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Final Decision FIC2015-147
In the Matter of a Complaint by
FINAL DECISION UPON RECONSIDERATION
Marissa Lowthert,
     Complainant
     against
Docket #FIC 2015-147
Bruce Likly, Chairman, Board of
Education, Wilton Public Schools;
Christine Finkelstein as Member,
Board of Education, Wilton Public
Schools; Chris Stroup, as Member,
Board of Education, Wilton Public
Schools; Laura Schwemm, as
member, Board of Education,
Wilton Public Schools; Glen Hemmerle,
as member, Board of Education,
Wilton Public Schools; Lory Rothstein,
as member, Board of Education,
Wilton Public Schools; and Wilton
Public Schools,
     Respondents
January 13, 2016

     The above-captioned matter was heard as a contested case on September 29, 2015, 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 February 23, 2015 and filed on February 24, 2015, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by “failing to conduct BOE business in public with prior public notice, recording of votes and publication of minutes.”
     3. By motion dated and filed on June 23, 2015, the respondents moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that the complaint was not timely filed.
     4. In this regard, §1-206(b)(1), G.S., provides, in relevant part:
Any person…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.  [Emphasis added].
     5. It is found that on December 3, 2014, the complainant became aware of a Common Interest Agreement dated January 10, 2014 (hereinafter the “Agreement”) between the respondent board, the superintendent of schools for the town of Wilton and the town of Wilton.
     6. At the hearing on this matter, the complainant contended that the agreement needed to be approved by the respondent board and that the superintendent of schools needed authorization from the respondent board in order to enter into the agreement on behalf of the respondents.  The complainant contended that such approval would have been given in the form of a vote that should have, pursuant to §1-225, G.S., of the FOI Act, occurred during a properly noticed public meeting.
     7. However, the respondents contended that because the complainant was aware of the Agreement since December 3, 2014, she had thirty days from that date to file a complaint alleging that the board met in secret to authorize the superintendent to enter into the Agreement.1

1
The respondents contended that, in the alternative, the complaint should be dismissed because the respondents never discussed the Agreement as a board but rather the superintendent acted in his capacity as CFO of the school district by which he has the authority to enter into such agreements without board approval.
     8. Despite learning of the agreement on December 3, 2014, it is found that the complainant did not inquire about a meeting to discuss or approve the Agreement until February 18, 2015, when she was informed that there was no record of an agenda, minutes, or votes taken at any meeting during which the board discussed and approved the Agreement.
     9. It is found that the complainant filed her February 23, 2015 appeal to this Commission within thirty days after she determined that the meeting during which the agreement was discussed and approved must have occurred in secret.
     10.  This Commission has concluded that the standard for subject matter jurisdiction in the case of an alleged secret or unnoticed meeting is thirty days after the person filing the appeal receives notice in fact that such meeting may have been held, and not thirty days after such person receives actual notice.  See Daniel Savage, Jr., v. Board of Selectmen, Town of Hebron, Docket #FIC 2003-388 (May 12, 2004) (fact that complainant had actual notice of alleged violation after newspaper account published October 25, 2003 did not save complaint filed October 29, 2003 from jurisdictional defect because complainant had notice in fact of alleged secret meeting on September 12, 2003, the date the legal notice which was alleged discussed at the “secret” meeting first appeared in the newspaper); Tarzia v. Pavia, Mayor, City of Stamford, et al., Docket #FIC 2012-481 (August 14, 2013) (the complainant had notice in fact of the alleged illegal meeting as of the date by which he could have known and made reasonable inquiry of such meeting).
     11.  It is found that the complainant could have known and made reasonable inquiry of the alleged secret or unnoticed meeting as early as December 3, 2014.
     12.  Therefore, it is found that the complainant had notice in fact of the alleged secret or unnoticed meeting on December 3, 2014 and was required to file her complaint with this Commission within thirty days of that date.
     13.  It is found that the complainant failed to file her complaint within thirty days after she received notice in fact of the alleged secret meeting.
     14.  Accordingly, it is concluded that the Commission lacks jurisdiction to adjudicate this case.
     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 January 13, 2016.

_______________________
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:
Marissa Lowthert
c/o Joseph S. Hubicki, Esq.
8 Wright Street, 2nd Floor
Westport, CT  06880
Bruce Likly, Chairman, Board of Education, Wilton Public Schools;
Christine Finkelstein as Member, Board of Education, Wilton Public
Schools; Chris Stroup, as Member, Board of Education, Wilton Public
Schools; Laura Schwemm, as member, Board of Education, Wilton
Public Schools; Glen Hemmerle, as member, Board of Education,
Wilton Public Schools; Lory Rothstein, as member, Board of
Education, Wilton Public Schools; and Wilton Public Schools
c/o Jessica Richman Smith, Esq.
Shipman & Goodwin LLP
300 Atlantic Street
Stamford, CT  06901
and
Anne Littlefield, Esq.
Shipman & Goodwin LLP
1 Constitution Plaza
Hartford, CT  06103
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission

FIC/2015-147/FD/cac/1/13/2016