Over the past week, inaccurate information reported in the media began to approach the status of “fact.” It was accepted that volunteers who serve on our town boards and commissions are somehow personally liable and not protected by the town when their decisions lead to law suits, although this is not true.
A statement in Bob Horton’s most recent column, for example, reinforces the inaccuracy, as do recent letters to the editor. Horton writes: The town should have a clearly stated policy of defending all decisions reached by its boards and commissions. The alternative is chaos. But this assertion ignores the fact that the town does defend the decisions reached by its boards and commissions, and also defends individual board and commission members if they are sued separately. The town has always assumed the costs in law suits involving decisions by town boards and commissions as well the costs of defending individual members. Moreover, this is not just a matter of policy. The town is required to do so by state statute. All this assumes, of course, that board and commission members act in good faith, and not in a reckless or capricious manner.
And this caveat may be an important clue in understanding how the erroneous idea gained currency in the first place.
In the aftermath of the Planning and Zoning Commission’s stunning 3-2 vote to deny Chase’s application to put a bank in Cos Cob where the Bella Nona restaurant is now located, Commission members, faced with a possible law suit, convened in executive session for a briefing from the town’s law department. The idea that Commission members – and by implication all town officers – are personally liable for legal fees and for any award should the town lose a suit came from a Commission member who was present during that executive session and provided certain information to the press.
There is no doubt that something was said in executive session that led Commission members to believe they may be personally liable for their board’s decision on the Chase application. And this, in itself, is revealing. It provides a clue as to what may have been discussed in executive session. Reading between the lines, one might infer that the town is in a weak position to defend the Chase decision and that the personal liability of Commission members would come into play if the court determined their vote was not based on legitimate zoning concerns, but rather constituted discrimination against banks, something that is not legal.
Of course this is all pure speculation on my part. I have no inside information. But the very fact that I have any information at all upon which to base my speculation is disturbing, since the purpose of executive sessions is to keep sensitive information confidential when disclosure would be harmful.
Connecticut’s Freedom of Information Act (FOIA) serves the public in important ways by ensuring that meetings at all levels of government are always open to the public, that all votes are taken in public session, that the public has access to government records and that notices of meetings, agendas and minutes are posted properly and in timely fashion.
However, FOIA allows a public agency to close portions of a meeting, i.e. to go into executive session, but only for very specific reasons.These permissible reasons are limited to: discussion of a specific employee, unless the employee requests the discussion be held in public; strategy and negotiations regarding pending claims and litigation; security matters; real estate acquisition if openness might increase the price; and any matter that would result in the disclosure of a public record exempted from the disclosure requirements for public records.
To make public “strategy and negotiations regarding pending claims and litigation” could seriously undermine the town’s position. Let’s hope that in this particular case, the only harm done is confusion regarding the extent to which the town provides legal protection for members of its volunteer boards and commissions.