissioner Hoffman that the gathering would be to discuss items on the agenda of the meeting of the District Board that was noticed to convene ninety minutes later, at 5:30 p.m. Moreover, a counsel for the respondent, R. Bartley Halloran, who attended the gathering, also attended an executive session at the meeting of the District Board that immediately followed in order to discuss “legal strategies.” It is therefore found that the gathering almost certainly included discussion of items on the agenda for the meeting of the District Board that convened at 5:30 p.m.     

 

13.  Finally, it is found that the meetings of the District Board were generally characterized by a “lack of probing, detailed discussions.” There was also testimony that there had been other unnoticed gatherings of some commissioners on at least two occasions in the previous year.

 

14.  Given these findings of fact, the question of law presented by this case is whether the gathering was a “meeting” of a public agency as defined in 1-200(2), G.S. Given the definition of “meeting’ set forth at paragraph 3, above, the more specific question of law is whether the gathering was a “proceeding” of a public agency as that term is used in 1-200(2), G.S. 

 

15.  Based on the findings of fact in paragraph 4, above, it is concluded that the Committee is a “committee” of the respondent, as that term is used in 1-200(1)(A), G.S. Therefore, the Committee, like the respondent, is a “public agency”.    

 

16.  Based on the findings of fact in paragraph 9, above, it is concluded that the gathering was not a “caucus”, as that term is defined at 1-200(3)(A), G.S.

 

            17.  Based upon the findings of fact in paragraphs 4, 5, 6, 7, and 9, above, it is also concluded that the gathering did not constitute a “quorum” of the Committee, as that term is utilized in 1-200(2), G.S. A majority of the membership of the Committee was seven members and only six members (including Commissioner Hoffman serving as an alternate) were in attendance.  

 

            18.  The Connecticut Supreme Court has stated, as an application of the general FOIA principle that exceptions to disclosure are narrowly construed, that: “the statutory definition of public meetings contained in 1-18a(b) [re-codified as 1-200(2), G.S.] must be read to limit rather than to expand the opportunities for public agencies to hold closed hearings.” Glastonbury Education Association v. Freedom of Information Commission, 234 Conn. 704, 713-714 (1995). It is also specifically concluded that it is not necessary to have a quorum in order to have a “proceeding”, and therefore a “meeting” pursuant to 1-200(2), G.S. As the Appellate Court stated in Emergency Medical Services Commission of the Town of East Hartford v. Freedom of Information Commission, 19 Conn. App. 352, 355 (1989):

 

The plain language of General Statutes 1-18a(b) [re-codified as 1-200(2), G.S.] does not require a quorum as a necessary precondition to “any hearing or other proceeding of a public agency….” The word ‘quorum” does not appear in the clause dealing with “any hearing or other proceeding of a public agency….” The legislature did not define a meeting as any hearing or proceeding of a quorum of a public agency, as it might have done.

 

But see Town of Windham v. Freedom of Information Commission, 48 Conn. App. 529, (1998), appeal dismissed, 249 Conn. 291 (1999), where the Supreme Court declined to clarify the conflict between these two Appellate Court decisions; See also Meriden Board of Education v. Freedom of Information Commission, 27 Conn. L. Rptr. 298 (2000); Common Council of the City of Middletown v. Freedom of Information Commission, 16 Conn. L. Rptr. 163 (1996); East Hartford Town Council v. Freedom of Information Commission, 16 Conn. L. Rptr. 121 (1996); Ansonia Library Board of Directors v. Freedom of Information Commission, 42 Conn. Sup. 84 (1991); Bristol v. Freedom of Information Commission, Docket No. 254667, Superior Court, Judicial District of Hartford‑New Britain at Hartford, Memorandum of Decision dated April 13, 1983 (Ripley, J.)  

          

19.   Based upon the findings of fact in paragraphs 6, 9, 10, 11, and 12, above, especially the fact that the gathering included a number of members only one less than a quorum, that the gathering included those in leadership positions of the respondent, that the gathering lasted for about one hour and took place immediately before a noticed meeting of the District Board, and that the gathering discussed matters over which the Committee had supervision, control, jurisdiction or advisory power, including almost certainly items on the agenda for the meeting of the District Board that immediately followed, it is concluded that the gathering was a “proceeding” and therefore a “meeting” of the Committee pursuant to 1-200(2), G.S.   

 

 20.  Because the gathering was a meeting of the Committee, it is finally concluded that all the FOIA requirements for meetings were applicable (notice, openness and minutes). Based upon the findings of fact in paragraphs 8 and 9, above, the November 8, 2006 meeting of the Committee therefore violated the requirements of 1-225, G.S., 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.  Henceforth, the respondent shall require the Committee and all of its other committees, when convening a meeting, to comply with all the requirements of 1-225, G.S.      

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 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:

 

Daniel E. Lilly

98 Babcock Street

Hartford, CT 06106

 

Metropolitan District Commission

c/o Brendan M. Fox, Jr., Esq.

Law Offices of Jay F. Malcynski, P.C.

One Liberty Square

New Britain, CT 06051

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

 

FIC/2006-652FD/paj/6/25/2007