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 Final Decision FIC2013-376
In the Matter of a Complaint by
FINAL DECISION
John Bromer,
     Complainant
     against
Docket #FIC 2013-376
Thomas Herrmann, Scott Centrella, and
Robert Lessler, as Members, Board of
Selectmen, Town of Easton; and
Board of Selectmen, Town of Easton,
     Respondents
February 26, 2014

     The above-captioned matter was heard as a contested case on December 13, 2013, at which time the complainant and the respondents appeared, stipulated to certain facts, 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 respondents are public agencies, within the meaning of §1-200(1), G.S.
     2.  By email, dated and filed June 26, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (FOI) Act when they “convened and participated in an illegal meeting. . .sometime between May 28, 2013 and June 11, 2013, in order to compose, sign, and agree to send as selectmen a[n] Op-Ed document for publication in the Easton Courier on June 13, 2013.”
     3.  Section 1-225(a), G.S., provides, in relevant part:
[t]he meetings of all public agencies…shall be open to the public.  The votes of each member of any such public agency…shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken. Not later than seven days after the date of the session to which such minutes refer, such minutes shall be available for public inspection and posted on such public agency’s Internet web site, if available, except that no public agency of a political subdivision of the state shall be required to post such minutes on an Internet website.  Each public agency shall make, keep and maintain a record of the proceedings of its meetings.
     4.  Section 1-200(2), G.S., defines “meeting,” in relevant part, as:
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.
     5.  It is found that, on June 13, 2013, a local newspaper published an Op-Ed piece entitled “Selectmen respond to CRG mailing” (letter), and listed as its authors “Tom Herrmann, Scott Centrella and Bob Lessler, Board of Selectmen.”  It is found that the letter is a response to a flyer distributed town-wide by a political action committee, and that the flyer commented negatively on certain actions of the town, the first selectman, and the Board of Selectmen, with regard to certain town projects and initiatives (flyer).
     6.  It is found that the respondent Tom Herrmann, who is no longer the first selectman, decided on his own to write the letter and send it to the newspaper.  It is found that no public meeting or private gathering of the respondents was held to discuss whether or how to respond to the flyer.  Mr. Herrmann testified that although he originally intended to sign only his own name to the letter, he later decided that the letter would be stronger if the other selectmen signed it as well.  Accordingly, he testified, and it is found, that prior to sending the letter to the newspaper, he sent it, via email, to each of the other selectman with the comment, “[t]ake a look.”
     7.  It is further found that the email, described in paragraph 6, above, was not a “group email” from Mr. Herrmann to both of the other selectmen.  Rather, it is found that Mr. Herrmann emailed the letter to Mr. Centrella and Mr. Lessler separately.  It is found that Mr. Centrella’s response, via email, was “looks good,” or words to that effect.  It is found that Mr. Lessler responded to Mr. Herrmann with more substantive comments, but that he did not “cc” his response to Mr. Centrella.  It is found that Mr. Herrmann did not respond via email to either of the other selectman’s comments.
     8.  In Mal Leichter v. Board of Finance, Town of Hebron, Docket #FIC 2001-263 (April 24, 2002), members of the respondent Board of Finance discussed, in emails and in telephone conversations outside of the public’s view, a proposed letter to the editor from the Board suggesting that the town’s required contribution to the budget of Regional School District #8 be reduced, because it would be for the “good of the town,” in view of the fact that such contribution factors into the town’s final mill rate.  The Commission found that the emails and phone conversations were “communications” within the meaning of §1-200(2), G.S., and concluded therefore that the respondent Board violated the FOI Act.
     9.  Implicit in the Commission’s finding that the emails and phone conversations in Leichter were “communications,” within the meaning of §1-200(2), G.S., is the further finding that those communications pertained to “matters over which the public agency has supervision, control, jurisdiction, or advisory power.”
     10. Unlike the communications at issue in Leichter, it is found that the emails at issue in the present case relate to political action taken by the respondents, as they sought to refute statements made by political adversaries.  As such, it is found that such emails do not constitute communications regarding a matter over which the respondents had supervision, control, jurisdiction or advisory power.
     11. Accordingly, it is concluded, based upon the facts and circumstances of this case, that the emails described in paragraphs 6 and 7 above, did not constitute “communications” within the meaning of §1-200(2), G.S., and that therefore, the respondents did not violate the open meeting requirements of §1-225(a), G.S.
     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 February 26, 2014.
__________________________
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:
John Bromer
325 Silver Hill Road
Easton, CT  06612
Thomas Herrmann, Scott Centrella, and Robert Lessler,
as Members, Board of Selectmen, Town of Easton; and
Board of Selectmen, Town of Easton,
c/o Mark J. Kovack, Esq.
Berchem, Moses & Devlin, PC
1221 Post Road East
Suite 301
Westport, CT  06880

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2013-376/FD/cac/2/26/2014