Opinion
No. CV 07 4014299S
January 8, 2008
MEMORANDUM OF DECISION
The plaintiff, Board of Selectmen, Town of Ridgefield, (the board) has appealed from a March 28, 2007 final decision of the defendant Freedom of Information Commission (FOIC) declaring null and void the acceptance of a resignation by town employee defendant Anthony Gaeta (Gaeta) and directing the board to henceforth comply with the Freedom of Information Act. The FOIC found that the board had violated portions of General Statutes § 1-225(d) when the Gaeta matter was addressed on April 1, 2006, at what was characterized by the board as an "emergency meeting."
The portions of the FOIC decision relevant to this appeal are as follows:
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2. By letter dated April 29, 2006 [Gaeta] alleged that [the board] improperly held an "emergency meeting" on April 1, 2006 and thereby violated the Freedom of Information ("FOI") Act when it: (a.) failed to file a notice of time and place of the April 1, 2006 meeting in the office of the clerk not less than 24 hours prior to the time of such meeting . . . (c).) conducted an "emergency meeting" and the purpose was not an emergency within the meaning of § 1-225(d); (d.) conducted business other than on the agenda . . .
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8. It is found that, in January 2006, the fire chief for the Town of Ridgefield announced his retirement, and that, during March 2006, a search was underway for a new fire chief. During this time, [Gaeta] was the assistant fire chief and had been with the Ridgefield fire department approximately 36 years. It is found further that [Gaeta] was a candidate for the fire chief position, but learned on March 27, 2006, that he no longer was being considered for such position.
9. It is found that on March 30, 2006, the first selectman, Mr. Marconi, received a telephone call from the human resources director, Ms. Scholl, informing him that a verbal altercation had occurred the previous day between [Gaeta] and [an employee named Hill], the public works director, during which [Gaeta] shouted and used vulgar language in front of a group of children. It is found further that during this telephone conversation, Mr. Marconi asked Ms. Scholl to "draw up the stipend" which would be offered to [Gaeta] for staying on as "acting fire chief" until a permanent fire chief could be hired.
10. It is found that, on March 31, 2006, Mr. Marconi went to [Gaeta's] office and gave [him] a memorandum describing the stipend and confirming a previous conversation regarding [his] becoming "acting fire chief" as of the close of business on March 31, 2006.
11. It is found that, during the meeting both [Gaeta] and Mr. Marconi became very angry and upset, and used vulgar language. It is further found that [Gaeta] threw papers at Mr. Marconi, moved around from behind his desk toward Mr. Marconi, and at one point said words to the effect, "I'm gonna kill you."
The record also shows that Marconi in the heat of this angry exchange told Gaeta that his "family would pay for this." Return of Record (ROR), p. 56. Both abusive statements have to be taken in the context that up to this point, the two men had been lifelong friends. FOIC Final Decision, #14. See ROR, p. 62, where Gaeta testified that he had known the first selectman (Marconi) all his life; their mothers had cared from them together. He was more than a town official to him. On page 101 of the record, Marconi describes his emotional state at the April 1 meeting, due to this relationship.
12. It is found that Mr. Marconi told [Gaeta] that he "was going to have to answer to the Board of Selectmen," that Marconi was going to call an emergency meeting of the board for 9:00 a.m. the next morning, and that [Gaeta] should attend.
13. It is found that, before Mr. Marconi left [Gaeta's] office, he asked [Gaeta] "so will you take the job as acting chief or not," to which [Gaeta] responded affirmatively.
The board argues that this exchange does not show that Gaeta had sufficiently calmed down at this point and Gaeta was still "out of control." The FOIC has resolved this fact otherwise. In addition, Gaeta testified: "And, in fact, the last thing that was discussed was Mr. Marconi asked me if I was going . . . to be the acting chief. And I said: `That for the town of Ridgefield and the fire department, I would.' And he left. And that, to my mind, that was the end of it. It was finished." (ROR, p. 55.)
14. It is found that, until the meeting described in paragraphs 10 through 13, above, [Gaeta] and Mr. Marconi had been lifelong friends.
15. It is found that, immediately after the meeting with [Gaeta] . . . Mr. Marconi called the second selectman, Ms. Manners, and described his encounter with [Gaeta]. It is found further that, during this conversation, Mr. Marconi and Ms. Manners decided to call an emergency meeting of the Board of Selectmen for 9:00 the next morning "to review [Gaeta's] conduct during the past week and during the entire interview process."
16. It is found that, at Mr. Marconi's request, on March 31, 2006, an administrative assistant called the other board members and informed them of the emergency meeting.
17. It is found that, on Saturday, April 1, 2006, the . . . board met at the town hall at 9:00 a.m., and that [Gaeta] was not present. It is found further that the . . . board [held] discussions regarding [Gaeta] . . .
18. It is found that the . . . board . . . voted to ask [Gaeta] for his resignation . . .
19 . . . It is found that when [Gaeta] arrived at the town hall . . . [he] was informed . . . that . . . the board was asking for his resignation and that, if he chose not to resign, he would be placed on administrative leave, without pay, pending an investigation into his recent conduct."
20. It is found that . . . [instead, Gaeta decided to retire] . . . [And] the . . . board then voted unanimously to "accept [his] resignation.
Based on these findings, FOIC evaluated the claim of the board: An emergency existed because the town would be in "potential liability" if it did nothing to resolve Gaeta's continued role as acting fire chief due to his erratic behavior in his encounters with Hill and Marconi. The FOIC concluded (1) that the situation did not constitute an emergency; (2) the twenty-four hour meeting notice was not complied with; and, (3) the printed agenda ("executive session to discuss details of fire chief contract") was not followed as other business (Gaeta's position) was discussed.
These mistakes by the board were found to violate General Statutes § 1-225(d). The FOIC therefore declared null and void the board's action of accepting the resignation of Gaeta from the fire department and ordered the board henceforth to comply strictly with the notice provisions of § 1-225(d). This appeal followed.
In light of the orders of the FOIC, aggrievement is found. State Library v. Freedom of Information Commission, 240 Conn. 824, 832 (1997).
The plaintiff makes the following claims on appeal: (1) the exception in § 1-225(d) for "emergency" is unconstitutionally vague; (2) the FOIC improperly concluded that the board's April 1 meeting was not based on an "emergency;" and, (3) the FOIC abused its discretion in declaring the action taken at the April 1 meeting null and void.
The court applies the following standard of review to the issues raised: "We note initially that our review of an administrative agency's action is controlled by the Uniform Administrative Procedure Act . . . The scope of review is very restricted . . . [T]he trial court may [not] retry the case or substitute its judgment for that of the commission. Even as to questions of law, the court's ultimate duty is to decide only whether, in light of the evidence, the agency acted unreasonably, arbitrarily, illegally or in abuse of its discretion. Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and reasonably and logically follow from those facts . . . [T]he applicable standard of review is whether the commission abused its discretion . . . [T]he burden of proving the applicability of an exception [to disclosure under FOIA] rests upon the party claiming it." (Citations omitted; internal quotation marks omitted.) Lewin v. Freedom of Information Commission, 91 Conn.App. 521, 525, 881 A.2d 159 (2005). In addition, the FOIC's "formally articulated interpretation of a statute" is entitled to deference either when it has been subjected to judicial review or "that interpretation is both time-tested and reasonable." Longley v. State Employees Retirement Commission, 284 Conn. 149, 163, 931 A.2d 890 (2007).
Turning to its first contention, the board challenges the constitutionality of the following portion of General Statutes § 1-225(d): "provided, in case of emergency any such special meeting may be held without complying with the foregoing requirement for the filing of a notice [not less than 24 hours prior to the time of the special meeting]." The board argues that the failure of the statute and any FOIC regulations to define "emergency" with precision renders the quoted statutory language subject to a finding of "void for vagueness." The FOIC replies that its reliance on the dictionary definition of "emergency" is sufficient.
ROR, Final Decision #7 provides: The FOI Act does not define "emergency." However, the Commission has looked for guidance to The Second College Edition of the American Heritage Dictionary (1982), which defines emergency as an "unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action."
The court agrees with the FOIC's position. "[A] statute is not void for vagueness unless it clearly and equivocally is unconstitutional, making every presumption in favor of its validity." (Internal quotation marks omitted.) Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999). "[A] party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of his case." Packer v. Board of Education, 246 Conn. 89, 106, 717 A.2d 117 (1998).
The board failed to meet its burden of demonstrating that the term "emergency" is overly-broad in all instances and prevented it from conforming its actions to the letter of the law. There is no constitutional violation for vagueness merely because the general term "emergency" is used in a statute, and it is left to a hearing to gather the specifics of whether an emergency existed. Courts have concluded similarly for close to one hundred years. See Baltimore Ohio Railroad v. Interstate Commerce Commission, 221 U.S. 612, 620 (1911) (Justice Hughes): "It is said that the words "except in the case of emergency" make the application of the act so uncertain as to destroy its validity. But this argument in substance denies to the legislature the power to use a generic description, and if pressed to its logical conclusion would practically nullify the legislative authority by making it essential that legislation should define, without the use of generic terms, all the specific instances to be brought within it. In a legal sense there is no uncertainty. Congress, by an appropriate description of an exceptional class, has established a standard with respect to which cases that arise must be adjudicated."
In a more recent case, the Illinois Supreme Court addressed a similar argument to that being made here. A retail firm, challenging a municipal Sunday closing law, contended that it was unconstitutionally vague because it did not define the term "emergency." The plaintiff had submitted an affidavit by a diabetic that she attempted to purchase orange juice and cheese for health reasons, and under the town law it was impossible to determine whether the purchase would be considered an "emergency."
The Illinois court rejected the contention. While due process requires that a statute not be so vague that one must guess at its meaning and must be sufficiently definite when measured by common understanding, "we are condemned to the use of words [and] we can never expect mathematical certainty from our language." Further: "In considering a vagueness challenge to a statute, absent a contrary legislative intent, a court will assume the words used in the statute have their ordinary and popularly understood meanings . . . Whenever possible, each word or phrase in a challenged statute will be given some reasonable meaning." The court then proceeded to quote the definition of "emergency" as found in Black's Dictionary (virtually identical to that employed by the FOIC here). The court concluded: "We believe this definition comports with the common understanding of `emergency' Thus, the use of [this term] in the ordinance does not render the ordinance unconstitutionally vague." (Citations omitted; internal quotation marks omitted.) Opty's Amoco v. South Holland, 595 N.E.2d 1060, 1066 (Ill. 1992). As in Opty's Amoco, the board in the present case did not have to guess at the meaning of the word "emergency" in § 1-225(d).
While the board also contends that the statute is unconstitutionally vague because the FOIC has arbitrarily enforced it (brief at 14), there are no instances cited to support this contention. The board can hardly mean that the FOIC decisions on what it has declared "null and void" after a finding of no emergency (brief at 19) support the board's contention that the FOIC has arbitrarily applied what is an "emergency" in the first place.
The second contention of the board is that the record does not support the FOIC's finding that the April 1 meeting was not based on an emergency. The board does not question the dictionary definition adopted by the FOIC that an emergency is "an unexpected situation or sudden occurrence of a serious and urgent nature that demands immediate action." The definition has been accepted by the Superior Court in Lebanon v. Wayland, 39 Conn.Sup. 56, 61, 467 A.2d 1267 (1983): "[T]he commission . . . has consistently found that the circumstances which permit an emergency meeting occur only rarely and only when there is no time for a special meeting notice to be posted twenty-four hours in advance."
The board argues that the FOIC's definition of emergency was met here because the town was facing a crisis — the acting chief of the fire department had "lost control" of himself and had threatened harm to the first selectman during a meeting. The board furthers its contention with the general rule that workplace threats are not condoned.
The board also relies for its contention on "zero tolerance" for workplace violence on a state executive order, never introduced into evidence before the hearing officer. While the FOIC objects to the court's consideration of the order, even if it were to be considered, it would not change the FOIC's factual finding that this was a nasty verbal confrontation between two friends. There is no showing that this confrontation was the type of issue to which the executive order was addressed.
On the other hand, the FOIC found that Gaeta's "threat" occurred in the context of an argument between two lifelong friends, that no police protection was called for either during the meeting or after, and that the dispute had been sufficiently resolved at the conclusion of the meeting. Gaeta's earlier outburst with Hill had not required official intervention. The factual finding of the FOIC was that there was no need to have a meeting before twenty-four hours elapsed and on a Saturday morning.
Based upon the standard of review stated above, the court finds that the FOIC has not arbitrarily or unreasonably applied the definition of emergency to the facts of record. MacDermid v. Department of Environmental Protection, 257 Conn. 128, 137, 778 A.2d 7 (2001). See also Rudy's Limousine Service, Inc. v. Department of Transportation, 78 Conn.App. 80, 94, (2003): "[W]hen an agency must make a case-by-case determination of matters that fall within the department's expertise, a deferential standard of review is proper even if the particular legal issue is a novel one."
Further the record shows that while the second selectman urged the first selectman to call a meeting on April 1, the exact time of the meeting was thrown out by the first selectman in the heat of argument. The record establishes that the call of the meeting, initially at least, was not a careful reaction to an emergency, but just a follow-up to the argument itself.
"And I [the first selectman] said, `In fact, I'm tired of being the one blamed for your actions and why you're not getting the job. And I've had it . . . `And I was screaming this. And I said: You're going to have to do this to the board of selectmen. There will be .a meeting 9:00 a.m. tomorrow morning, and you better have your hiney there . . ." (ROR, p. 99).
The board does not raise in this appeal the facts found by the FOIC that the notice, as it eventually appeared, stated that the meeting was called to discuss the fire chief's contract. ROR, Final Decision, #30.
Finally, the board contends that the FOIC abused its discretion because in other instances where it has not found an emergency existed, it did not declare the action taken at a meeting null and void. It is clear that the FOIC "may declare null and void any action taken at any meeting which a person was denied the right to attend . . ." General Statutes § 1-206(b)(2). Section 1-206(c) also gives this power to the FOIC "in its sound discretion." See Lebanon v. Wayland, supra at 62. The board has failed to demonstrate that the FOIC has abused its discretion. The determination to impose this sanction under these factual circumstances is not undercut merely because the agency did not impose this remedy in other cases that came before it. See Town of Seymour v. Freedom Of Information Commission, Superior Court, judicial district of New Britain, Docket No. 99 0498475 (November 28, 2000, Owens, J.).
The court finds that the board's contentions are without merit and dismisses the appeal.
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