219 Conn. 685 | Conn. | 1991
Lead Opinion
The dispositive issue in this administrative appeal is whether the plaintiff, the elections review committee of the eighth utilities district (ERC), an ad hoc committee composed of one district director and three volunteer electors, is a public agency within the meaning of General Statutes § l-18a (a).
The material facts are undisputed. The eighth utilities district (district) is the corporate and political body responsible for providing sanitary, sewer and fire services for the town of Manchester. The district is governed by a board of seven members, consisting of a president and six directors. The parties do not dispute that the district, including the board, is a public agency within the meaning of § l-18a (a). After the annual meeting of electors for the district in May, 1988, the district board established the ERC to study the procedures of the annual meeting in order to expedite that process and to obtain greater participation by the electors.
The committee appointed was composed of one district director and three volunteer electors who held no office in the district. The ERC was requested to file a report with the district, but it had no authority to change the procedures of the annual meeting or to alter any provisions of the by-laws. The ERC met on several occasions, publishing notice of each meeting. Although one member of the ERC, Ellen Burns Landers, the district director, kept informal notes of the meetings, the ERC did not keep minutes and did not follow all of the requirements of the Freedom of
At the hearing before the FOIC, the ERC claimed that it was not subject to the requirements of the FOIA mandating that minutes of meetings be maintained because it was not a public agency within the meaning of § l-18a (a). Specifically, the ERC claimed that, because all of the committee members were not members of the district board, the public agency that created the ERC, and because it did not possess decision-making authority, it did not constitute a public agency pursuant to § l-18a (a). The FOIC held, however, that because the ERC was a committee of the district board,
The ERC appealed to the Superior Court, which sustained the appeal, concluding that the legislature, in amending § l-18a (a) to include committees as public agencies, intended “committee” to refer only to subunits composed of the respective public agency members, and not to a “committee” composed of some or all persons who are not agency members. The FOIC appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023.
The FOIC claims that the trial court improperly concluded that the ERC is not a public agency within the meaning of § l-18a (a) because: (1) the term “committee” is unambiguous and, therefore, the trial court improperly construed its meaning to exclude the ERC; and (2) even if the term “committee” were ambiguous such that it required construction, (a) the court failed to defer to the construction of the term by the FOIC, and (b) the court failed properly to ascertain the intent
The question whether the legislature intended a committee such as the ERC to be subject to the provisions of the FOIA when it enacted No. 83-372
On appeal, the FOIC first argues that the language of § l-18a (a) is unambiguous, and, therefore, the trial court’s reference to the legislative history was improper. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991).
“When application of the statute to a particular situation reveals a latent ambiguity in seemingly unambiguous language ... we turn for guidance to the
The FOIC claims that, should we conclude that § l-18a (a) requires construction, then the trial court failed properly to ascertain the intent of the legislature in enacting No. 83-372 of the 1983 Public Acts. After an examination of the relevant legislative history, we disagree.
While we agree with the trial court that much of the history of No. 83-372 of the 1983 Public Acts “is not too helpful,”
We turn, therefore, to the testimony of Pearlman in the legislative committee hearing in an attempt to glean a degree of clarity regarding the legislature’s intent in adding the phrase “including any committee” to the definition of “public agency.”
In particular, Pearlman testified that “[o]ne court believes that sub-units of public agencies, these are
The examples Pearlman used to demonstrate the problem that the bill would resolve further clarify the intent of the legislature. Pearlman discussed three cases. The first involved a subcommittee
All the examples provided by Pearlman involved committees comprising subunits of public agencies. His testimony reflects a concern that a public agency would set up committees composed of a number of its own members in order to conduct business without complying with the FOIA, with the public agency merely rubber-stamping the decision reached by the committee. This would preclude the public from participation in the governmental process in violation of the policy of our FOIA, namely, to keep governmental activity open to the public. Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980). The ERC, however, does not constitute such a committee or raise such a concern. Furthermore, there is no indication in the legislative history that the legislature intended a broader application of “committee” than that described by Pearlman at the committee hearing. We conclude, therefore, that in amending § l-18a (a), the legislature intended only that committees of public agencies that are subunits composed of members of the public agency be subject to the provisions of the FOIA.
The judgment is affirmed.
In this opinion Shea, Callahan and Glass, Js., concurred.
General Statutes § l-18a (a) provides: “ ‘Public agency’ or ‘agency’ means 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 any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions.”
The effect of No. 83-372 of the 1983 Public Acts was to add the following italicized language to General Statutes § l-18a (a): “ ‘Public agency’ or ‘agency’ means 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 offi
General Statutes § 1-21 provides: “meetings of government agencies TO BE PUBLIC. RECORDING OF VOTES. SCHEDULE AND AGENDA OF MEETINGS TO BE FILED. NOTICE OF SPECIAL MEETINGS. EXECUTIVE SESSIONS. (a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, 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, which minutes shall be available for public inspection within seven days of the session to which they refer. Each such public agency of the state shall file not later than January thirty-first of each year in the office of the secretary of the state the schedule of the regular meetings of such public agency for the ensuing year, except that such provision shall not apply to the general assembly, either house thereof or to any committee thereof. Any other provision of sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, notwithstanding, the general assembly at the commencement of each regular session in the odd-numbered years, shall adopt, as part of its joint rules, rules to provide notice to the public of its regular, special, emergency or interim committee meetings. The chairman or secretary of any such public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The chief executive officer of any multitown district or agency shall file, not later than January thirty-first of each year, with the clerk of each municipal member of such district or agency, the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. The agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, in such agency’s regular office or place of business or, if there is no such office or place of business, in the office of the secretary of the state for any such public agency of the state, in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency. 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. Notice of each special meeting of every public agency,
“(b) In determining the time within which or by when a notice, agenda or other information is required to be given, made available, posted or filed, under subsection (a), Saturdays, Sundays, legal holidays and any day on
Dodson requested, in particular: (1) copies of the minutes of all meetings of the eighth utilities district elections review committee; (2) copies of all surveys taken, including polls, and the results of any such polls; (3) copies of all written correspondence by electors concerning revisions to the eighth utilities district electoral process; and (4) copies of all decisions of the elections review committee regarding the eighth utilities district electoral process.
The ERC provided Dodson with a transcribed copy of informal notes taken by Landers, and informed Dodson that no polls were taken, no written correspondence was received, and no minutes were taken at the meetings. At the hearing before the FOIC, Dodson alleged that the ERC failed to provide him with proper minutes of all of its meetings.
The order entered by the FOIC provided: “1. To the extent possible, the respondent forthwith shall reconstruct minutes of its meetings between September 7,1988 to November 14,1988 inclusive, which shall reflect the time, date, and place of each meeting, the identities of the respondent’s members present at the meeting, the time when each member arrived at and departed from the meeting, and the business transacted and how each member voted on each decision and recommendation.
“2. The respondent forthwith shall both provide the complainant with these minutes and file them with the district clerk.
“3. Henceforth, the respondent shall act in strict compliance with the requirements of §§ 1-19 (a) and 1-21 (a), G.S. . . . recording of proper minutes and the filing of these minutes within the appropriate time period.”
See footnote 2, supra.
At the same time, the same authority defines the word in a legislative context as “a body of members chosen by a legislative body to give special consideration to pending legislation or to other legislative matters.” (Emphasis added.) Webster’s Third New International Dictionary.
A great deal of the discussion in the House of Representatives concerned various amendments to the bill that are not relevant to this appeal.
Representative John W. Atkin stated that the “bill is a fairly simple measure. It simply changes the definition of public agency. It’s been pointed out by Mr. [Pearlman], [general counsel] of the FOI[C], that what is happening in terms of subcommittees of public agencies is that sub-committees are appointed and there are two differing opinions that have gone through the courts as to whether they are indeed full committees or not and whether they have to fall under FOI[A] requirements.” 26 H.R. Proc., Pt. 4, 1983 Sess., p. 1348.
Although we generally restrict our review of a statute’s legislative history to the discussions conducted on the floor of the House of Representatives or of the Senate, we will consider such committee hearing testimony of individuals addressing the proposed enactment when such testimony provides particular illumination for subsequent actions on proposed bills, such as in this instance. See In re Jessica M., 217 Conn. 459, 472 n.10, 586 A.2d 597 (1991); see also State v. Magnano, 204 Conn. 259, 273-74 n.8, 528 A.2d 760 (1987) (testimony from legislative committee useful to illuminate “the problem or issue which the legislature sought to resolve, and the purpose it sought to serve, in enacting a statute”). This case presents an excellent example of a situation where the underlying intent of the legislature can be illuminated because of the direct reference to Pearlman’s testimony by Atkin on the floor of the House.
We note that throughout the discussions in the committee hearing, in the House of Representatives and in the Senate, the terms “committee,” “subcommittee” and “sub-units” were used interchangeably and without any obvious distinction intended.
A “quorum” is defined as “[t]he minimum number of officers and members of a committee or organization, usually a majority, who must be present for the valid transaction of business.” American Heritage Dictionary (1978).
We do not hold that a public agency may avoid having to comply with the provisions of the FOIA by appointing one or more persons who are not agency members to any of its committees. The facts of this case do not support such a pretext, however, and we will address such an occurrence when it is properly before this court.
We note that two of the three FOIC decisions cited by the FOIC were rendered prior to the amendment in question and, therefore, provide no indication of the agency’s interpretation of this amendment.
Dissenting Opinion
dissenting. I disagree that the elections review committee of the eighth utilities district is not a “committee” and thus is not a public agency subject to the Freedom of Information Act. General Statutes §§ l-18a through l-21k. As I read General Statutes § l-18a (a), it plainly includes a committee
The record establishes that the elections review committee (committee) was appointed by the eighth utilities district, a public agency, to formulate recommendations for changes in the district’s annual meeting procedures. The committee included one district director and three district electors. In the process of formulating its recommendations, the committee held a public hearing, but it did not otherwise comply with the requirements of the Freedom of Information Act. The gravamen of the complaint that brought this matter to the attention of the Freedom of Information Commission was the committee’s failure to keep minutes of its meetings as required by §§ 1-19 (a) and 1-21 (a) of the Freedom of Information Act.
The only issue before the trial court, and before this court, is whether the requirements of the Freedom of Information Act govern the activities of the elections review committee. The majority now concurs in the trial court’s holding that the applicable statutory provision, § l-18a (a), is ambiguous and that its legislative history counsels against inclusion of the elections review committee within the ambit of the statute. I disagree.
The text of § l-18a (a) includes, as a public agency, “any committee of any such [public] agency . . . .” (Emphasis added.) It is hard for me to find any ambiguity in that all-encompassing description. As the
Two possible sources of latent ambiguity may be conjured up in support of the contrary conclusion. On the present record, the facts show that the authority of the elections review committee did not encompass the enactment of bylaw changes for the eighth utilities district but was limited to making recommendations about such changes. That limitation on the scope of the committee’s authority is a commonplace in committee functioning, which, as Webster’s notes, typically focuses on preparation of a report to the appointing authority. Alternatively, on facts other than those presented by this record, a public agency might appoint a “committee” composed entirely of public-spirited citizens, who had offered to contribute their services pro bono to promote good government. Arguably, such a committee might fall outside of the scope of § l-18a (a), because it might not be a “committee of” the public agency. The possibility that a statute might manifest some latent ambiguity in other circumstances does not, however, make it ambiguous as applied to the elections review committee. See, by way of analogy, State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); Weil v. Miller, 185 Conn. 495, 500, 441 A.2d 142 (1981). I am unable to discern any other putative sources of latent ambiguity in § l-18a (a), and the majority opinion identifies none.
Conceding ambiguity, arguendo, I am equally unpersuaded that a functional analysis of § l-18a (a) supports excluding the elections review committee from the reach of the Freedom of Information Act. When we
In appraising the relevant legislative history, we must keep in mind what is at stake. If the elections review committee is entirely outside of the regulatory purview of the Freedom of Information Act, it is not only the preparation of proper minutes that will be excused. The committee, or its successor, will be free to conduct its deliberations entirely in private, having no legal obligation to conduct any public meeting whatsoever, whether its agenda be procedural reform or substantive amendment of the rules governing the authority vested in the utilities district. The eighth utilities district, in turn, upon receiving the report of the elections review committee or its successor, may vote to accept or reject the report without any public deliberations about the merits of its recommendations. For the process of getting business done, shaping the agenda is at least half the battle. No matter how well-meaning may be the intentions of the group to which that responsibility is delegated, to allow this crucial function to be conducted in deliberative proceedings from which the public may be entirely excluded is to validate a scenario that is inconsistent with the Freedom of Information Act’s strong legislative policy in favor of the open conduct of government and free public access to its records. Lieberman v. Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990); Board of Trustees v.
The legislative history on which the majority relies to counter this purposive construction of the 1983 amendment that added committees to the ambit of the Freedom of Information Act is the testimony of Mitchell Pearlman, the executive director and general counsel of the Freedom of Information Commission. Undeniably, Pearlman’s testimony focused on committees composed of subunits of public agencies. A ready explanation for that focus is that the then litigated cases arose in that context. That the legislature shared Pearlman’s concern about potential abuses arising out of committees composed entirely of public agency members does not demonstrate, to my mind, that it did not recognize the risk of a similar abuse for committees whose membership overlapped only partially with that of a public agency. Indeed, in enacting the amended § l-18a (a), the legislature, emphasizing the importance of public access to deliberations about public policy, specifically rejected a proposal to include within the coverage of the Freedom of Information Act only those committees that are empowered to make legally binding decisions. 26 H.R. Proc., Pt. 13,1983 Sess., pp. 4578-4628.
The Freedom of Information Act was intended to assure that public agencies in Connecticut conduct their affairs in accordance with the principles of open government. In extending that salutary principle to include committees appointed by public agencies to pursue a public agenda, the legislature intended, I believe, to include public access to the deliberations of any public committee on which any member of a public agency serves.
I respectfully dissent.