UPDATE: This report was updated at 8:30 am on May 12 to reflect that the commission has five attorneys including Elias Petersen.

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Charter Revision Commission (CRC) Chair Andrew Buzzi says while his commission workgroup meetings will not be warned or accessible to the public as they are happening, all pertinent materials used in those meetings will be available for public review after the fact.

Buzzi responded to The Newtown Bee after being approached about initiating the uncommon practice of breaking up the full commission — which is subject to all Connecticut Freedom of Information open meeting rules — into two-person workgroups that may exclude the public from their meetings, and are not subject to filing warnings or agendas before each of those multiple smaller teams meet.

The announcement of that practice triggered queries from members of the public as well as the local newspaper. But as he did with CRC members at their April 21 meeting, Buzzi assures The Bee and the public that the practice is permitted after seeking guidance from the state Freedom of Information Commission (FOIC), and providing documentation the last time the practice was challenged and deemed to be legal in a recent court case.

There was no initial objection to the planned practice by the five attorneys on the commission including Buzzi, Vice Chair James Gaston, Prerna Rao, Elias Petersen, and Anthony Filiato. They, along with commissioners Dennis Brestovansky and Scott Davidow have taken up the challenge of considering nearly two dozen suggested modifications or deletions from Newtown’s constitutional document.

The commissioners also have the prerogative to take up and recommend changes that have not been requested in the past. So Buzzi believes the most efficient and thorough way to research, present, deliberate, and act on full commission recommendations is to have three workgroups concentrating on separate charges put to the panel by the Legislative Council.

Buzzi’s ultimate goal is to have all CRC recommendations back to the council with enough time to have those revisions in front of local voters this fall.

“My hope is to be in position to have a draft recommendation by July,” Buzzi said, adding that those recommendations would accrue to the council immediately following a public hearing to expedite getting proposed revisions on ballot in time for Election Day.

Buzzi also hopes to jump-start the commission’s work by possibly acting on a handful of the less complex charges as early as the CRC’s next regular meeting, May 12.

The workgroups, with Buzzi serving as an ex-officio member of each, include one with Gaston and Filiato whose focus will be on the charge of evaluating whether the town’s Board of Finance should be eliminated.

A workgroup with Rao and Brestovansky will be dedicated to reviewing and recommending how to proceed with charges involving the Board of Education, and the third, with Davidow and Petersen, will consider any remaining charges already assigned by the council.

Considering The FOIA

In considering the unusual local practice of assigning tasks to workgroups that operate independently and outside the scope of FOI open meeting rules, the CRC chairman said he weighed the option heavily.

“It is incredibly important for the work of the Charter Revision Commission to be done in accord with FOI [statutes],” he told The Newtown Bee. “Our goal as a commission is to publicly debate and revise our Charter.”

But the chairman reiterated that any initial research and gathering of information will be done by workgroups who will then present their materials to the CRC during public meetings.

From there, and with the public invited to observe and comment, Buzzi said, “Vigorous discussion amongst the commissioners will ensue and action will be taken in public and in accord with our duty.”

“Before our first meeting, this process was discussed and reviewed with Tom Hennick of the FOI Commission to ensure maximum public participation in full compliance with the law,” Buzzi added.

The latest challenge to the closed workgroup practice, Buzzi said, came in a September 2020 Connecticut Supreme Court decision involving the city of Meriden and the state FOIC.

The crux of the outcome favoring the city appears to rest in the court’s finding that “a defining characteristic of a hearing or other proceeding [public meeting] is that it be undertaken by a public agency that has the authority to conduct official business or to take action.” And “for a gathering of individuals who are members of a public agency to constitute a hearing or other proceeding, therefore, it must be comprised of individual members of that public agency who have express authority to take action on behalf of the public agency.”

Since the members of each workgroup are only researching, discussing, and making recommendations that will be fully presented in a public meeting and deliberated by the full CRC in that venue before being voted on, the workgroups may convene without notice, and may exclude members of the public from any or all workgroup gatherings.

In comments by Justice Andrew J. McDonald, he relates that in January 2016, four members of the 12 member city council, namely, the majority and minority leaders and their respective deputies (leadership group), gathered at the city hall with the mayor and the retiring city manager to discuss the upcoming search for a new city manager.

At the gathering, the leadership [read: working group] agreed to submit a resolution to create a city manager search committee to the full city council for its consideration at an upcoming meeting. The leadership group drafted a one page proposed resolution, which listed the names of people to be considered for appointment to the committee and detailed the duties of the committee, including recommending to the city council suitable candidates for the city manager position.

At a city council meeting later that month, the leadership group introduced the resolution, which subsequently was placed on the city council’s consent calendar and was unanimously adopted.

Subsequent Court Actions

Following that meeting, a local newspaper appealed to the FOIC alleging that the leadership group gathering was an unnoticed and private meeting. The FOIC found the leadership group gathering violated the act.

After a Superior Court appeal that supported the FOIC, however, the state appellate court disagreed, in part stating that since the Meriden working group had no power of “adjudication,” the gathering of the leadership group did not constitute a meeting under the law — and, thus, did not trigger the open meeting requirements.

The appellate decision also considered precedent, stating the Meriden gathering, was “akin to a ‘convening or assembly’ as opposed to a ‘hearing or other proceeding,’ — and that “less than a quorum of members of a public agency generally does not constitute a ‘meeting’” under the law.

Once the matter was elevated before the state Supreme Court, and considered, Justice McDonald wrote in the decision, “For a gathering of individuals who are members of a public agency to constitute a “hearing or other proceeding”...it must be comprised of individual members of that public agency who have express authority to take action on behalf of the public agency.

“Moreover, a requirement that all communications between government officials that constitute ‘a step in the process of agency member activity’ be subject to the [FOI Act’s] open meeting requirements would disrupt the orderly and efficient functioning of government in a manner that the act does not contemplate.” Justice McDonald also noted that such provisions would “place a significant burden on government agencies that is beyond the scope of the language used in the [FOI] act.”

The decision further takes into account that the Meriden gathering was not created by any official resolution of the council whose members attended and did not constitute a quorum. And the working group had “no independent, express authority to take any action regarding the formation of the search committee that could legally bind the city council.”

Along with the possible disposition of several less impactful CRC charges, Newtown’s commissioners also plan to hear from either representatives of the Board of Education or the Board of Finance during the next regular public meeting, May 12.

Associate Editor John Voket can be reached at john@thebee.com.