The Freedom of Information Commission (FOIC) recently found that the Weston Board of Selectmen violated the Freedom of Information Act (FOIA) when it failed to provide proper notice of a hybrid meeting but did not violate the law by allowing residents to electronically join but not participate in the meeting.
The FOIC has recently found the Board of Selectmen (BOS) to be in violation of FOIA’s requirements to accurately describe executive sessions on two separate occasions. Those complaints, as well as two complaints decided by the FOIC on October 9, were brought by James Maggio.
Maggio also submitted a fourth complaint to the FOIC, alleging the BOS violated FOIA by holding an impromptu meeting at a town budget meeting.
In the first complaint the FOIC heard during their October 9 meeting, Maggio alleged that two meetings held by the BOS in December 2023 violated FOIA and asked that actions taken at that meeting be declared null and void.
On December 7, 2023, the BOS held a regular meeting in a hybrid format, allowing members of the public to attend the meeting virtually via Zoom and participate in person during public comment periods. According to the hearing officer’s report, the BOS posted the agenda for the meeting 24-hours prior to the meeting start time. The agenda also included instructions on how to join the meeting through Zoom either online or by phone.
FOIA requires public agencies post notice of meetings held electronically at least 48-hours prior to when they occur. Because the BOS only gave 24-hours notice, the FOIC found the BOS violated FOIA.
However, because there was no evidence that any member of the public was unable to participate in the meeting because of the late notice, the commission declined to void any actions taken during it.
After the December 7 meeting, the hearing officer’s report notes that the BOS switched to holding regular meetings solely in person but livestreamed their meetings via Zoom as “a matter of convenience.” The public was able to watch the meetings but not participate in the meeting via public comment.
The BOS’ next meeting was held on December 21, 2023 and the new policy allowing participants to join but not interact with meeting members via Zoom was in place. The meeting agenda, which the FOIC found the BOS posted the meeting agenda less than 48-hours prior to the meeting, invited participants to “view” rather than “join” the meeting.
The town attorney testified at a hearing on the complaint that this change in language was intentional in order to make it clear that “the public would be able to view or listen to, but not participate in, the December 21 Meeting via Zoom or by phone.”
The BOS argued in a brief submitted after the hearing that the notice requirements did not apply to the meeting because it was not publicly accessible via electronic means in the way the FOIA statute describes. They argued that if a meeting is held in person, as the December 21 meeting was, and electronic access is available for public viewing but not public participation, then the 48-hour notice requirement does not apply.
The FOIC agreed with this interpretation, finding that the statute was not meant to apply to a live broadcast of an in-person meeting and they did not violate FOIA by failing to post notice of the meeting 48-hours prior.
In the second complaint the FOIC heard during their October 9 meeting, Maggio alleged that during Weston’s annual budget meeting, held on April 24, 2024, first selectwoman Samantha Nestor and selectman Kerem Dinlenc held an illegal meeting with the town attorney.
According to the hearing officer’s report, after a vote for an amendment to reduce the proposed salary of a town employee in the tax collector’s office, Nestor “alerted the Town Attorney that she wished to speak with him for the purpose of obtaining legal advice.” Nestor and the attorney, who was serving as the parliamentarian, had been sitting on stage and left without notice and without a vote to recess the meeting and met off-stage.
Nestor then asked the attorney for “legal advice regarding potential liability to the town as a result of the amendment.” According to the hearing officer’s report, they were joined by Dinlenc a few minutes later. Dinlenc “objected to them interrupting the Town Meeting while it was ongoing to meet privately.” The attorney told Dinlenc “that he had been providing legal advice to the First Selectwoman, and that they would return to the Meeting shortly.” The attorney testified that the discussion involving legal advice ended once Dinlenc approached.
Testimony at a hearing on the complaint about the amount of time that elapsed between the time Dinlenc approached and the time they returned to the meeting. The attorney stated it was no more than two minutes. Maggio alleged it was closer to ten minutes. Maggio also “acknowledged that he had no knowledge of what was said during the discussion” between Nestor, Dinlenc, and the attorney” but claimed that regardless of what was said, the discussion constituted a meeting under FOIA because “the Town Meeting concerned the budget proposed by the Board.”
Under FOIA, a meeting is defined as “any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”
However, the FOIC found that the exchange did not constitute a meeting because it was not about a subject over which the BOS had jurisdiction and dismissed the complaint. The hearing officer’s report did note, however, that “spontaneous discussions among members of a multimember public agency–especially those that occur at a public gathering that concerns a matter closely related to the public business of the agency–carry an inherent risk that such members may inadvertently hold an unnoticed meeting by discussing a matter over which the agency has supervision, control, jurisdiction, or advisory power.”
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