The town of Weston’s Board of Selectmen (BOS) inappropriately entered into executive session to discuss the vacant Board of Ethics (BOE) on two separate occasions. The Freedom of Information Commission (FOIC) recently ruled the town had violated the Freedom of Information Act (FOIA) by doing so in two separate complaints brought by James Maggio.
In the first case, the BOS held a special meeting on May 3, 2023, and entered into executive session to discuss “pending litigation regarding the dog park and Board of Ethics,” according to the meeting agenda. Maggio’s complaint alleged the special meeting was improper because there was no pending litigation against the BOE at the time.
According to the FOIC’s ruling, around the time the special meeting occurred in May 2023 the BOS was considering taking action to remove some and potentially all of the BOE’s members for cause.
The fallout was the result of a BOE finding against selectwoman Amy Jenner, which the BOS ultimately rejected and voted to rescind.
The BOS planned to take those issues up at a May 17, 2023 special meeting.
According to the FOIC’s decision, former BOE member Ruth Israely emailed the BOS on April 23, 2023, asking a written statement of the issues it planned to discuss at the regular meeting be issued and that a hearing on BOE members’ conduct be postponed for 90 days so they could obtain legal counsel. The email was also forwarded to the town’s attorney.
On April 24 Israely emailed the BOS again requesting a statement of alleged violations against the BOE, a 90-day continuance of the hearing, and the recusal of two selectmembers Isrealy believed were biased against her from the hearing.
The same day, Israely telephoned the BOS’ attorney and informed him that she was preparing legal paperwork to enjoin the board from proceeding with the proposed May 17, 2023 special meeting. That injunction was never served.
A memorandum dated April 26, 2023, also showed the BOS’ legal counsel was preparing a legal memorandum to provide them with legal advice.
At a hearing detailed in the complaint, legal counsel for the BOS conceded it was improper for them to enter executive session at the May 3 meeting to discuss pending litigation over the BOE when it had not received a written notice detailing a demand for legal relief, had not been served with a complaint seeking to implement legal relief, and was not considering taking its own action to enforce legal relief.
FOIA allows a public agency to enter into executive session to discuss matters relating to the appointment or employment of public officers, strategy and negotiations related to pending litigation the public agency is involved in, matters concerning security, discussion surrounding certain real estate transactions, and discussion of any matter that would lead to the disclosure of records that are exempt under FOIA.
The FOIC found that the April 26 memorandum met FOIA’s definition of privileged attorney-client communications and that the BOE entered into executive session to discuss legal advice contained in the memorandum. As a result, they found the BOE did not violate FOI by entering into executive session.
However, the FOIC found that the BOE did violate FOIA by failing to accurately describe the purpose of the May 3 executive session.
The second case brought by Maggio also alleged that the BOE violated FOIA by improperly entering into executive session during a May 17, 2023, special meeting. Per the meeting agenda, the reason for entering executive session was described as “Executive Session regarding Board of Ethics” and citing the relevant portion of FOIA.
During a hearing in the case, representatives for the BOE testified that they discussed the April 26 legal memorandum prepared by their attorney.
But in this case the memorandum was not protected by attorney-client privilege because, according to the FOIC’s ruling, even if it had once been privileged, it was disclosed to the public prior to the May 17 executive session and was therefore not exempt from disclosure. As a result, the FOIC found that entering into executive session to discuss the memorandum was improper.
The BOE claimed that they entered the May 17 executive session to discuss strategy or negotiations relating to pending litigation against them, referencing Israely’s April 24 telephone call alluding to legal paperwork being prepared to enjoin the BOS. The BOS argued this was a proper use of executive session.
Again, the FOIC found that Israely never filed the injunction. However, the BOS argued that Israely’s April 24 phone call, as well as her April 24 email to the BOS provided a basis for the BOS’ belief that pending litigation existed against them at the time they entered executive session on May 17.
They also found that while Israely’s email requested certain legal actions it did not meet the definition of a request for legal relief under FOIA and therefore did not constitute a pending claim, nor did Israely’s phone call. As a result, the FOIC found the BOS did not have a valid reason to enter executive session
In a post-hearing brief, the BOS argued that the May 17 executive session was proper because Israely’s communications constitute pending litigation. Under FOIA, pending litigation does not need to be in writing in order to be discussed during executive session. The BOS argued discussion of the removal of Israely and other BOE members constituted a discussion of pending litigation and a legitimate reason to enter executive session.
However, the FOIC that removing BOE members would occur by vote at a public meeting. They also found that, while the BOS testified they discussed Israely’s threat of an injunction during the executive session, they did not testify or provide evidence that they were considering taking legal action against her or other BOE members.
Maggio also submitted two affidavits from selectmembers Amy Jenner and Martin Mohabeer that stated neither recalled discussing an injunction during the May 17 executive session, which led the FOIC to conclude that no legal matters were discussed during the session and that the BOS violated FOIA by entering into executive session.
The BOS was given two weeks from the April 10, 2024 date of the decision to make minutes from the executive session public.
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Very grateful to CII for their continued coverage of this matter critical to the Town of Weston, and by extension, the entire State of CT. By way of follow-up, it might be instructive for CII to update the report to include status of the Weston Ethics Board itself now 18 months after it’s last public monthly meeting in October, 2022, and a year after its dissolution. As of this writing, 16 months after the first Ethics Board member resignation, Town of Weston leadership has appointed only 2 of 5 Ethics Board replacement members, precluding any meetings or work of the Ethics Board due to lack of Quorum. Of the 15 other standing appointed TOW Boards and Commissions, as of this writing, none have more than 2 vacancies, and none have so many vacancies as to preclude quorum.