Ethics Comm'n of The Town of Glastonbury v. Freedom of Info. Comm'n, 18601.

• Decision Date: 09 August 2011
• Docket Number: No. 18601.,18601.
• Citation: 302 Conn. 1,23 A.3d 1211
• Court: Connecticut Supreme Court
• Parties: ETHICS COMMISSION OF the TOWN OF GLASTONBURYv.FREEDOM OF INFORMATION COMMISSION et al.

302 Conn. 1

23 A.3d 1211

ETHICS COMMISSION OF the TOWN OF GLASTONBURY

v.FREEDOM OF INFORMATION COMMISSION et al.

No. 18601.

Supreme Court of Connecticut.

Argued Dec. 2, 2010.Decided Aug. 9, 2011.

Morgan P. Rueckert, Hartford, for the appellant (plaintiff).Mary E. Schwind, law department director, with whom, on the brief, was Colleen M. Murphy, general counsel, for the appellee (named defendant).Frank F. Coulom, Jr., and Jeffrey J. White, Hartford, filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

McLACHLAN, J.

The plaintiff, the ethics commission of the town of Glastonbury, appeals ¹ from the trial court's judgments dismissing the plaintiff's consolidated appeals from four decisions of the named defendant, the freedom of information commission (commission). In each decision, the commission had ordered the plaintiff to make and to maintain, for a period of three years, audio recordings of the plaintiff's executive sessions, or any other session closed to the public, after finding that the plaintiff had violated the open meetings provision of the Freedom of Information Act (act), General Statutes § 1–200 et seq., by convening in nonpublic sessions to discuss certain matters and further finding that the plaintiff had failed to comply with the commission's orders to amend its minutes to reflect those discussions. The dispositive issue on appeal is whether the commission's orders exceeded its remedial authority under the act. We conclude that they do, and, accordingly, we reverse the trial court's judgments dismissing the plaintiff's appeals.

The record reveals the following undisputed facts and procedural history. Effective August, 2003, the town of Glastonbury (town) adopted a code of ethics and established the plaintiff to investigate complaints of ethics violations. The four orders at issue in the present appeal arose in connection with unrelated meetings conducted by the plaintiff on September 13, 2004, December 13, 2004, January 10, 2005, and February 28, 2005, from which the public was excluded. In the September 13, 2004 meeting, the plaintiff went into executive session ² for the stated purpose of “consider[ing] written citizen communication containing potentially confidential information,” specifically, a complaint filed by the defendant town resident Karen Emerick ³ alleging unethical conduct by members of the town council. Because the plaintiff had not yet finalized its procedures for addressing such complaints, it discussed how to respond to Emerick's complaint, but did not address the merits of her allegations. At the three later meetings, the plaintiff met in closed session to consider requests for advisory opinions from various individuals, at which the plaintiff determined that it lacked jurisdiction over the matters. Following each of the four meetings, Emerick, individually, or in combination with the defendant town resident Dana Evans, filed a complaint with the commission alleging that the plaintiff had violated the open meetings provision of the act, General Statutes § 1–225(a).

Between ten months and one year after each of the challenged meetings, the commission issued final decisions on the complaints. In its August 10, 2005 final decision concerning the September 13, 2004 meeting, the commission concluded that the plaintiff had violated § 1–225(a) by convening in executive session for an improper purpose and directed the plaintiff to “cause minutes to be filed of the September 13, 2004 executive session.” The order specified that “the minutes [shall] disclose what transpired ... to the same degree as would have been revealed by conducting the session in public.” On December 14, 2005, the commission issued final decisions concerning the three closed meetings held between December, 2004, and February, 2005, which in all relevant respects mirrored its final decision and order relating to the September 13, 2004 meeting. The plaintiff did not appeal from those decisions.

After the plaintiff filed amended minutes summarizing its actions at each of the challenged meetings, Emerick individually, or in combination with Evans, filed complaints with the commission alleging that the amended minutes were not in compliance with the commission's orders. The commission first issued its decision with respect to the minutes of the September 13, 2004 meeting, concluding that the plaintiff had not complied with the commission's order because the minutes did not disclose what had transpired to the same degree as would have been revealed by conducting the session in public. With respect to relief, the commission concluded “that it would [not] be fruitful to continue to order the [plaintiff] to comply with its order ... given the apparent resistance of the majority of [the plaintiff's members] to comply, the passage of time, and the turnover in the [plaintiff's] membership.” ⁴ The commission determined, however, that meaningful relief was necessary “to rectify the denial of the public's right to attend the September 13, 2004 meeting in its entirety, and to rectify the denial of the public's right to have the [plaintiff] comply with an order of the [c]ommission to create minutes of executive sessions or other closed meetings of the [plaintiff]....” To provide such relief, the commission issued the following order: “Beginning [ninety] days following the issuance of this final decision, and continuing for a period of three years thereafter, the [plaintiff] shall make and maintain an electronic audio recording of each of its executive sessions, or any other meeting of the [plaintiff] that is closed to the public. All such audio recordings shall be preserved for the entire three year period.... The [plaintiff] may withhold from public disclosure each such audio recording unless it is found by the [c]ommission that the session so recorded was held in violation of § 1–225....” The commission set forth the following procedure under which it would make such a finding: “In the event that a complaint is filed alleging a violation by the [plaintiff] of the open meetings provision of the ... [a]ct, such recordings shall be made available to the [c]ommission for in camera inspection.” In its later decisions addressing the minutes for the three meetings held between December, 2004, and February, 2005, the commission made identical findings and issued identical orders.

The plaintiff appealed from the commission's decisions to the Superior Court, challenging the orders principally on statutory grounds. First, the plaintiff contended that such prospective relief exceeded the commission's remedial authority under General Statutes § 1–206(b)(2). Second, the plaintiff contended that the orders violated: (1) the legislature's intent to allow the recording of public meetings only, not executive sessions, as reflected in General Statutes §§ 1–225 and 1–226, as well as rejected amendments to the act that would have required the recording of executive sessions; (2) the protection afforded to confidential communications between the plaintiff and its attorney relating to litigation, as reflected in General Statutes § 1–210(b)(10); and (3) the bar against disclosure of confidential information in complaints and investigations relating to allegations of unethical conduct by public officials under General Statutes §§ 1–82a and 7–148h. Third, the plaintiff contended that the orders would have an undue chilling effect on its ability to engage in the aforementioned confidential communications. Finally, the plaintiff challenged the substantive basis for the commission's orders, claiming that it substantially had complied with the initial orders to amend the minutes and that the subsequent orders were an abuse of discretion.

Pursuant to motions filed by the plaintiff, the trial court stayed the commission's orders pending appeal, and consolidated the appeals for hearing. In its memorandum of decision, the court limited its analysis to the questions of whether the orders had exceeded the commission's remedial authority under the act and whether the legislature had intended to preclude the recording of executive sessions. As to the first question, the court concluded that the commission's authority was not limited to the specific remedies provided in § 1–206(b)(2), because “the commission has broad authority to fashion individualized remedies as befits the particular appeal that comes before it, as long as the remedy is specifically tailored ‘to rectify the denial of any right conferred by the ... [a]ct.’ ” The court also concluded that there was no statutory bar to ordering the recording of executive sessions. Accordingly, the trial court dismissed the appeals.⁵ This appeal followed.

Although the plaintiff renews all of the claims that it had raised before the trial court, the dispositive issue, in our view, is whether an order prospectively directing the plaintiff to record its executive sessions for the next three years exceeds the commission's remedial authority under the act. We conclude that it does.

“It is well established that an administrative agency possesses no inherent power. Its authority is found in a legislative grant, beyond the terms and necessary implications of which it cannot lawfully function. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 537–38, 79 A.2d 350 (1951).” (Internal quotation marks omitted.) Nizzardo v. State Traffic Commission, 259 Conn. 131, 155, 788 A.2d 1158 (2002). Indeed, “[a]n administrative agency, as a tribunal of limited jurisdiction, must act strictly within its statutory authority.... It is a familiar principle that [an administrative agency] which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” (Citation omitted; ...