The above-captioned matter was consolidated for hearing with Docket #FIC 2011-280; Carol Manning v. Board of Selectmen, Town of Old Saybrook; and Police Building Committee, Town of Old Saybrook. It was heard as a contested case on September 12, 2011, at which time the complainant and the respondents appeared 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)(A), G.S.

2.  By email dated May 12, 2011 and filed with the Freedom of Information Commission (“Commission”) on May 12, 2011, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act (“FOIA”) by conducting “an unposted Board of Selectmen meeting”, without notice to the complainant. The complainant further alleged that First Selectman Michael Pace, Selectman William Peace, Public Works Director Larry Bonin, Town Attorney Michael Cronin, Harbor Management Commission Chairman Ray Collins and Harbor Management Commission member Les Bowman participated in the meeting which took place between April 18 and April 22, 2011. Finally, the complaint stated that “decisions had been made regarding important repair work on the municipal dock on Ferry Road” prior to the April 25, 2011 meeting of the Harbor Management Commission.

3.  Section 1-200, G.S., states in relevant parts:

    (1)  “Public agency” or “agency” means: (A) Any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official…. (emphasis added)

    (2) “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 chance meeting… a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency.… (emphasis added)

     (3)  “Caucus” means (A) a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision…

4.  It is found that the respondent Board of Selectmen has three members, First Selectman Michael Pace, William Peace, both enrolled Republicans, and the complainant, Carol Manning, an enrolled Democrat.

5.  It is further found that, between April 18 and April 22, 2011, there was a gathering for thirty to forty-five minutes for the purpose of discussing how to spend $250,000 to upgrade the dock at Ferry Road. First Selectman Michael Pace, Selectman William Peace, Public Works Director Larry Bonin, Harbor Management Commission Chairman Ray Collins and Harbor Management Commission member Les Bowman participated in the meeting, with Town Attorney Michael Cronin contributing by speaker phone. All six persons participating in the gathering were enrolled Republicans.

6.  It is found that, at the gathering between April 18 and April 22, 2011, there was discussion concerning whether to use metal or wood pilings in the repair of the dock at Ferry Road. Selectman William Peace recommended the use of metal pilings, while Harbor Management Commission Chairman Ray Collins urged the use of wood pilings. No consensus emerged.

7.  It is found that the level of communication between the Harbor Management Commission and the Board of Selectmen was poor. The gathering also had a purpose of coordinating the Harbor Management Commission and the Board of Selectmen, which is distinguishable from a purpose of determining the Republican position on the Board of Selectmen.

8.  It is also found that the respondent Board of Selectmen did not file any notice or minutes for the gathering held between April 18 and April 22, 2011.     

9.  Finally, it is found that the question of how to repair the dock at Ferry Road was a matter concerning which the Board of Selectmen had advisory power.

10.  As a result of the participation of the two members of the Harbor Management Commission (Collins and Bowman), Public Works Director Larry Bonin, and  Town Attorney Michael Cronin, who are not enrolled Republican Selectmen, it is concluded, following time tested and reasonable decisions of the Commission, that the gathering between April 18 and April 22, 2011 was not a “caucus” of the Republican Selectmen, as that term is defined at §1-200(3)(A), G.S. Advisory Opinion #57, In the Matter of a Request for Advisory Opinion, Assistant Corporation Counsel, City of Danbury, January 25, 1984; Docket #FIC 1998-200, Matthew A. Paulsen v. First Selectman, Town of Bethel; Board of Selectman, Town of Bethel; and Town of Bethel; and Docket #FIC 2005-314, Fred Musante and The Stratford Star v. Town Council, Town of Stratford. See also Giordano v. FOIC, 36 Conn. Supp. 117, 121 (1979): “The gathering thus was not of the Republican members of the board of aldermen.”

11.  It is concluded that the gathering was, pursuant to §1-200(2), G.S., a     “convening or assembly of a quorum of a multimember public agency … to discuss or act upon a matter over which the public agency has … advisory power”. Therefore, the gathering was a “meeting” of the Board of Selectmen pursuant to §1-200(2), G.S.   

12.  Because the gathering was a “meeting” of the Board of Selectmen, it is finally concluded that all the FOIA requirements for meetings were applicable (notice, open meeting and minutes). The meeting of the Board of Selectmen between April 18 and April 22, 2011 therefore violated the requirements of §1-225, G.S.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1.  Henceforth, the respondent Board of Selectmen, when convening a meeting, shall comply with all the requirements of §1-225, G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 22, 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:

Carol Manning
442 Main Street
Old Saybrook, CT  06475

Board of Selectmen, Town of Old Saybrook; and
Town of Old Saybrook
c/o Michael E. Cronin, Jr., Esq.
201 Main Street
P.O. Box 454
Old Saybrook, CT  06475

____________________________
Cynthia A. Cannata
Acting Clerk of the Commission