Reprinted from The Trumbull Times © Copyright 2009
May 7, 2009

By Donald Eng

Despite reviewing hundreds of cases a year, Tom Hennick has never seen a complaint quite like the one he is now attempting to mediate.

Hennick, the public information officer for the state Freedom of Information Commission, said he cannot remember a case where the chairman of a commission filed a complaint against members of that commission.

"I don't know that it's unprecedented, but I can't remember another case like it," he said.

Complicating mediation is that one side has already admitted making a mistake and has assured him it would not happen again.

"Usually if we settle it in mediation, we may simply determine that one side violated FOI, and direct them not to do it again in the future," he said. "But I don't know what we'll do here."

The issue dates back to January, when the Town Council was discussing a Planning & Zoning fee schedule governing, of all things, the sale of Christmas trees in town.

Chairman Timothy Herbst, a Republican, was set to address the issue at the council's Jan. 5 meeting. But prior to the meeting, Commission Secretary Chris Costa and alternates Anthony Silber and Donald Scinto, all Democrats, met with First Selectman Ray Baldwin, also a Democrat, and several Democratic members of the Town Council.

In addition, Economic Development Director Deborah Cox attended the meeting.

"This is a serious concern because it appears that a town employee was a participant in what amounts to a party caucus," Herbst said. He added that he didn't fault Cox. Rather, he pointed the finger squarely at Baldwin.

"I understand that when the first selectman asks a town employee to step into a meeting, you can't expect the employee to say no, and cite FOI caucus rules," he said. "But as a former Town Attorney, he knew better."

Under the Freedom of Information Act, members of an elected body may hold a caucus, a private meeting, to discuss matters such as meeting strategy and upcoming votes. Only members of the same party belonging to the same body may participate. Thus, the Jan. 5 meeting appears not to have been a caucus.

But Hennick said the presence of three P&Z members could pose a potential problem because that would constitute a quorum of the five-member commission.

Since the three met and discussed a P&Z regulation, such a gathering could constitute an official meeting of the commission, one for which half of the members did not receive notice, there was no public notice and no written agenda. A meeting like that would, in fact, be a violation.

According to the Freedom of Information Act, a meeting is "any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multi-member public agency, and any communication by or to a quorum of a multi-member 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."

Exceptions to the rule include chance meetings and social gatherings where members do not discuss town business.

Baldwin, who requested the Jan. 5 meeting to clarify some questions about the proposed fees, has since admitted the error and submitted minutes from the meeting to Hennick. He said he thought he had been in compliance with the FOI Act.

The P&Z is a five-member panel, with five elected members and three alternates. The alternates, appointed by the first selectman from nominees submitted by the respective parties, sit in meetings and fill vacancies when an elected member is absent.

Baldwin said he did not realize that an elected member and two alternates constituted a quorum.

"The FOI Commission doesn't distinguish between alternates and elected members," he said. "I didn't know that at the time, so that was my error. It won't happen again."

But the promise of not conducting such meetings in the future rang hollow to Herbst, who said the complaint was an attempt to institute accountability.

"This is about transparency in government and selective application of information," he said. "He didn't think I'd call him on it, and he started backtracking once he got caught."

Herbst said that he ultimately was seeking official validation that such meetings were violations of FOI.

"The thing I need to emphasize is that this is part of a bigger picture," he said. "There needs to be transparency and openness in town government."