‘Scary and Slippery Slope’: With Reservations, Selectmen OK New Counsel for FOI Request

Saying they hoped it wouldn’t set a bad precedent or promote lack of transparency in town government, officials on Wednesday approved an appointed body’s request to engage a lawyer regarding an unexpected Freedom of Information Act request.

The FOIA request, filed by a town resident, seeks to know just who said what to members of the Charter Revision Commission, a volunteer group that convened one year ago to study and recommend changes to New Canaan’s major governing document.

As the full commission worked toward forming its Town Charter recommendations —to be put before New Canaan voters on Election Day, following approval from the Town Council—a subcommittee gathering information to inform the full commission conducted interviews with municipal employees and leaders on the boards that help govern the town.

Those interviewees had been told their identities would be kept confidential—an assertion now in question.

According to Town Council Chairman Bill Walbert, the Charter Revision Commission after receiving the FOIA request checked with the town attorney and others about its position and “the advice they were getting did not jibe with what they felt in their hearts—I guess is probably the best way to say it.”

“And they felt they would like to have different counsel whose thought process was more in line with that they felt their proper stance was,” Walbert told the Board of Selectmen during its regular meeting, held at Town Hall.

Selectman Nick Williams responded, saying: “So they are lawyer-shopping.”

“Not the first time that people have done that,” he continued. “I am just confused because: What legal basis do they have to take this position?”

Noting that though he himself is no expert in FOIA law, Williams, a lawyer, wondered aloud whether the firm that the commission was seeking to hire—Hartford-based Halloran & Sage, which has offices in Westport—had “come up with some gem of legal jurisprudence” to argue against releasing the who-said-what sought under FOI law.

Ultimately, the selectmen approved 3-0 the commission’s request to use the new lawyers.

First Selectman Rob Mallozzi said that he supported those who volunteer in New Canaan and did not believe members of the Charter Revision Commission thought they were doing anything wrong in granting confidentiality to interviewees.

“Let’s be really clear: They did not run over grandma, they are good people, they thought this was the right way to expedite getting the best information possible,” Mallozzi said.

“What bothers me as CEO of this organization is this: The FOIA Commission is a compliance commission, and so what we are being asked to do is to augment the legal advice that the town provides in the budget process—we budget $180,000, we have a firm that works in 14 towns in the area and has great experience and a great amount of respect, I think, from the FOI Commission—and we are saying as a town, ‘You know what? We are going to help you fight compliance.’ That, to me, is a little scary and slippery slope.”

The most widely discussed recommendation that came out of the Charter Revision Commission involves changing the first selectman’s role as chairman of the Board of Finance (see pages 4, 7 and 29-30 in the commission’s final report, available here and embedded below as a PDF).

Town Attorney Ira Bloom said he would prefer not to discuss publicly what he told members of the Charter Revision Commission, and that at this point “I would ask you to [the selectmen] to approve outside counsel.”

Noting that the “process of de-identifying” those interviewed had started prior to the town attorney being consulted, Williams asked Bloom whether—even if those interviewed had been just citizens and not town workers or those who are appointed or elected to municipal boards and commissions—the interviews with them still would be “susceptible to disclosure” under FOI law.

Bloom answered that in his opinion “typically if a public agency accumulates and uses information” then that information is public.

“How did we get here?” Williams said aloud. “This is like the Lakeview Avenue Bridge thing.” He referred to a large arbitration award that had been paid more than five years ago to a contractor, without the knowledge of town funding bodies.

Selectman Beth Jones said that Halloran & Sage was an expert firm in the area of FOI law and that she “would be in complete favor” of allowing the Charter Revision Commission to hire its own attorney. She asked for clarification on whether the matter would be a “one shot deal” before the Hartford-based FOI Commission rather than “a long, drawn-out appeal process.”

Bloom answered that it wasn’t yet clear.

Procedurally, a hearing is to be held Oct. 11 in Hartford before an officer of the agency, and the full FOI Commission would get that officer’s recommendation and render an official decision “several weeks later.”

Williams asked whether the FOI Commission’s decision would be fast-tracked, as requested, ahead of Election Day. Bloom said he didn’t know.

Mallozzi said that one of the lawyers on the Charter Revision Commission, Russell Kimes, “has stepped aside” and will represent himself as he didn’t think the new law firm would be helpful.

“That is something that weighs on me, as well,” he said.

The first selectman also said “the last thing” New Canaan wants is for the heads of town departments to demand different lawyers for matters that come before their areas of the municipal government and so “bifurcate the system.”

Mallozzi also wondered aloud whether, if the Charter Revision Commission ends up losing its decision before the state agency, “is there money that comes back to the town from the folks pushing so hard to have separate attorneys?”

“I don’t know where the taxpayer is the legal beneficiary of this,” he said.

Jones responded that she didn’t see where it would cost the town more to use Sage & Halloran than it would have if it had used the regularly retained counsel.

Dave Hunt, chairman of the Charter Revision Commission and an attendee at the selectmen meeting together with Penny Young, also a commission member, clarified for the selectmen that “all of the names of the people who are in these conversations were made public,” as were their notes. What was left undone was matching the names to the notes, Hunt said.

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