The Freedom of Information Commission (FOIC) was acting within its power when it declined to declare actions taken at a January 2023 meeting of the Connecticut State Board of Mediation and Arbitration (SBMA) void, even after it found the body had violated the Freedom of Information Act (FOIA), according to the New Britain Superior Court.

The court’s recent ruling in favor of the FOIC also found that Richard Kosinski, who filed a complaint with the FOIC on January 25, 2023, alleging the SBMA had violated FOIA, failed to meet a burden of proof for claims that the hearing officer in the complaint was biased against him.

Kosinki’s complaint to the FOIC made several claims about how the SBMA had violated FOIA during a January 17, 2023 meeting, including by entering an executive session to discuss his potential appointment as an alternate public SBMA member. Kosinski also alleged that, after the board entered executive session to discuss his potential appointment, they did not reinvite him to join the meeting, which was held electronically. Additionally, Kosinski alleged the board failed to properly post the minutes from the meeting to their website.

According to the hearing officer’s report, prior to the January 17 meeting, the SBMA notified Kosinski that his application to be appointed as an alternate public member of the board would be considered. Kosinski requested that the appointment be discussed publicly during the meeting.

However, Kosinski’s complaint stated that, despite the request, he was told to leave the meeting prior to the discussion of his application and “did not hear anything, one way or the other” about the application and whether it was discussed in executive session. FOIA stipulates that, while a public agency can enter executive session to discuss appointments, an individual can request discussion be held at an open meeting.

Douglas Cho, the SMBA director, testified at a public hearing on the complaint and stated that the board’s chair made “an opening statement regarding his concerns about the FOI Act in relation to discussing the complainant’s application publicly or in executive session” during the meeting. Cho also stated that Kosinski was asked to leave the meeting so the board could enter executive session to discuss another application for appointment.

Because Kosinski’s application was not discussed during the executive session, the FOIC found the SBMA did not violate FOIA in this instance.

However, the FOIC found the SBMA committed a “technical violation” of FOIA by failing to reinvite Kosinski back to the meeting at the end of the executive session. According to the hearing officer’s report, “the SBMA took no action during the executive session” and did not take up any other business. Instead, the SBMA voted to adjourn the meeting.

The FOIC also found that the SBMA did not post meeting minutes until the beginning of February, at least two weeks after the meeting date, and therefore violated FOIA, which requires minutes to be posted no later than a week after a meeting.

The commission declined to impose a civil penalty, which Kosinski requested in a brief submitted after the hearing, and ordered the SBMA director to schedule FOIA training.

But Kosinski was not satisfied with the outcome and appealed to the superior court. In his complaint, he alleged that Cho had lied in his testimony to the FOIC, including by not mentioning he ordered Kosinski to leave the meeting, and had fabricated part of the meeting minutes.

Kosinski also alleged that the hearing officer’s handling of his complaint was biased.

“By his multiple rulings excluding from evidence any objected to [Kosinski’s] proposed exhibits dated after the January 17, 2023 meeting, the actions of [the FOIC’s] Hearing Officer (HO) were arbitrary and capricious, and an abuse of discretion.” Kosinski’s complaint alleged.

According to Kosinski, the hearing officer refused to add an email Kosinski sent to the SBMA in February 2023 seeking a recording and transcript of the January 17 meeting into the record, as well as a reply email stating a recording did not exist. Kosinski’s complaint alleged the hearing officer asked Cho if the record existed but “later deemed such nonexistence irrelevant.” He deemed this “arbitrary and capricious, and an abuse of discretion.”

Kosinski’s complaint also detailed other pieces of evidence he alleged the hearing officer declined to enter into the record. He asked the court to reverse the FOIC’s final decision and void all parts of the SBMA meeting related to his appointment application. Further, he sought an order directing the SBMA to conduct a meeting discussing his appointment and provide him “prior specific notice.” He also asked a civil penalty be brought against the FOIC.

But the court was not persuaded by Kosinski’s arguments and found that the final decision, based on the record, was correct. They also noted that the hearing officer has the statutory authority to decide when to ignore the part of FOIA that allows actions taken at meetings where the law was violated to be declared null and void.

The court also found that the evidence of bias Kosinski presented did not rise to the “height of those prescribed for judicial disqualification.” Kosinski, the court found, would have to demonstrate “actual bias, rather than mere potential bias.” They found that Kosinski’s claims of bias related to evidentiary rulings did not meet that standard and dismissed the complaint.

Republish This Story

Republish our articles for free, online or in print, under a Creative Commons license.