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Final Decision FIC2011-227
In the Matter of a Complaint by
FINAL DECISION
Guy R. Sullivan,
     Complainant
     against
Docket #FIC 2011-227
Anita Tremarche and Frank Reed,
Transition Committee, State of Connecticut,
Council on Developmental Disabilities,
and Transition Committee, State of Connecticut,
Council on Developmental Disabilities,
     Respondents
March 14, 2012

The above-captioned matter was heard as a contested case on September 16, 2011, at which time the complainant and the respondent Transition Committee appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. A Report of Hearing Officer was issued on September 30, 2011.  The Commission considered such report at its regular meeting of October 26, 2011.   At such time, the Commission remanded the matter to the hearing officer to add respondent Tremarche and respondent Reed as parties and to take further testimony concerning the imposition of civil penalties against the individual respondents.  A remanded hearing was conducted on November 21, 2011, at which time the complainant and all the respondents appeared, stipulated to certain facts and presented testimony, an exhibit, and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondent is a public agency within the meaning of §1-200(1)(A), G.S.
2. By letter filed May 3, 2011, the complainant appealed to this Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to maintain and provide copies of Transition Committee agendas and minutes from 2008 through the present.
3. The respondent Transition Committee contends that it is a “personnel search committee” and, therefore, its proceedings are not meetings within the meaning of §1-200(2), G.S.  The respondent contends that its proceedings need not comply with the public notice and minutes of meetings requirements of the FOI Act.
4. Section 1-200(2), G.S., provides in relevant part:
     ‘Meeting’ means any hearing or other proceeding of a public agency ... 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.
5. “Personnel search committee” is defined in §1-200(7), G.S., as “a body appointed by a public agency, whose sole purpose is to recommend to the appointing agency a candidate or candidates for an executive-level employment position.”
6. It is found that on April 11, 2011, the complainant requested, via e-mail, copies of all the agendas and minutes for all the Transition Committee meetings.
7. It is found that on April 11, 2011, the chair of the Council on Developmental Disabilities [“council”] responded, via e-mail, that the committee does not have any agendas or minutes because, she stated, “task forces of the Council are not required to maintain those.”
8. It is found that also on April 11, 2011, a staff member of the council informed the complainant that all members of the Transition Committee signed a confidentiality agreement and that no agendas or minutes would be made public because the committee discussed personnel matters.
9. It is found that the council formed the Transition Committee at the council’s meeting of September 16, 2008.
10.  It is found that the minutes of the council’s meeting for September 16, 2008, state that a member of the council moved “that the Council establish a Transition Committee to meet with DAS [Connecticut Department of Administrative Services] to review the job description for the Council’s Director position and to propose changes.” 
11.  It is found that the motion was seconded and passed unanimously.
12.  It is found that, contrary to the chair’s statement to the complainant that the committee does not have any minutes, the Transition Committee created minutes of its inaugural meeting of February 19, 2009.  It is found, however, that such minutes were not available for public inspection until April 8, 2011.
13.  It is found that minutes of the February 19, 2011 meeting contain the committee’s statement of its mission:
     [T]o provide guidance and direction in the replacement of the Executive Director of the Connecticut Council on Developmental Disabilities…The Transition Committee will evaluate all necessary tools and efforts including but not limited to transitional services, training, and other assistive aids to allow for the best possible executive succession…The Transition Committee will provide periodic updates to the [Council] as to information that is available to the public, but will keep all other information related to the search for the successor confidential.
14.  It is found that by including in its mission the search for a successor to the executive director, the committee exceeded the authority granted by the council, described in paragraph 10, above.
15.  It is found that the council did not authorize the committee to recommend a candidate or candidates to the council.  It is found that the committee’s only duties were to review the job description for the position of executive director and to recommend changes to such job description, notwithstanding the committee’s statement of its mission to the contrary.
16.  It is found that the Transition Committee continued to meet periodically and functioned as a de facto search committee by interviewing and selecting candidates for the council’s approval.
17.  It is found that the sole purpose of the committee was not to recommend a candidate or candidates to the council, as required by §1-200(7), G.S.
18.  It is found that the Transition Committee was not a “personnel search committee” within the meaning of §1-200(2), G.S.
19.  It is concluded, therefore, that the proceedings of the Transition Committee were meetings within the meaning of §1-200(2), G.S., and were required to comply with the notice and minutes of meetings requirements of the FOI Act.
20.  Section 1-225(a), G.S., provides:
     The meetings of all public agencies … shall be open to the public.  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.

21.  It is found that the Transition Committee failed to comply with any of the access requirements of §1-225(a), G.S.  In particular, it is found that the committee failed to open its meetings to the public, failed to record votes of its members and to make such records available to the public, failed to maintain minutes of its proceedings (except for minutes of the first meeting) and to make such minutes available for public inspection and to post such minutes on the council’s internet website, if available.
22.  Section 1-225(c), G.S., provides in relevant part:
     The agenda of the regular meetings of every public agency … shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) in the office of the Secretary of the State for any such public agency of the state...  For any such public agency of the state, such agenda shall be posted on the public agency’s and the Secretary of the State’s web sites.
23. Section 1-225(d), G.S., provides in relevant part:

     Notice of each special meeting of every public agency…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[.]
24.  It is found that the Transition Committee failed to post its agendas in accordance with either §1-225(c), G.S., or §1-225(d), G.S.
25.  It is concluded, therefore, that the respondent violated §1-225, G.S.
26.  Section 1-206(b)(2), G.S., provides in relevant part:
     In any appeal to the Freedom of Information Commission … the commission may … order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record.  In addition, upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial 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 the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars.
27. It is found that the Transition Committee interviewed several candidates and recommended three to the council for approval.  It is found that the council chose a new executive director from the three recommended candidates on June 14, 2011.  It is found that such executive director is now serving in that capacity.
28. The Commission believes that it would not be in the best interest of the clients served by the council to render the committee’s actions null and void.
29. With respect to the imposition of a civil penalty, the Commission finds the following facts:
30.  It is found that the complainant was appointed by the governor to a three-year term on the council at some point after the council’s formation of the Transition Committee.  It is found that the complainant was appointed by the council chair to serve on the Proposal Review Committee.
31.  It is found that when the complainant first asked for minutes of the Transition Committee, on April 11, 2011, he was told by the council chair, Anita Tremarche, that there were no minutes and that personnel matters were confidential.  It is found that Ms. Tremarche was mistaken.
32.  It is found that over the course of the next week, the complainant exchanged e-mails with the Frank Reed, the vice-chair of the council and chair of the Transition Committee, concerning the committee’s apparent failure to maintain agendas and minutes of its meetings.
33.  It is found from the e-mail chain that Mr. Reed considered the complainant to be disloyal and obstructive.  It is found that Mr. Reed insisted that there were no infirmities with the formation of the Transition Committee.  It is found that in an e-mail on April 20, 2011, Mr. Reed characterized the complainant’s persistent inquiries as “the Inquisition.”
34. It is found that in an e-mail dated April 19, 2011, among Mr. Reed, the former executive director, and Ms. Tremarche, Mr. Reed outlined his plan to inform the Governor that the complainant had created a “hostile workplace environment.”  It is found that Mr. Reed also stated in the same e-mail that he would be “asking [the governor] for a dismissal” of the complainant.
35.  It is found that on April 26, 2011, the complainant sent an e-mail to all members of the council in which he informed them of possible violations of the FOI Act by the Transition Committee and urged the council to address such issues before selecting a new executive director.
36.  It is found that in a response e-mail to all members of the council, Mr. Reed rejected the complainant’s concerns as confusing and frustrating, and threatened in conclusion:  “Be assured that the Transition Team is advised by counsel as these fallacious and libelous issues are addressed.”
37.  It is found that in reply to the complainant’s e-mail of April 26, 2011, described in paragraph 35, above, Ms. Tremarche sent an e-mail to Mr. Reed, the executive director, and four others, stating:
   I’m quite certain that it is time for someone in the State’s legal area to step in.
 
   The Transition Committee did not unlawfully expand its responsibilities, and I feel that his false and derogatory statements accusing us of misconduct are not just inappropriate, they have caused harm to our professional and personal reputations.
   …[W]ho do we need to contact to stop this man from his continued damaging statements[?]
38.  It is found that on April 26, 2011, following the complainant’s e-mail of earlier that day, described in paragraph 35, above, Ms. Tremarche sent a letter to the complainant, with a copy to Mr. Reed.  It is found that in such letter, Ms. Tremarche, as chair of the council, informed the complainant that, effective immediately, he was removed as chair of the Proposal Review Committee, and barred from participation on such committee, or on any other council committee.
39. It is found that Ms. Tremarche cited the complainant’s inability to lead the committee, and described the committee as “bogged down in process and with demands for copies of historical and other documents from staff.” *

*
The complainant was reinstated as chair of the Proposal Review Committee on May 28, 2011, due to procedural irregularities in his dismissal.

40.  It is found that the respondents resented the complainant’s persistent allegations that the respondents were in violation of both the state FOI Act and other federal law. 
41.  It is found that the respondents lacked appropriate knowledge of their obligations as a public agency pursuant to the FOI Act. 
42.  It is found that the denial of the complainant’s rights were without reasonable grounds, within the meaning of §1-206(b)(2), G.S.
43. Nevertheless, after thorough consideration of the entire record in this case, the Commission in its discretion declines to impose civil penalties against the individually named respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Forthwith, to the extent possible, the respondents shall create minutes for every meeting of the Transition Committee, except those for which minutes already exist.  Such minutes shall contain, at least, the names of all in attendance, items discussed, any motions, and a record of all votes.  All minutes of the Transition Committee shall be available to the public as required by §1-225, G.S.
2. Henceforth, the respondents shall comply with §1-225, G.S.
3. Within 30 days of receipt of the notice of final decision in this matter, the respondent council shall contact the FOI Commission to arrange for an educational workshop for all council members to be conducted by a member of the FOIC staff.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 14, 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:
Guy R. Sullivan
3129 Burr Street
Fairfield, CT  06824
Transition Committee, State of Connecticut,
Council on Developmental Disabilities
c/o Emily V. Melendez, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT  06141-0120
____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2011-227/FD/cac/3/14/2012