Final Decision FIC2013-781
In the Matter of a Complaint by
||Docket #FIC 2013-781|
William Witkowski, Chairman, Board of
Education, Thompson Public Schools; and
Board of Education, Thompson Public
September 24, 2014
The above-captioned matter was heard as a contested case on August 7, 2014, 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. It is found that the respondents are public agencies within the meaning of §1-200(1), G.S.
2. By email filed December 18, 2013, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by failing to make available to the public within 48 hours certain votes taken at their meeting of November 12, 2013, and by failing to record certain votes in the minutes of such meeting.
3. Section 1-225(a), G.S., provides in relevant part:
The votes of each member of any such public agency upon any issue before 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 1-206(b)(1), G.S., provides in relevant part:
Any person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed not later than thirty days after such denial, except in the case of an unnoticed or secret meeting, in which case the appeal shall be filed not later than thirty days after the person filing the appeal receives notice in fact that such meeting was held.
5. It is found that the record of votes of the November 12, 2013 meeting was filed in the town clerk’s office and made available to the public on November 13, 2013.
6. The complainant contends that he had 30 business days, not 30 calendar days, from November 13, 2013, to file his notice of appeal. He cites §§1-206(a) and 1-225(g), G.S., to support his claim.
7. Section §1-206(a), G.S., provides in relevant part:
Any denial of the right to inspect or copy records provided for under section 1-210 shall be made … within four business days of such request [.]
8. Section 1-225(g), G.S., provides in relevant part:
In determining the time within which or by when a notice, agenda, record of votes or minutes of a special meeting or an emergency special meeting are required to be filed under this section, Saturdays, Sundays, legal holidays and any day on which the office of the agency, the Secretary of the State or the clerk of the applicable political subdivision or the clerk of each municipal member of any multitown district or agency, as the case may be, is closed, shall be excluded.
9. The complainant claims that because §§1-206(a) and 1-225(g), G.S., use a business day count, it is reasonable to conclude that the “thirty days” limitation period in §1-206(b)(1), G.S., also refers to 30 business days.
10. It is concluded, however, that had the legislature intended to include only business days in the 30-day period within which an appeal must be filed, it would have expressly done so, as it did in §§1-206(a) and 1-225(g), G.S., and also in §1-230, G.S. (“If at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day.”)
11. Moreover, §1-21j-15 of Regs. Conn. State Agencies provides:
Computation of any period of time referred to in sections 1-21j-1 to 1-21j-57, inclusive, of the Regulations of Connecticut State Agencies begins by first counting the day after the day on which the precipitating event occurs, and ends on the last day of the period so computed. The last day of the period is to be included unless it is a day on which the principal office of the commission is closed, in which event the period shall run until the end of the next following business day. If the period of time, including the intervening Saturdays, Sundays and legal holidays, is five (5) days or less, such Saturdays, Sundays and legal holidays shall be excluded from the computation; otherwise such days shall be included in the computation.
12. It is concluded, therefore, that §1-206(b)(1), G.S., requires that an appeal be filed within 30 calendar days of the alleged violation.
13. It is found that thirty days from November 13, 2013, when the record of votes was filed in the town clerk’s office and made available to the public, was December 12, 2013.
14. It is found that the complainant failed to file his notice of appeal by December 12, 2013.
15. It is concluded, therefore, that the Commission is without jurisdiction to hear the allegations concerning the failure to record and make available to the public certain votes taken at the respondents’ meeting of November 12, 2013.
16. With respect to the complainant’s allegation that the respondents failed to record votes in the minutes of the November 12, 2013 meeting, it is found that such minutes were filed in the town clerk’s office on November 19, 2013.
17. It is found that the complainant filed his notice of appeal within thirty days of November 19, 2013.
18. It is concluded, therefore, that the Commission has jurisdiction to hear the complainant’s allegation that the respondents failed to record certain votes in the minutes of their meeting of November 12, 2013.
19. It is found that the votes that the respondents failed to record in their minutes were taken in response to a motion to enter executive session.
20. It is found that the respondents concede that they did not record such votes. It is concluded that the respondents violated §1-225(a), G.S., by failing to record such votes in the minutes of their meeting of November 12, 2013.
21. The complainant requested the imposition of civil penalties against the respondents. After consideration of the entire record in this case, however, the Commission declines to consider the imposition of 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 comply with the requirements of §1-225(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of September 24, 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:
P.O. Box 522
Thompson, CT 06277-0522
William Witkowski, Chairman, Board of Education,
Thompson Public Schools; and Board of Education,
Thompson Public Schools
c/o Anne H. Littlefield, Esq. and
Jessica Soufer, Esq.
Shipman & Goodwin LLP
One Constitution Plaza
Hartford, CT 06103
Cynthia A. Cannata
Acting Clerk of the Commission