Final Decision FIC2011-178
In the Matter of a Complaint by
||Docket #FIC 2011-178|
Saul Nesselroth, as Chairman,
Board of Ethics, Town of Mansfield;
and Board of Ethics, Town of Mansfield,
January 11, 2012
The above-captioned matter was heard as a contested case on August 16, 2011, 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 April 5, 2011 and filed April 6, 2011, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act in the following way: prior to formally calling the March 7, 2011 special meeting of the Mansfield Board of Ethics to order, Vice Chairman Nesselroth began a discussion with the board members who were present concerning an email that the board had received concerning “parliamentary procedures.” The complainant contends that this matter was not an issue on the special meeting’s agenda. In connection with this alleged violation, the complainant is seeking the imposition of civil penalties.
3. Prior to the contested case hearing, by letter dated August 4, 2011 and filed August 5, 2011, the respondents filed a motion pursuant to §1-206(b)(2), G.S., seeking “relief from the Commission regarding frivolous and repeated FOI appeal complaints being filed by Mr. Michael Sikoski.” Specifically, the respondents requested that, in lieu of a contested case hearing, the Commission schedule a hearing pursuant to §1-206(b)(2), G.S., to determine whether the complainant has taken this appeal “frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken.” In the moving papers, the respondents explained that Mr. Sikoski’s complaints against the respondent board and the Town of Mansfield generally began after he was removed as the chairman of the Board of Ethics. The respondents further explained that “Board of Ethics members and staff continue to believe that these complaints are at least in part retaliation for his replacement as chairperson.”
4. The respondents requested that, if after conducting a §1-206(b)(2), G.S., hearing, the Commission found that the complainant violated the provisions of §1-206(b)(2), G.S., it grant the respondents injunctive relief against the complainant, pursuant to §1-241, G.S. The complainant did not respond to the respondents’ motion.
5. The hearing officer granted the respondents’ request for a §1-206(b)(2), G.S., hearing. The hearing officer noted that, upon completion of the §1-206(b)(2), G.S. hearing, a determination would be made as to whether it was necessary to proceed to a contested case hearing on the merits of the complaint.
6. At the completion of the §1-206(b)(2), G.S., hearing, the hearing officer determined that a full contested case hearing should be conducted.
7. Section 1-206(b)(2), G.S., provides in relevant part:
. . . If the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken, after such person has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against that person a civil penalty of not less than twenty dollars nor more than one thousand dollars. The commission shall notify a person of a penalty levied against him pursuant to this subsection by written notice sent by certified or registered mail. If a person fails to pay the penalty within thirty days of receiving such notice, the superior court for the judicial district of Hartford shall, on application of the commission, issue an order requiring the person to pay the penalty imposed. . . .
8. In support of their position that the complainant had taken this appeal “frivolously, without reasonable grounds and solely for the purpose of harassing” the respondent board, the respondents raised Sikoski v. Board of Ethics, Town of Mansfield, et al, Docket #FIC 2009-656 (June 9, 2010). In connection with this case, the respondents contended that the complainant had alleged “that the Board had a quorum and was conducting business after its meeting of October 29, 2009 had adjourned.” The respondents further note that “this complaint was later rejected for lack of merit by the FOIC.” The fact is, however, that the Commission did not dismiss this complaint in its entirety, but instead found that the respondents violated the FOI Act in connection with a special meeting. See Docket #FIC 2009-656 (finding a violation of §1-225(d), G.S., because respondents conducted business other than that which was noticed on the special meeting’s agenda).
9. The respondents also raised for the Commission’s consideration two other cases involving this complainant. In Sikoski v. Board of Ethics, Town of Mansfield, Docket #FIC 2010-365 (Apr. 27, 2011), the complainant alleged that the respondent board had violated the open meetings provision of the FOI Act when three members of the board met in the hallway with the deputy mayor and had a discussion. This complaint was dismissed, as the Commission found that the discussion concerned the scheduling of an additional meeting, which did not involve a substantive discussion of town business. It is worth noting that, prior to the filing of the complaint in Docket #FIC 2010-365, the chairwoman pro tem addressed the complainant’s concerns with regard to this discussion on the record at a board meeting, indicating that the discussion solely concerned the scheduling of an additional meeting. Finally, in Sikowski v. Town Clerk, Town of Mansfield, Docket #FIC 2010-242 (Mar. 9, 2011), the complainant alleged that the respondent clerk violated the FOI Act when she failed to provide copies of certain individuals’ federal tax forms to him. The complainant failed to appear for the contested case hearing, while the respondent did appear to defend herself. The Commission found that the Town Clerk had not violated the FOI Act, as the requested tax forms were exempt from disclosure.
10. Finally, in their moving papers, the respondents mention two other cases not involving the complainant. See Wassmundt v. Board of Ethics, Town of Mansfield, Docket #FIC 2009-627 (June 9, 2010) (finding a violation of §1-225(d), G.S., because the respondent’s agenda was insufficient to apprise the public of the matters to be considered at a special meeting); Wassmundt v. Board of Ethics, Town of Mansfield, Docket #FIC 2009-690 (June 9, 2010) (complaint dismissed). However, these cases, involving a different complainant, are not helpful in determining whether this complainant has filed the instant complaint solely for improper reasons.
11. While previous FOI appeals involving Mr. Sikoski are not irrelevant to an analysis under §1-206(b)(2), G.S., the main focus of this statutory provision is on the motivation of the complainant with regard to the appeal currently pending before the Commission. See §1-206(b)(2), G.S. (stating, in relevant part, “[i]f the commission finds that a person has taken an appeal under this subsection frivolously, without reasonable grounds and solely for the purpose of harassing the agency from which the appeal has been taken. . . .”) (Emphasis supplied). It would be an adventure in speculation to try at this late date to discern why the complainant filed an appeal with the Commission last year or beyond. Moreover, more than merely showing what the complainant’s primary motivation was at the time he filed an appeal, the respondent bears the burden of showing that harassment was the only motivation that the complainant had when he filed his appeal. See id. (mandating proof that an appeal was filed “solely for the purpose of harassing the agency”). The Commission notes that, while the respondents contended at the §1-206(b)(2), G.S., hearing that it was an error to state in their moving papers that they “believe that these complaints are at least in part retaliation,” for the complainant’s replacement as chairperson, this statement seems to be a fair statement. Such statement, however, does not get the Commission to the legal threshold it must find in order to find a violation of §1-206(b)(2), G.S.
12. With this stringent standard in mind, the Commission finds that the respondents have failed to prove that the complainant filed the instant appeal in violation of §1-206(b)(2), G.S.
13. Section 1-225(a), G.S., provides in relevant part: “The meetings of all public agencies. . . shall be open to the public.”
14. Section 1-200(2), G.S., provides in relevant part:
“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. “Meeting” does not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.
15. Section 1-225(d), G.S., provides in relevant part:
Notice of each special meeting of every public agency … 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.
16. It is found that, prior to the March 7, 2011 special meeting referenced in paragraph 2, above, Ms. Wassmundt, a member of the public, sent Vice Chairman Nesselroth and the other Board of Ethics members an email with an attachment in the form of a brochure, which explained parliamentary procedures.
17. It is further found that, once he received the email and printed out the attachment, Vice Chairman Nesselroth had copyright concerns about using or transmitting the brochure without permission of the publisher.
18. It is further found that the March 7, 2011 special meeting was scheduled to commence at 6:00 PM. It is found that Vice Chairman Nesselroth was present at 6 PM, as was Elizabeth Wassmundt. It is found that, prior to calling the meeting to order, Vice Chairman Nesselroth addressed Ms. Wassmundt, expressing his copyright concerns. Specifically, it is found that Vice Chairman Nesselroth asked Ms. Wassmundt if she had received permission from the publisher to transmit the brochure to him and to the other members of the respondent board.
19. It is found that the March 7, 2011 special meeting was formally called to order at 6:10 PM.
20. The complainant submitted a post-hearing exhibit consisting of a tape recording of the pre-meeting communication. It is found that the entire exchange between Ms. Wassmundt and Vice Chairman Nesselroth occurred in less than eighty seconds. While the complainant attempted at the contested case hearing to bring in additional allegations concerning other pre-meeting communications that occurred on March 7, 2011, these allegations were not raised in the instant complaint. Therefore, the Commission will not address these allegations in this report.
21. It is found that the limited exchange between Vice Chairman Nesselroth and Ms. Wassmundt was not a hearing or other proceeding of the respondents. It is also found that this exchange was not a convening or assembly of a quorum of the respondents, nor was the exchange a communication by or to a quorum to discuss or act upon a matter over which the respondents have supervision, control, jurisdiction or advisory power.
22. Based on the foregoing, it is concluded that the respondents did not violate the open meeting provisions 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 dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 2012.
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:
135 Wildwood Road
Storrs, CT 06268
Saul Nesselroth, as Chairman, Board of Ethics, Town of Mansfield; and
Board of Ethics, Town of Mansfield
c/o Dennis O’Brien, Esq.
120 Bolivia Street
Willimantic, CT 06226
Cynthia A. Cannata
Acting Clerk of the Commission