Exactly a year ago today, First Selectwoman Cheryl Morris presided over a Board of Selectmen (BoS) special meeting “to consider and if appropriate approve an Addendum to a Lease.“ Her office sent out the public notice the day before.
Last week the five-member Freedom of Information Commission ruled that Mrs. Morris had violated a state statute by issuing a statement that was so vague and abstract that nobody could know what she was talking about. By unanimous voice vote it then declared the 2 – 1 BoS vote approving a third addendum to the Stony Creek quarry lease to be null and void.“The most extraordinary action we can take is to declare an action taken by a municipality null and void. And when we take that action, if that doesn’t educate them as to what we mean by notice, there is nothing in the world that we can do,” Chairman Andrew J. O’Keefe, a partner in the Hartford law firm of Jackson, O’Keefe and Phelan, said during the hearing.At the hearing, Shelley Marcus, Town Attorney #2, argued that the Commission’s ruling was moot, because the BoS subsequently rescinded its action after the Representative Town Meeting passed a resolution requiring any revision of the quarry lease to come before it for review. The town owns the quarry.She announced the mootness issue as if it were just another simple fact that developed along the way. But in fact the new (third) addendum that the Morris administration worked out in deep secrecy because of “delicate negotiations” was arrived at without any other bids or zoning approvals. It changed the nature and possible uses of the historic quarry and set in motion a major political and civic confrontation.Over a two week period last year, the RTM Republicans sought an independent review of the new lease, the RTM Moderator, accepting Ms. Marcus’s advice, refused to post a special meeting, the Republicans on the RTM led by Kurt Schwanfelder, the RTM Minority Leader, hired their own attorney and orchestrated the new resolution and the Stony Creek Association weighed in. Overall, the meetings drew scores of citizens who attended many meetings in order to both protest and deal with the new third addendum.In the end, the second addendum was put back in force. But the new operator, Doug Anderson, was allowed for the time being to implement the most controversial part of the lease. Section 12 permitted non Stony Creek Granite to be moved into the quarry for subsequent distribution. John Opie, the Third Selectman, voted against the new addendum a year ago, saying Section 12 “opened the door to an industrial operation.”This controversial part of the lease is still before the RTM’s administrative services committee. The new addendum took effect January 1, 2007 and since then negotiations to solve the Section 12 issue have lagged. Residents have complained about intense truck volume at early hours on narrow roads.The FOI Commission adopted a 7‑page single spaced report written by hearing officer Victor R. Perpetua. The Perpetua report noted that the Quarry lease “was a matter of significant public interest and importance in the town, involving issues of revenue, traffic, environmental protection and preservation of an historic landmark.”The Perpetua investigation showed that Opie, a member of the Board of Selectmen, Pam Fowler, a Republican RTM member, and Mark Zaretsky, a reporter for the New Haven Register, all sought to find out what lease Mrs. Morris was talking about. Zaretsky and Fowler called the First Selectwoman’s office seeking clarification. No one called them back.Opie, who was to vote on the issue, was told to pick up a packet at the police station the day before. It was marked “confidential.” A letter inside the packet instructed him to share the contents with no one. At the BoS meeting, he asked Ms. Marcus about the secrecy. She said “it was the prudent thing to do,” perhaps because the contract had to be signed by August 31, 2006.Fowler said that she and RTM member Peter Black asked Opie what lease was involved and “he said at the time he was ‘sworn to secrecy’ and so he could not tell us.” Perpetua said that Opie should have had sufficient time to prepare to participate in the board’s decision. Opie said as much at the special meeting. Perpetua also found that Fowler was not given ample time to speak about the revised lease. Instead she raised the vague agenda issue that night.Perpetua found that Zaretsky did not attend the meeting, thinking that based on the agenda, not much would be taken up. Had he known it was the quarry he would have covered the meeting.“I would like to suggest that you shouldn’t need a road map or a treasure map or any kind of secret decoder in order to connect the dots to figure out what government is up to,” Zaretsky wrote in prepared remarks last January. He asked then, and at last week’s hearing that Morris and the Town’s attorneys, be required to take a FOIC seminar or refresher course on the law.The quarry was much in the news last summer not because of a new lessee but because of Granite-gate. And while Ed Marcus, Town Attorney #1, did mention there was a possible new lessee at a July granite-gate meeting, his observation was buried in the details of the imploding scandal. Marcus believes this mention signaled an alert to the townspeople.Not true, Perpetua found. “It is therefore concluded that …the vagueness of its agenda, combined with its concomitant failure to respond to the inquiries concerning the subject matter of the August 29, 2006 meeting, effectively denied the right of the reporter for the New Haven Register, and likely other members of the public, to attend the meeting.”Zaretsky and Fowler filed their formal complaints with the FOI Commission in September 2006. At a FOI hearing before Perpetua last January Ed Marcus represented Cheryl Morris and Trista Clyne Milici, Mrs. Morris’s assistant. Zaretsky and Fowler represented themselves. On August 7, Perpetua ruled for Zaretsky and Fowler.The full Commission’s hearing on August 22 heard from Ms. Marcus, Zaretsky and Fowler. Rep.Black was in the audience during the 25 minute session.“Who finds the greatest the greatest discomfort with the decision?” O’ Keefe, the chair, began by way of opening remarks.Ms. Marcus replied, “The Board of Selectmen.” She spoke softly, saying the town did not disagree with the law. It only had trouble with “what was left out of the opinion. It is our contention that the notice did comprise a fair notice.” Her main argument, like her father’s, was that “it was “common knowledge in the town that this addendum was for the Stony Creek lease.” At the same time the legal secrecy surrounding the negotiations might well have guided Mrs. Morris’s decision to approve a public notice that did not say what business was to be conducted.Perpetua wrote in his decision that Ms. Marcus believed the documents related to the lease were “privileged and confidential.” That, too, was misguided. Perpetua said the Marcus Law Firm failed to prove that the documents relating to the lease were exempt from disclosure under the FOI Act. He said Cheryl Morris conceded at the hearing that there was no reason not to use the phrase “Stony Creek Quarry lease.”Ms. Marcus refused to budge on the accuracy of the notice. It was at that point that O’Keefe decided to let her know she didn’t know what she was talking about. The following dialogue took place:O’Keefe: “Let me ask you a question about the language that you think is appropriate for the notice. Would you read me that language?” Marcus: “To consider and if appropriate approve an addendum to a lease.” O’Keefe: “To a lease? If you were a townsperson, what lease would that mean to you? What lease are we talking about?” Marcus: “It is our contention… O’Keefe: “No. no. I asked the question. You answer it. Marcus: “If I were a townsperson knowing what I knew in the days leading… O’Keefe: “No. No. No. You are just a townsperson. And you see the notice on the bulletin board. And it says we are going to have a meeting to consider and if appropriate approve an addendum to a lease.” Marcus: Silence. O’Keefe: “Who are the parties to the lease? How do you know from that who are the parties to the lease? Marcus: “If you take it…. O’Keefe: “No. no. How do you know?” Marcus: “I want to answer. O’Keefe: “No, I want an answer to the question,” he said, clearly exasperated. Marcus: “I know taken on its face by itself without the knowledge that a townsperson had it would be difficult for a person to know which one it was but with the additional knowledge that they had …it couldn’t be anything other than what it was.”After a few more questions, O’Keefe said: “What does the word notice mean? It means to tell people what is on the agenda. Marcus: “I understand.” O’Keefe: “Now how do I know what is on the agenda when it says an addendum to a lease. That is about as abstract a statement as there can be. And obviously various people couldn’t.”She nodded as he attempted to show her that her argument was absurd on its face. He won as much of a concession as she was able to muster.At the hearing last Wednesday Zaretsky said, “I have been a reporter for 21 years in Connecticut and I have never had to take a complaint all the way to the Commission. Usually filing a complaint is enough to loosen things up…” He said town officials could have said ‘you know what, we were wrong and this is how we are going to do it in the future.’‘’Fowler said afterward that the Commission’s ruling was a “real victory” and was extremely important in order to prevent further recurrences of “bad behavior.” Fowler asked the Commission to apply fines to Morris, the Marcus Law Firm and Trista Clyne Milici, saying they engaged in an abuse of power and showed a “blatant disregard for the people of Branford.” But the panel turned her down.After the decision Morris told The New Haven Register she disagreed with the ruling, but promised to be more careful in the future. Shelley Marcus had no regrets. Despite her grilling by O’Keefe and the Commission’s final ruling, Marcus told the Register: “The Town still believes that the agenda was correct and that everybody knew or should have known what the subject matter was.”This is a significant decision, one that sends a basic message about how to conduct open government. That is what the Town believes. It does make one wonder, looking back on the enormous energy it took by so many people at the RTM and the Stony Creek Association to undo the BoS’s vote, what might have happened had the FOI Commission been able to act quickly. It’s been a whole long year.###
Good work, I am proud of Mark Zaretsky and Pam Fowler, two private citizens who defeated a highly paid (guess who pays) lawyer like Ed Marcus and his incompetent and considerably less than intelligent daughter. Thank you for teaching these lawyers a lesson in law.
But you must realize your victory has enormous implications as it is now a legal precedent. I have myself won a FOIA complaint (against the University of Connecticut) but the commission refused to null and void the action for which the FOIA violation occurred. At the time they were only willing to issue a reprimand, and did not go further. You have now set a very important legal precedent where the FOIA commission nullified the action for which the violation occurred.
Your victory is to be celebrated not only by the concerned citizens of Branford, but by every citizen of the state of Connecticut who is concerned with actions that violates our very freedom and which is taken by regimes the like of which one can only find in a society governed by Fascists.
Thus Spake Moshe Gai.