FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on July 12, 2011, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, the matter was consolidated with Docket #FIC 2011-110; George C. Schober v. David Palmer, Chairman, Board of Education, Somers Public Schools, et al., and Docket #FIC 2011-153; George C. Schober v. Maynard M. Suffrendini, Jr., Superintendent, Somers Public Schools, et al.

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

1.  The respondents are public agencies within the meaning of §1-200(1), G.S.

2.      By letter dated November 23, 2010 and filed on November 24, 2010, the complainants appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOI Act”) in connection with a special meeting scheduled for November 22, 2010, as follows:

a.       By posting a notice for a special meeting on its website in a location that was not the “usual and customary place,” but was instead posted on the district wide calendar, where no Board of Education (“BOE”) has ever been posted before; and

b.      By failing to give sufficient detail in an agenda so as to sufficiently describe the purpose of an executive session.

 

3.      In their complaint, the complainants seek the imposition of civil penalties against Board of Education (“BOE”) Chairman David Palmer and against BOE Vice Chairwoman Joan Formeister.

4.      With regard to the location of the agenda for the November 22, 2010 special meeting, the complainants testified that they generally attend BOE meetings and the manner in which they become aware that such meetings are scheduled is to check the BOE’s online posting of agendas.  The complainants further testified that, because the BOE’s electronic postings are generally accurate, they have come to rely on them as a way of informing themselves about upcoming meetings.  However, the complainants testified that the agenda for the November 22, 2010 special meeting was not posted in its usual online location of the BOE website, but rather was posted on the district calendar. 

5.      Section 1-225(d), G.S., provides, in relevant part, as follows:

 

Notice of each special meeting of every public agency, except for the General Assembly, either house thereof or any committee thereof, shall be posted not less than twenty-four hours before the meeting to which such notice refers on the public agency’s Internet web site, if available, and 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, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state and in the office of the clerk of each municipal member for any multitown district or agency.  The secretary or clerk shall cause any notice received under this section to be posted in his office.  Such notice shall be given not less than twenty-four hours prior to the time of the special meeting; . . . .  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. . . .

6.      It is found that the November 22, 2010 special meeting was scheduled to begin at 6:30 PM.  It is found that, on November 17, 2010, the Superintendent’s administrative assistant, Ms. Selley, put together a memorandum indicating that a special meeting was to take place on November 22, 2010.  It is further found that a hardcopy of this memorandum was disseminated on November 17, 2010 to every campus building, and posted on all campus bulletin boards, as well as filed in the office of the town clerk. 

7.      With regard to the electronic posting, it is found that the respondents subscribe to an electronic service known as “Cabe E-meeting Service.”  It is found that the Cabe[1] software is a very user-friendly service when posting notices and agendas for regular BOE meetings, but becomes more difficult when attempting to post notices and agendas for special meetings or committee meetings.  It is found that Ms. Selley, who is the individual in charge of posting the meeting notices and agendas for the BOE, is in the process of working with the Cabe service to simplify its posting processes. 

8.      It is further found that, with regard to the November 17, 2010 special meeting notice, Ms. Selley was working with Cabe to ensure that this meeting notice was properly posted on the BOE’s website in its regular location.  It is further found that, on Friday November 17, 2010, Ms. Selley called Cabe to see how she could get the notice and agenda for the November 22, 2010 special meeting posted in the BOE’s regular electronic location.  On Monday, November 22, 2010, Ms. Selley was again in touch with Cabe with regard to the posting of the notice and agenda for this meeting.  It is found that Cabe was supposed to have resolved this posting issue for Ms. Selley.  However, it is found that on the evening of November 22, 2010 Ms. Selley was involved in a car accident and was unable to contact Cabe again with regard to this issue. 

9.      Nonetheless, it is found that, while the BOE was unable to get the notice and agenda posted on the BOE’s website in its regular location, an individual who is not in charge of the BOE’s electronic posting requirements did post the notice and the agenda for the November 22, 2010 special meeting on the electronic district calendar, which, it is further found, is a public calendar, linked to the BOE’s website. 

 

10.  It is further found that, while the complainants had not yet seen the notice and agenda for the November 22, 2010 special meeting online, they did receive a telephone call from a friend at 6:00 PM on the night the special meeting was to take place, and were orally informed that this meeting was to occur. 

 

11.  Based on the facts set forth above, it is concluded that the respondents technically, but excusably violated the FOI Act as alleged in paragraph 2.a, above.

12.  With regard to the allegations raised in paragraph 2.b above, concerning the adequacy of the agenda, it is found that, the BOE’s November 22, 2010 agenda includes the following action item: “A special meeting will precede the regular meeting with anticipation of executive session to discuss legal matters.”[2] 

13.  The complainants contend that the respondents’ language with regard to the executive session was insufficient to inform the public what the respondents planned to discuss in their executive session. 

 

14.  Section 1-200(6)(B), G.S., permits a public agency to discuss in executive session “strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, . . .  is a party until such litigation or claim has been finally or otherwise settled.” 

15.  Section 1-200(8), G.S., defines “pending claim” as “a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum is such relief or right is not granted.”

16.  Section 1-200(9), G.S., defines “pending litigation” as follows:

 

 (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency;  (B)  the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right;  or (C)  the agency's consideration of action to enforce or implement legal relief or a legal right.

17.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC, et al., Superior Court, Docket No. 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

18.  Based on the findings above, it is further found that the BOE’s agenda was insufficient to apprise the public which specific legal matter or matters the Board intended to discuss in the executive session scheduled for November 22, 2010.

 

19.  It is therefore concluded that the respondents violated the FOI Act by failing to describe sufficiently on their agenda the legal matter or matters they planned to discuss during the executive session portion of the November 22, 2010 special meeting. 

20.  Based on the record in this case, the Commission declines to impose civil penalties. 

 

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

 

1.  Henceforth, the respondents shall strictly comply with the requirements of §1-225(d), G.S., by fairly and sufficiently detailing on their meeting agendas the business they plan to address at their meetings.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 14, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Richard Stone and Debra Stone

c/o George C. Schober, Esq.

George C. Schober, P.C.

Attorney At Law

352 Billings Road

P.O. Box 597

Somers, CT  06071

 

David Palmer, Chairman, Board of Education, Somers Public Schools;

Joan Formeister, Vice Chairman, Board of Education, Somers Public Schools;

and Board of Education, Somers Public Schools

c/o William R. Connon, Esq.

Sullivan, Schoen, Campane & Connon, LLC

646 Prospect Avenue

Hartford, CT  06105

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-741/FD/cac/9/14/2011