The above-captioned matter was consolidated for hearing with Docket #FIC 2011-245; Carol Manning v. Board of Selectmen, Town of Old Saybrook; and 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 and filed with the Freedom of Information Commission (“Commission”) on May 31, 2011, the complainant appealed to the Commission, alleging that First Selectman Michael Pace, Selectman Bill Peace and Dan Moran, Chairman of the Police Building Committee conducted a meeting, without “proper posting” and excluding the public, in the office of the First Selectman on May 27, 2011. 

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, an enrolled Republican, William Peace, also an enrolled Republican, and the complainant, Carol Manning, an enrolled Democrat. The respondent Police Building Committee has nine members.

5.  It is also found that the respondent Board of Selectmen did not file any notice or minutes for any meeting held on May 27, 2011.     

6.  It is further found that, commencing around 2:30 p.m. and concluding at 2:51 p.m. on May 27, 2011, there was a gathering in the office of First Selectman Michael Pace, with the door closed, of three individuals: First Selectman Michael Pace, Selectman William Peace, and Dan Moran, Chairman of the Police Building Committee. Initially, Mr. Moran met alone with the First Selectman, and then Selectman William Peace joined the gathering.

7.  It is also found that the gathering was not a “chance meeting” in that the meeting did not occur because the participants had a purpose other than meeting with each other (such as, for example, attending a retirement dinner). Indeed, Mr. Moran stated that he was in the habit of dropping by to talk to the First Selectman when he was in town hall prior to meetings of the Police Building Committee.

8.  At the hearing, Selectman William Peace, contended that he only recalled discussing Mr. Moran’s experiences at Connecticut Central State University, though he allowed that it was conceivable that something might have been said about the work of the Police Building Committee. Dan Moran, Chairman of the Police Building Committee, contended that he only recalled discussing the replacement of the windows at the Kathleen E. Goodwin School. (First Selectman Michael Pace was quoted in a newspaper article, dated August 1, 2011, also saying that the meeting was to discuss the replacement of the windows at the Goodwin School.) Mr. Moran testified that the binder which he had under his arm as he left the gathering was for the meeting of the Police Building Committee that would follow that afternoon.

9.  It is found that the Police Building Committee was at the center of a difficult local dispute concerning the specifications for an appropriate police building, subsequent to the flooding of the previous police headquarters. There was a disagreement between the police chief and the First Selectman concerning the appropriate size and expense for the police headquarters. The May 27, 2011 gathering in the First Selectman’s office took place following a second charge to the Police Building Committee, which called for a smaller, less expensive building than had been envisioned by the first charge. The Police Building Committee had met four times to try to reconcile the views of advocates for the police department with the perspective of citizens concerned about municipal tax burden in a difficult economy.

10.  It is found that the May 27, 2011 gathering of First Selectman Michael Pace, Selectman William Peace, and Dan Moran, Chairman of the Police Building Committee included discussion of the replacement of the windows at the Kathleen E. Goodwin School, a matter concerning which the Board of Selectmen had advisory power. It is also found that, given the controversy and difficulty surrounding the deliberations of the Police Building Committee, it is more likely than not that the May 27, 2011 gathering included discussion of an appropriate police headquarters, a matter concerning which the Board of Selectmen had supervision, control, and jurisdiction.

11.  As a result of the participation of Mr. Moran, who is not an enrolled Republican Selectman, it is concluded that the May 27, 2011 gathering was not a “caucus” of the Republican selectmen, as that term is defined at §1-200(3)(A), G.S.  Giordano v. FOIC, 36 Conn. Supp. 117 (1979). This conclusion is also consistent with the time tested and reasonable decisions of the Commission. 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.

12.   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 supervision, control, jurisdiction or advisory power”. Therefore, the gathering was a “meeting” of the Board of Selectmen pursuant to §1-200(2), G.S. (The Commission acknowledges that a three member board of selectmen, with only two members constituting a quorum, requires special vigilance in order to avoid meeting violations of the FOIA.)

     
13.  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 May 27, 2011 meeting of the Board of Selectmen therefore violated the requirements of §1-225, G.S.

14.  In that only one member of the Police Building Committee was present at the May 27, 2011 gathering, it is concluded that there was no “meeting” of the respondent Police Building Committee and that it did not violate the requirements of §1-225, G.S.    

The following orders by the Commission are 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.

2.  The complaint is dismissed as to the respondent Police Building Committee.
      

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
Police Building Committee, 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