Two Norwalk Dems allege Council majority violates open meeting laws

NORWALK, Conn. — The Democratic Council majority has been holding illegal caucus meetings, according to member Heidi Alterman (D-District D).

Barbara Meyer-Mitchell, a Democrat who recently served on the Board of Education, said she’s spoken to a Freedom of Information Commission (FOIC) attorney and been told the Council majority has been violating open meeting laws.

A retreat planned for Saturday morning was scrubbed after the pair alerted the press to alleged Freedom of Information Act violations and NancyOnNorwalk asked about the situation. Council President Greg Burnett (D-At Large) on Monday called their allegations “outrageous” and said he postponed the meeting “out of an abundance of caution,” with plans to get an opinion from the FOIC “to avoid any appearance of impropriety.”

In addition, Alterman provided emails to show that the Democratic Council majority has invited non-party members to their Monday evening caucuses, including City staff members.

Meyer-Mitchell provided an email exchange she had with FOIC public information officer Tom Hennick, in which she asked about the legality of the practice.

“My strongest advice to folks is always that a proper caucus is ‘same board, same party’ or someone who has signed on to be a member of the caucus,” Hennick wrote. “I would advise staff not to attend.  The mayor could attend if he or she is a member of the board or an ex-officio member of the board.”

In a November caucus meeting, Corporation Counsel Mario Coppola gave Council Democrats a preview of legal issues slated to be discussed the next evening during an executive session, an email forwarded by Alterman shows. In May, Building and Facilities Manager Alan Lo and Assistant Corporation Counsel Darin Callahan met with Democrats to discuss the South Norwalk School. LaToya Fernandez, then newly hired as the City’s first Diversity and Inclusion Officer, met with the Democratic caucus in October, another email shows.

Council member Tom Livingston (D-District E), who was Council President in October, said that when Fernandez came to a caucus, she “was invited to meet the members of the caucus.  No council business was discussed and she left immediately after the introduction.”

Burnett, in his Monday statement, said “both Democratic and Republican caucuses have invited non-caucus members to attend for specific purposes for decades.” He said he felt the meetings “fall within the caucus exception to the Freedom of Information Act rules.”

When Republicans held the majority more than eight years ago, there were allegations that they had staff members attend caucus meetings.

Alterman provided a Friday morning email from Burnett, detailing the planned Saturday retreat, which he said would be “conducted as a caucus meeting (no public access).”

It went to Council members, State Senate Majority Leader Bob Duff (D-25) and all of Norwalk’s Democratic State Representatives, Mayor Harry Rilling, Chief of Staff Laoise King and Chief Financial Officer Henry Dachowitz.

The agenda, which is not on the City’s website, included:

• Discussion with the State Delegation
• Update on the Efficiency Study Recommendations
• Discussion (Q&A) on the City Budget

 

Alterman said she forwarded the email “because it was emailed to more than 7 council members, which constitutes a public meeting I was told.”

She alleged that it would be illegal for Dachowitz to attend.

Burnett and Meyer-Mitchell each provided legal decisions supporting their competing points of view. Meyer-Mitchell’s was provided to her by FOIC Attorney Valicia Dee Harmon.

Burnett

“A review of opinions and decisions from the FOIC shows that the caucus exception is nuanced,” Burnett said.

• In 1976, FOIC ruled that the Town Council of Prospect’s Democratic majority did not violate FOI when two Republicans joined the Democratic caucus, because the Republicans “did not take part in the meeting as members of the political party but as petitioners seeking the favor of political support by the caucus,” given that one of them sought a political appointment and the other was there to argue the cause.
• In 2006, FOIC ruled that the Danbury Common Council did not violate FOI when a television reporter and Republican Mayor Mark Boughton attended a Republican Council caucus meeting. There was no evidence that the reporter participated or spoke to any members individually and Boughton’s “participation at the gathering concerned ‘strategy…with respect to collective bargaining’” and therefore “this portion of the gathering did not constitute a ‘meeting’ as defined in the FOIA, regardless of who attended and participated in the discussion at the gathering.”

Meyer-Mitchell

• In 1979, a State Superior Court ruled that Republican members of the Milford Board of Aldermen violated FOI when the Republican Mayor, two Republican staff members and an unaffiliated Milford man joined them in a gathering Democrats were not privy to. The Court’s ruling overturned an FOIC decision.

Harmon, writing to Meyer-Mitchell, said, “the court determined that, because all of the attendees were not all Republican members of the board of Aldermen, the gathering was not a caucus.  Rather, it was a public meeting, which should have had a notice and agency, and should have been opened to the public.”

Court Decision on Caucus

A ‘commitment to transparency’

Burnett, in his Monday afternoon statement, said:

“Council leadership prides ourselves in our commitment to transparency and holding ourselves to the highest of ethical standards, and I take exception to allegations to the contrary. The caucus exception to FOI laws is there for a reason. The law itself recognizes the importance and need for elected members of a legislative body who are of the same party to be able to talk, debate and strategize in order to achieve a common agenda. The democratic caucus meets regularly for precisely this purpose.

“It is true that from time to time, the caucus will invite a non-caucus member to come to our meeting for the purpose of presenting information. When that happens, the information is shared, and the non-member leaves before any discussion or debate occurs. We believe this is permissible and in keeping with the intent of the caucus exception.

“…While the participation of non-caucus members in a caucus is a factor that could require a gathering to be deemed a public meeting rather than a caucus, it is not the only factor. Consideration is also given to the purpose of the caucus, the role played by the non-caucus member and the topics being discussed, among other factors. I have attached two FOIC decisions to that effect.”

 

“Moreover, I would like to point out – as many are aware – we are experiencing another very tense budget season, where tensions are running high and very difficult decisions need to be made,” Burnett said. “If Ms. Meyer-Mitchell and Ms. Alterman had concerns or questions regarding if the meeting should be a public meeting rather than a caucus, they could have initially raised their concerns to me rather than going straight on social media and to the press with outrageous allegations. I hope in the future, we find ways to work more collaboratively.”

In a Monday evening statement, Burnett said, “The Freedom of Information Commission (FOIC) was unable to respond to our request for an advisory opinion today, as the staff member responsible is out until Wednesday.”

He said an opinion from the City’s Law Department “found that the law is crystal clear that a non-caucus member coming to a caucus does not automatically convert that caucus to a public meeting. The law provides that a non-caucus member cannot participate in any discussion, strategy or debate (this is distinct from being present and silent, or present and providing information). The non-caucus members invited to the caucus would have been acting in roles permissible under FOI.”

Although the “question at hand appears to be moot, we will continue to seek an advisory opinion from FOIC,” he said.

Although he had planned to reschedule the retreat to March 4, several Council members have prior commitments and a new date is needed, he said.

The sole Council Republican, District D representative Bryan Meek, dismissed the controversy.

“Small potatoes.  Bigger issues,” he wrote.

Meek was appointed to replace Tom Keegan, who retired in June after three years on the Council.

Keegan said he never felt excluded from information, writing, “If I had any questions I could ask them at Committee Meetings.”

‘Regret’ and suggestions

Meyer-Mitchell emailed the Council at 10 p.m. Monday, offering “regret if there was any concern caused by my noting the issue with your unnoticed retreat” but adding “this is not the first instance I have heard of that the Norwalk Common Council has invited staff into caucus to present to members.”

She said, “I know we all want our city to uphold the highest ethical standards and continue to work together to thrive by doing the public business in public” and offered suggestions that “were developed in consultation with staff at FOI Commission:

1. “Schedule training from an outside agency to review FOIA.
2. “Commit to only using Norwalk city email for city business, including caucus arrangements.
3. “Commit to only holding caucus with members within the caucus from the governmental body.
4. “Consider using city owned cellular devices that will be able to centralize call logs and texts to allow for more accurate FOIA responsiveness.”

 

The Council held a special meeting Jan. 30, where Assistant Corporation Counsel Tyisha Toms led a training session on Connecticut FOI. Corporation Counsel Mario Coppola advised Council members to use their City email addresses.

One of the emails Burnett sent over the weekend was from his private account.

Meyer-Mitchell on Monday thanked the Council members for their service and their “quick action to address the situation.”

“Serving in elected office isn’t easy, especially when also working and raising a family,” she wrote. “With everything before you, I truly hope you can recommit to conducting the public’s business in public. The public has a right to understand the information and thinking that underlies your votes on the issues that affect their lives.”

Reminder:

NancyOnNorwalk requires full names from commenters.

For more information, go here.