Connecticut Freedom of Information Commission

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Final Decision FIC2015-534
In the Matter of a Complaint by
 FINAL DECISION
Patricia Mechare,
     Complainant
     against
 Docket #FIC 2015-534
Andrea Downs, Chairman, Board
of Education, Regional School
District 1; Board of Education,
Regional School District 1; Electra
Tortorella, Chairman, ABC Committee,
Regional School District 1; and
ABC Committee, Regional School
District 1,
     Respondents
May 11, 2016

     The above-captioned matter was heard as a contested case on November 16, 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. It is found that the respondents, the Board of Education, Regional School District 1 (hereinafter “the respondent Regional 1 Board”) and the respondent All Boards Chairs Committee, Regional School District 1 (hereinafter “the respondent ABC Committee”), held a combined meeting on July 22, 2015.  The posted notices and agendas for that combined meeting were printed on a single document.  It is found that the respondent Regional 1 Board noticed the meeting as a special meeting and that the respondent ABC Committee noticed the meeting as a regular meeting.
     3. It is found that, at the July 22, 2015 combined meeting, the respondents jointly discussed the one item of business that appeared on both agendas which item was described as “Anticipated Executive Session for Purpose of Superintendent Evaluation and Contract.”
     4. By letter dated and filed on August 20, 2015, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:
a. failing to indicate on the notices and agendas for the meetings that the meetings would be conducted jointly;
b. failing to specify on the agendas that action would be taken on any of the agenda items;
c. failing to fairly or sufficiently apprise the public of the action proposed or the business to be conducted, precluding intelligent preparation for participation;
d. by adding a non-contractual health insurance and stipend discussion to the agenda of the respondent Regional 1 Board special meeting;
e. by adding to the agenda of the respondent ABC Committee’s special meeting or, in the alternative, failing to vote to add that discussion to the agenda if the meeting was a regular meeting;
f. failing to reduce the members’ votes to writing or make such votes available to the public within 48 hours;
g. failing to prepare and post the minutes of the meeting within seven days of the July 22, 2015 meeting;
h. failing to post the meeting minutes on the website within seven days of the July 22, 2015 meeting;
i. failing to reference on the agenda the first and second motions taken at the meetings;
j. failing to formally invite each other into their respective executive sessions in violation of §1-231, G.S.; and
k. taking votes that were in conflict with each other.
     The complainant requested that this Commission declare null and void the meeting, and the votes and/or the actions taken by the respondents at the July 22, 2015 combined meeting.  The complainant also requested the imposition of a civil penalty against the individually named respondents. 
     5. With respect to the complainant’s allegations regarding the agenda, described in paragraphs 4(a) through 4(f), above, §1-225, G.S., provides in relevant part that:
(c) 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…Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.
(d) 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 clerk of each municipal member for any multitown district or agency… The notice 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. 
     6. With respect to the complainant’s allegation described in paragraph 4(a), above, it is found that it is apparent from the notice and agenda for the respondents’ July 22, 2015 combined meeting that they intended to hold a joint meeting.  Even if this was not apparent, it is concluded that there is nothing in the FOI Act that requires that the notice or the agenda specify that the meetings will be held jointly.
     7. Consequently, the complainant has not alleged a violation of the FOI Act and therefore, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant in paragraph 4(a), above.
     8. With respect to the complainant’s allegation described in paragraph 4(b), above, it is concluded that it is inherent in the meeting agenda that the business included therein might be considered and acted upon, including by way of a vote, at the meeting.
     9. Consequently, it is concluded, based on the facts and circumstances of this case, that the respondents did not violate the FOI Act as alleged by the complainant in paragraph 4(b), above.
     10.  With respect to the complainant’s allegation described in paragraph 4(c), above, contested case Docket #FIC 1990-048; Trenton E. Wright, Jr. v. First Selectman, Town of Windham, is informative.  In that case, the Commission found that the phrase “executive session - personnel matters” was too vague to communicate to the public the business to be transacted.  Also, in Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.  Finally, in Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”
     11.  It is found that the respondents’ discussions and actions during the July 22, 2015 combined meeting fell within the scope of the agenda item described in paragraph 3, above, and further, that the discussions and actions, including the votes, were consistent with the respondents’ past practice (a practice with which the complainant is familiar) and did not come as a surprise to the public.
     12.  It is found, therefore, that the respondents’ agenda fairly and sufficiently apprised the public of the business to be conducted at their July 22, 2015 combined meeting and it is concluded that the respondents did not violate the FOI Act as alleged by the complainant in paragraph 4(c), above.
     13.  With respect to the complainant’s allegation described in paragraphs 4(d) and 4(e), above, it is found that the respondents’ discussion of a non-contractual health insurance and stipend was within the scope of the agenda item “Anticipated Executive Session for Purpose of Superintendent Evaluation and Contract” because the discussion involved the terms of the superintendent’s contract by way of a modification to include an additional benefit. 
     14.  Consequently, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant in paragraphs 4(d) and 4(e), above.
     15.  With respect to the complainant’s allegations described in paragraphs 4(f), 4(g), and 4(h), above, §1-225(a), G.S., provides in relevant part that:
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 web site.  Each public agency shall make, keep and maintain a record of the proceedings of its meetings.
     16.  It is found that the complainant did not seek access to, or a make a request for, the votes taken at the July 22, 2015 meeting within forty-eight hours, or for the minutes within seven days of that meeting.  Rather, the complainant sent an email to the respondents on the eighth day after the meeting inquiring about the votes and minutes being posted on the respondents’ web site.   
     17.  At the hearing on this matter, counsel for the respondents represented that the votes and minutes were available for public inspection within the appropriate time periods.
     18.  Furthermore, it is found that the respondents are public agencies of a political subdivision of the state and therefore are not required to post the minutes of their meetings on an Internet web site under §1-225(a), G.S.
     19.  Consequently, it is concluded that the respondents did not violate the FOI Act as alleged by the complainant in paragraphs 4(f), 4(g), or 4(h), above.
     20.  With respect to the complainant’s allegations described in paragraphs 4(i), 4(j) and 4(k), above, it is found that the complainant has not alleged a violation of the FOI Act.
     21.  Based on the findings and conclusions above, there is no basis to declare null and void the actions taken by the respondents at the July 22, 2015 meeting.
     22.  Finally, there is no basis to impose civil penalties in this matter. 
     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 May 11, 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:
Patricia Mchare
c/o Daniel P. Murphy, Esq.
Kainen, Escalera & McHale, P.C.
21 Oak Street
Suite 601
Hartford, CT  06106
Andrea Downs, Chairman, Board of Education,
Regional School District 1; Board of Education,
Regional School District 1; Electra Tortorella,
Chairman, ABC Committee, Regional School
District 1; and ABC Committee, Regional School
District 1
c/o Gary R. Brochu, Esq.
Shipman & Goodwin, LLP
One Constitution Plaza
Hartford, CT  06103

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission
FIC/2015-534/FD/cac/5/11/2016