Common Council

COMMON COUNCIL MIDDLETOWN CONNECTICUT SPECIAL MEETING WORKSHOP: FREEDOM OF INFORMATION ACT AND ETHICS CODE THURSDAY, JANUARY 25, 2024 6:30 PM MINUTES A Special Meeting of the Common Council of the City of Middletown – Workshop: Freedom of Information Act (FOIA) and City Code of Ethics – was held on Thursday, January 25, 2024, beginning at 6:30 PM. This meeting was a hybrid meeting with in-person participation in the Common Council Chamber. The meeting was also remotely accessible via WebEx, livestreamed on Facebook, on local cable access television, and on the City’s webpage. Present: Councilman Eugene Nocera, President Councilman Anthony Mangiafico Councilman Vincent Loffredo Councilman Steven Kovach Councilwoman Jeanette Blackwell Councilwoman Linda Salafia Councilman Darnell Ford Councilman Anthony Gennaro, Sr. Councilman Grady Faulkner, Jr. Councilman Jonathan Pulino Councilwoman Kelly Sweeney Councilwoman Leslie Spatola Also Present: Linda Reed, Clerk of the Common Council City Staff: Legal -- Kori Wisneski, Esq., Deputy General Counsel Public: Chamber: unknown WebEx: approximately 10 Facebook: unknown 1. Call to Order Common Council President Eugene Nocera is seated as meeting Chair. The Chair calls the meeting to order at 6:34 PM. He welcomes everyone to the Common Council’s Special Meeting, a Workshop on the Freedom of Information Act and City’s Code of Ethics. A. Pledge of Allegiance The Chair asks everyone to join him reciting the Pledge of Allegiance. B. Council Clerk Reads the Call of the Meeting and Mayor declares call a legal call and meeting a legal meeting The Clerk of the Common Council reads the Call of the Meeting and the Chair declares the call a legal call and the meeting a legal meeting. 3. Questions & Answers re: Freedom of Information Act The Chair states that Attorney Kori Wisneski will be presenting to the Council this evening. The first presentation is on the Freedom of Information Act (FOIA When that presentation is completed, there will be a presentation on the City’s Code of Ethics followed by questions that anyone may have, The Chair turns the meeting over to Attorney Wisneski. Attorney Wisneski states that they will first speak to the Freedom of Information Act The act promotes government transparency through open meetings and public records. The two (2) main parts of the act address meetings and public documents.  Executive sessions allow limited exclusion of the public for specific reasons.  Agencies must maintain minutes for all meetings, detailing attendance and votes.  Clarified that requests are handled within business days according to City policy.  Town Clerk efficiently manages and acknowledges incoming requests.  Freedom of Information requests primarily go directly to the relevant departments. January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 2 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 3 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 4 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 5 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 6 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 7 WORKSHOP – FOIA and CITY CODE OF ETHICS January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 8 WORKSHOP – FOIA and CITY CODE OF ETHICS  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 9 WORKSHOP – FOIA and CITY CODE OF ETHICS  Ethics board ensures public officials adhere to standards of conduct and avoid conflicts of interest.  Confidentiality is crucial in handling complaints and advisory opinions within the ethics process.  Amendments to meeting agendas require a minimum of nine affirmative votes in Middletown. Atty. Wisneski: The Freedom of Information act is in the State statues beginning at Section 1-200 The Councilmembers have a full copy of the entire act and I did also provide you with a copy of Chapter 40 of the Middletown Code of Ordinances, which is our Ethics Code. Just a little history: the Freedom of Information Act (FOIA) was, was enacted in 1975, and brought forward by Governor Ella Grasso. This was on the heels of Watergate, so it was unanimously approval by the State legislature to make sure that there was transparency in government. As a City, we are all responsible for complying with all sections of FOIA. As elected officials, the section pertaining to meetings might be most important to you, but is also important to understand our obligations with public records and documents. In the course of your tenure as a public official, you may receive, or our office may receive and forward to you, requests for documents, which are subject to FOIA  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 10 WORKSHOP – FOIA and CITY CODE OF ETHICS FOIA consists of two (2) two major parts: meetings and documents. Tonight, we will talk in detail about both of those things. FOIA is enforced by the Freedom of Information Commission in Hartford. Any person, who claims that there has been a violation of the rights under this Act has the ability to file a complaint within 30 days of that violation. That complaint goes to Hartford. Typically when a complaint is filed, there's a mediation, with an ombudsman, who will try to mediate the matter between both parties. If that doesn't resolve the matter, it goes to a hearing. If there is a secret, or meeting that's not properly noticed, the complaint must be filed within 30 days of when the person becomes aware, or has constructive notice, of that meeting. There are two (2) major areas, but three (3) concepts that I want us to all be aware of. FOI applies to public meetings. There's a requirement that all meetings of a public agency -- like the Common Council, like our boards and commissions, commissions, like our Board of Ethics, like our library board -- should be open to the public. The meeting should be noticed. There should be minutes summarizing the meetings that are held in open session In addition, we're going to talk about executive sessions. Executive Sessions are parts of meetings where you can exclude the public for very limited reasons as set forth in Section 1-200, Subsection 6. It defines the five (5) reasons that you can exclude the public at a meeting to discuss certain things. We're going to go over those details in detail. In addition, like I said, for you, it applies to public records. There’s a very broad definition within FOIA at 1-200, Subsection 5. I'll read that later, but in, in essence, all records are files that are in our possession as a municipality, which really in any way to the conduct of that agency's business, are presumed to be public and are subject to request from the public for information. When somebody makes a demand for documents, those copies should be provided to individuals. They'll have to pay for those documents unless the request of materials fall within an exemption. Those exemptions are throughout FOIA, but largely under 1-210B. It's really important to understand that the FOIA does not require you to create documents. It only requires you to produce documents that are in your possession and that exist. It also is not a question and answer statute. So you don't need to, if an individual's asking questions and saying that that's subject to FOIA, it's not. I will produce documents on any particular subject that you have questions about, but if no document exists, I would respond “no such document exists.” Obviously, in our roles as public officials, there's back and forth with the public, so you have to figure out if a question and answer is appropriate, or if certain responses as if it doesn't apply is more appropriate, A “meeting” is defined as any hearing or other proceeding of a public agency discuss or act upon a matter over which an agency has supervision, controlled jurisdiction, or advisory power. It's important to note that both subcommittees are also subject to FOIA. If you have a Public Works Commission, and then they make a subcommittee dealing with the Recreation Department, that actually also has to be subject to public meetings and meetings noticed appropriately, etc. When you have a meeting, there are certain requirements as to what you need to do in terms of setting the meeting. I will say that, when in doubt, it probably is a meeting. You have to be careful about that. We are going to about some of the pitfalls when you have electronic documentation, etc. There are some exceptions which are set forth right in the beginning of FOIA. I'm going to go through those. A meeting for a personnel search committee for executive level employment candidates is not considered a meeting. It does not need to be noticed. The best example of this is when you hire a superintendent. A lot of times,  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 11 WORKSHOP – FOIA and CITY CODE OF ETHICS they bring in the entire board and they have, they'll have what they call a “non- meeting.” So it's a meeting that does not need to be noticed as a public meeting under this statue. Any chance or social meeting that's neither planned nor intended for purposes of discussing matters before that committee is not considered a meeting. For example, if you have nine (9) members of the Common Council appear at a ribbing cutting, just because those nine (9) members are appearing at that ribbon cutting does not mean that constitutes meeting, If those nine (9) members were to go somewhere and talk about business related to what's on their agendas, then that would constitute a meeting and should be properly noticed. In addition, any strategy or negotiations with respect to collective bargaining does not constitute a meeting. Caucuses of members of the same political party. Each of our Democrats and Republicans have caucus meetings. Those are not subject to FOIA do not need to be noticed, administrative or staff meetings. Member public agency and finally communication limited to notice of meetings of any public agencies or agendas and that really is when you send out a meeting notice to all of your commission members that doesn't constitute a meeting and, and falls within that exemption. There are three main types of meetings under FOIA: regular meeting, special meeting, and an emergency meeting. The most typical meetings that we deal with day-to-day are regular meetings and special meetings. Emergency meetings should not be used unless there is a bona fide emergency. I'm not talking about, “I failed to file my notice and agenda within the twenty- four hours, and this is something that needs to be heard.” That's not going to be considered an emergency. In training with FOIC on this, they've used the extreme example of the Sandy Hook tragedy. They had a meeting as a result of that tragedy the day that they needed to have it. It couldn’t wait 24- hours. Back to regular meetings: these are meetings that are scheduled in advanced. Typically as you all know, I think a lot of our commissions have met in December or January and tried to establish their meeting calendar for the next calendar year. Pursuant to FOIA, you have to establish a regular calendar before January 31st each year and file that calendar with the Town Clerk. Once you establish that calendar -- saying where it's going to be held when it's going to be held -- you have that on file with the town clerk. Those constitute your regular meetings and that's important because there's some very big differences between an agenda for a special meeting and agenda for regular meeting. Special meetings are any meetings that are not regular meetings. For instance, and I'll use an example from General Counsel Commission, a lot of times General Counsel Commission overlaps, or has a conflict with your Community Meeting in those circumstances. We'll cancel our regular meeting and we'll schedule a special meeting for another day that month to hear our business. When you do that, there's strict both notice and posting requirements that we have to comply with. We’re going to talk a little bit about that. And, again, emergency special meetings: those are really called on short notice to deal with critical problems that cannot wait that 24-hours to be heard. Again, we're talking tragedy. We're talking true, true emergency. Now we're going to talk about posting requirements for each of these meetings. Like I said, the annual scheduled regular meetings has to be filed with town clerk not later than January 31st of each year. If you fail to file your regular meetings by that date, then our advice out of our office is that you do your meetings all special meetings. That's possible. It’s just that you need to know that they're all going to be special meetings. You have to comply with those posting requirements and also the agenda requirements. At a regular meeting, a written agenda of the items to be discussed at a regular meeting must be available to the public and filed, again, not less than 24-hours before the meeting. They have to be available in the town clerk’s office. It does not specifically require that the written agendas be posted, but our practice is to file all notices, agendas, and minutes in the town clerk’s office. The reason for that is when I first came to work for the City, we had . . . the rule really is, is that you can keep the minutes in your office as long as they're accessible to the public. The problem is, once somebody leaves, so does their brain trust. So, if I leave, and I don't tell the next person, “Well, all of my minutes are here,” nobody's going to know where they are. They may be in storage. It could take a long time to find them. The best way to do it, and that's what we decided to do and send out kind of our policy, you should be that you should be filing these in the town clerk. The town clerk is your keeper of the records for the City of Middletown, and so any notices, agendas, and minutes really should be on file. It's just a, it's just a good routine to get into. Now with respect to regular meetings, and this is different than special meetings, you are able to amend the agenda. So, if you have an agenda that's written and you get together as a group and decide that there's an item that's not on there that you want to be on there for regular meeting, a two-thirds vote of those present and voting can add an item to an agenda. That's wholly proper and is done all the time. That cannot be done at a special meeting. We'll talk about that. Like I said, action to be taken as special meeting, it's strictly limited to the item stated on the notice of the special meeting. No other business or items may be addressed. The notice of each special meeting requires the following steps. You have to prepare a written notice setting for the time date in place of the special meeting and specifying the business that is going to be transacted. That notice of the special meeting has to be posted in the town clerk’s office, at least twenty-four hours prior to the time of the meeting and must be posted online that's important. That's really the only time that's required when you have a special meeting.  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 12 WORKSHOP – FOIA and CITY CODE OF ETHICS Again, emergency meetings we use sparingly. If you cannot post an agenda within a 24-hours in advance, and need to deal with something immediately, there's really no specifically requirements for noticing that because really you're having that without the proper notice. It's recommended that you attempt to reach out to each member by telephone and written notice of that meeting is immediately posted when you can in the town clerk’s office and the public agency's office, may be in the Mayor's office. It's also recommended that a written notice of the emergency special meeting be delivered to the home of each of that agency's members. The law requires that a copy of the minutes of every emergency special meeting filed with the town clerk within 72 hours of the meeting and that these minutes must set forth the nature of the emergency, which prompted the meeting and the proceedings, which occurred at the meeting session. Executive session, like I said, is the part of a meeting where you can exclude the public and there's limited reasons for doing that. It is set forth in (Conn. Gen. Stat.) 1-206. For those people who had my prior version, I think I had a typo. Thank you, Councilwoman Blackwell when we talked through it, she noticed that. So it's 1-206 and that second bullet. I'm going to bring that up so there's a couple reasons. Like I said, there are five (5) reasons for executive session:  discussion concerning appointment, employment performance, evaluation, health, or dismissal of a public official or employee;  strategy and negotiations with respect to pending claims or pending litigation;  matters concerning security;  to discuss the selection of a site or a lease, sale, or purchase of real property, if you think that that's going to have an adverse effect on the price; and  discussion of any matter which would result in disclosure of public record or the information contained therein described in subsection B of 1-201, which means exempt records. Executive session has to be on an agenda and have specificity as to why you're going in. So you really should be citing to the provision that I just read on each agenda, and then the discussion in the executive session should be confidential and not open to the public. There are no motions in that executive session nor any votes. Minutes are required for each and every meeting that you have each agency must keep maintain and make records of each meeting. The minutes should indicate who is present what votes were who voted for what. Those have to be in the town clerk’s office within seven days, unless it's an emergency meeting as we talked about. A lot of people think that the minutes need to be verbatim of what happened, and that's not accurate. It really just needs to be who is present what the votes were and who voted for what. Now it's important to note -- and I say this a lot -- that your committees and commissions really speak through their motions. Individual members of the public agency do not have authority in and of themselves. Even if you're a chair of a commission, that doesn't mean that you speak for the commission. Your authority really comes from the quorum of the public agency and a properly notice meeting. So remote and hybrid meetings: this became really important and, obviously, in 2020 during COVID and it was codified in 2021. We are now allowed to have remote, hybrid, or regular in-person meetings. Connecticut General Statutes 1-225 permits this and sets forth all of the rules. Staff has to provide at least 48-hour notice to members of the public agency if they're conducting the meeting electronically, either hybrid or remote. These agendas must be filed at least 24-hours in advance like a regular meeting would. It's really important that, if you have a fully remote or hybrid meeting, that members of the public are given the same opportunity to speak as they would in-person. We do this all the time where people, who have their hand raised and who are on an electronic meeting, get the same ability to speak for the 5-minutes or whatever the minutes are as the people who are in Chamber. If the meeting is remote or hybrid, I think it's important for elected officials to make every effort to show themselves and especially to make sure that their votes are heard because FOIA does require, in particular, that you actually identified your name and how you're voting. Typically it's just really important now to understand who's voting for what, in your minutes. So you need to understand and see how people are voting. If you can uncover your face, or at least speak orally. If you can't be shown, you should say your name and your vote: yes or no. Next is public records. We are clearly doing the work of our community -- the people's business -- and so our documents are releasable to the public unless they fit within an exemption. Like I said, public records are files and have a very broad definition and that's under (Conn. Gen Stat. 1-)205. It means under the Act and the recorded data or information relating to the conduct of the public's a business prepared, owned, used, received, or retained by a public agency, whether such data information be handwritten, typed, tape recorded, videotaped, printed, photostatic, photographed, or recorded. Any other method. So the act really hasn't caught up technology wise, but if you have a voicemail, that's considered a public document, if you have an email, that's considered a public document and would be subject to these to these rules. I do want to give a cautionary tale and that's about email. I know the Council has City issued email. Some of the commissions do. It's based on whether you have budgetary -- I think -- oversight, and that's a policy out of the IT  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 13 WORKSHOP – FOIA and CITY CODE OF ETHICS department, but please note that, if you were doing business, even if you have City email, if you are doing business on private email, that is subject to FOIA. So, any email that you write that pertains to business that you do for the City is FOI-able. We have had FOI requests previously where this has come into play. We've had commissions where have someone from the public has asked for any and all emails, including private emails pertaining to X issue. So I had to meet with each individual commissioner and explain that I had to gather records review them, see if there was any exemptions, and produce them. The hope is that, where possible, we don't do that. If you have a City of Middletown issued email, you should be using that exclusively. So what do you do if you receive a request as a commissioner or as a councilmember? Typically, we have a policy here for the City of Middletown of how to respond to an FOIA request and the best way to do it is to alert, probably my office and the town clerk's office, that you've received this request. We have an obligation, under the act, to respond within four (4) business days, and that's not providing the documents, but rather, acknowledging receipt of the request. When you do that, I kind of have form language that I use, you know, “Thank you for your email. This is acknowledgment of your FOI request. Non- exempt documents will be provided at the statutory rate.” So that's the first step again, you do not create any documents. You're only looking for documents that exist in the topic that's requested. We have an obligation to provide documents within a reasonable time frame. Once we do that 4-day notice, reasonable is not to find under the statue, it really depends on the circumstances of the request, which could include the staffing in the office, you know, a two-person office and, you know, you have a big event next week. It's going to be something that's going to come after. The magnitude of the request, you know, is somebody asking for one-page or is somebody asking for, you know, five 500 makes a difference. And also the workload of the responding employee, so it could mean a week, it could mean a day. It could mean months, it really depends on those circumstances, and that would be something if somebody said, well, you know, you have this in months, and we go up to the FOIA Commission. That would be the kind of testimony that I would elicit, you know what, when did you receive this? What was going on in your office? What, what steps did you take to respond to it? So it really is circumstantial and factual we are allowed to charge 50-cents a page for all FOI requests. If they wanted certified, the first page is a dollar, and everything thereafter is fifty cents. If they want it via CD-ROM or something like that, we would charge for whatever the CD ROM costs. There are also limited circumstances where we can charge an amount equal to, attributed to, the agency employee engaged in providing the requested data, if formatting or programming is necessary. Now this is not the same as the hours of work it takes to compile the documents. That's totally separate, and if there are a lot of documents and something more than ten dollars of requested documents, we can ask for the individual to pay in advance. You do an estimate of how many documents. Five hundred documents you only fifty cents. Once I receive that, I will go through it and provide it to you. It's important to also know that, like I said, before you don't produce documents that are exempt from FOIA. If you have questions about that, if you think something is privileged, attorney/client privilege, if you think something falls within 1-210, you would call our office and we could help you through that. Some examples of things that are exemptions, preliminary drafts, personnel, or medical files that would constitute an invasion of personal privacy. Certain law enforcement records pertaining to pending claims or litigation, test questions, scoring keys, or other exam examination data use for employment. There's a lot of other exemptions under 1-210. I encourage you to look at it. But those are kind of the most, the ones we've used most often that come into play. Okay, we're going to talk a little bit about social media pitfalls. Again, the law hasn't quite caught up to where we are technologically, but is important to note that, and to just recognize that, a lot of people are on social media. People have blogs. People are out there, right, in the technology world. And so, you want to be careful and understand that some of your social media posts or comments really is just another form of electronic communication and would likely be considered to be public records that would both be subject to FOIA as well as our retention laws under the State of Connecticut. If those posting comments deal with things that pertain to the City business that you work on, and so elected officials really need to be cognizant that their social media profiles and blogs may be subject to FOIA retention laws, if they're discussing business that falls under their jurisdiction and power as a Councilmember or commissioner, etc. I always use this example of email. So electronic communication between a quorum of Councilmembers or commissioners pertaining to the business, that commission or Council is going to be hearing could constitute a meeting. So it's kind of a gathering of say it's nine (9) -- whatever -- has to be members talking about business. That should be an open meeting, right? Should be part of the public and so you have to be careful that the things that you're engaging along electronically are not going to be considered to be a “secret meeting,” and so you really want to be careful about that. So that is what I have for FOIA. I think that we have questions before I move on to ethics. Questions from Councilmembers and Other Public Officials: Councilwoman Blackwell: My question pertains to the 4-day rule. Is it business or calendar days? It's not really indicated. Atty. Wisneski: I said business because that's what came in my mind. That's a good question. It's business days because that's in our policy. It is business. I will say, I always do it immediately because, if I don't, I'm going to forget about it. So the best way to do it is: you get it and you acknowledge it. I will say that our Town Clerk is really, really good at this. A lot of our requests go to the Town Clerk, and what she'll do is she'll immediately respond, acknowledge it, and either send it on to the department or copy the department that needs to respond and say, “Please respond within your time frame.” So that's my suggestion. It is four (4) for business days, but I would suggest doing it as soon as soon as you can so you don't forget about it. That's where we get into trouble. Councilwoman Blackwell: As it relates to individuals receiving the direct request, not all requests are required to go through your office. Can you elaborate on that please?  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 14 WORKSHOP – FOIA and CITY CODE OF ETHICS Atty. Wisneski: Yes, so we do have - and I could talk a little bit about this -- we have a City of Middletown Procedures for Responding to Freedom of Information Requests. It walks you through a lot of what I said today about if something comes in, where does it go? Most of the FOIA requests go to the department itself. So, if Public Works is getting a request about something going on at one of its facilities, then it would go directly to them, and if they have questions about an exemption, then they would come to my office. But otherwise they would handle it themselves and alert the Town Clerk's office that it's finalized. If it pertains to pending or possible litigation, if it originates from an attorney or an attorney's office, if it's request from the media request pertaining to employees or a request requiring advice on possible exclusions, exemptions, or exception, then they must be forwarded to our office along with a copy to Town Clerk. That's just through our policy. We also have an indigence policy and I'll just mention this because I think it's important. There is an exception to the fifty cents per page, and that's if you fall within our indigenous policy when, whether you have enough money to pay, and there's one for the general public, and then there's one actually for individuals, who are incarcerated. I'm not going to go through the details of that, but we do have guidelines to follow that have been upheld at the Freedom of Information Commission. Councilwoman Blackwell: Got it. Thank you. And one last question. You indicated in your presentation that the law has not caught up with social media and I appreciate this slide. I think on the State level, as well municipalities, there are challenges with respect to social media. I, personally, am not on Facebook. I have certainly received some screenshots of folks, who are on Facebook and so I guess what I would want to know is what's enforceable or not. Can you expand on that? And I really do appreciate this particular slide because it is new, right? Att. Wisneski” So I think it's, in my mind, we have not been tested on that yet. Frankly, but we always put out that cautionary tale that you should be concerned about that. Same thing with retention laws. So if you're putting out things that are part that are part of your business is a councilperson on social media, query whether you should be keeping those things in connection with our State library laws and retention. So deleting certain posts could be problematic, and if people see them, they take a screenshot, and they ask you for it, and you say I don't have it, well, then they may make a complaint with the State library or they make a complaint with the Freedom of Information Commission. So time will tell, but these are just things that we're, we're concerned about given, you know, where we are with FOIA and what's come with technology. Councilwoman Blackwell: Excellent, thank you. The Chair: Any other questions online or in the Council Chamber? Okay, go ahead. Yes, please, oh. PZC Commissioner Sebastian Giuliano: Good evening. I have two (2) questions. One is having to do with agendas on special meetings and the other is having to do with requests made to the keeper of the record. First the agenda and run social media, unless the City's Charter has changed, I think, for the Common Council, amending an agenda for a special meeting must be by nine (9) affirmative votes. So there's a special rule in Middletown that, if you've called a special Council meeting, and you want to add something to the agenda, it requires nine (9) votes to do that. So, if less than nine (9) people . . . of a special meeting, or any meeting actually -- amending an agenda in any meeting -- requires nine (9) votes. You can't amend an agenda in a special meeting, but if you have a meeting and there is a quorum, but there are less than nine (9) councilpersons here, then you can't amend the agenda at all because it's not two-thirds of members present voting. It's nine (9) affirmative votes to amend an agenda. The other question is a little flakier, and that is: even though the Town Clerk is designated as the keeper of all records, clearly, the Town Clerk is not the exclusive keeper of all records. There are records that the Town Clerk does not even keep that other people do keep. Is the City a strict interpreter of that of that because I think the Act says you have to serve, you have to make the request to the keeper of a record. So does the City interpret that strictly, or does the City say if you make a request for a record to the Town Clerk, we know it might be a record that's not in the Town Clerk’s keeping, but we'll get that to where it's supposed to go, or sorry, you didn't brush your fingers and say, mother may I the right way. You haven't made a proper request. What is the City’s approach to that? Is it broad and say we're going to accept the request, or you got to do it exactly the right way? Atty. Wisneski: Thanks, I'm going to take the second question first. Our approach really is we're pretty lax with it. So if the Town Clerk gets it -- and she often does -- she will copy whomever is supposed to be getting the documents. So we don't say, sorry, not us. As to the first issue, I'd have to look into that. I don't know if it's been changed, to be honest, but I'm talking about commissions. It's two-thirds present and voting to change. Unidentified speaker: (Inaudible) Atty. Wisneski: Right. The Chair: Other questions from Council Chamber, or I don't see any hands up online. Go ahead. Anne Percival: My question is, if I am participating in an executive session, and I take notes for myself, is that a note that can be requested. Atty. Wisneski: That's a good question. I wouldn't do that. I really wouldn't. It could be, and you really don't want to create documents. The Chair: Yes, Rebecca. You have to come up, please. Also, you have to identify yourself for the record.  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 15 WORKSHOP – FOIA and CITY CODE OF ETHICS Board of Assessment Appeals Rebecca MacLachlan: Kind of related to making notes for one self during a meeting or other things, someone has mentioned to us on the Board of Assessment Appeals that, especially during our hearings, we should not even have our cell phones in our possession, that they should be set aside because of the potential of having any interaction with your phone. Does that sound like a reasonable idea to you? I mean, obviously, it's doable with a little personal discipline. Atty. Wisneski: I don't think that's a FOIA issue so I don't know why they're saying that, but probably because they want you to be focused fully on that person who is there. The Chair: Other questions? Anyone on the dais? I have one, but I will wait. Councilwoman Blackwell. Councilwoman Jeanette Blackwell: Back to the executive session. You did indicate there are no motions in executive session, no votes. Would you just talk a little bit about that because I've been a participant of the executive sessions. If you could elaborate. Atty. Wisneski: Really it should be for the discussion. The discussion is for the item that is set forth on your agenda. There should be no motions taken within executive session. Any motions on items discussed in executive session have to happen when you come back out. Does that answer your question? Councilwoman Blackwell: Yes, thank you. The Chair: I see that our Council Clerk has her hand up. Clerk of the Common Council: Yes, thank you. I'm wondering, Councilman Nocera, if it would be a good idea to let the new Councilmembers know that they are 0 – that the Common Council is -- a party to an FOI case that's ongoing. Actually, former Councilman Giuliano is the first named party in that case. The case has gone from FOI Commission through Superior Court to the Appellate Court, and has been remanded to FOI. It has been kicking around for about six (6) years. I don't know if . . . The Chair: That is really not relevant to tonight. Clerk of the Common Council: Okay. The Chair: Any other questions in the Chamber? On the dais? I don't see any. Thank you, Attorney Wisneski. We will move on to the Code of Ethics. Do you want to take a short break? Let's take a five minute break. Thank you. _____________________________________ RECESS – The Common Council breaks for a 5-minute recess at 7:20 PM. MEETING RECONVENES – The Common Council meeting reconvenes at 7:32 PM.  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 16 WORKSHOP – FOIA and CITY CODE OF ETHICS 4. Review of City of Middletown Code of Ethics January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 17 WORKSHOP – FOIA and CITY CODE OF ETHICS  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 18 WORKSHOP – FOIA and CITY CODE OF ETHICS 5. Questions & Answers re: City of Middletown Code of Ethics The Chair: Thank you. Alright, Attorney Wisneski, we're ready for the review of the City of Middletown Code of Ethics followed by questions and answers. Atty. Wisneski: Great, thank you. As I stated before, Chapter 40 of the Middletown Code of Ethics is our ethics code. I think it's important to start with the declaration of policy because it really does give you an overview and a baseline of why we have these rules. Section 41-1. The proper operation of the city government requires that public officials and employees be independent impartial and responsible that government policies and decisions be made in the proper channels of governmental structure that public office and employment not be used for personal gain and that the public have confidence in the integrity of its government. The purposes of this code of ethics are to set forth standards of ethical conduct to assist public officials and employees and establishing guidelines for their conduct and to foster the development and maintenance of a tradition of responsible and effective public service. We have an Ethics Board here in the City of Middletown under our ordinances. There are five (5) regular members and two (2) alternate members. Our current board is made up of John Shaw, Gregory, Harris, Stanley Sadinski, and Sarah Steinfeld. The staff to the Ethics Board is Kristen Holden, who is in the Office of General Counsel. She is the Insurance and Benefits Coordinator. We are looking to fill vacancies. My understanding is that there is a member here, will be up for appointment on your February agenda. If that passes, then we need two (2) more members and both need to be Republicans or unaffiliated. We'd love to have this board fully functional and all the vacancies filled. So that's great. So the members are appointed by the Mayor and confirmed by the Council. Because of minority representation, you can't have more than three (3) regular members and one (1) alternate of the same political party. They have staggered terms of five (5) years and they have some more substantial requirements than some of our other boards and commissions. They have to be electors of the City, which is typical. They must be known for personal integrity and sound judgment. Board members cannot be City employees or officials and cannot be on executive boards of any political parties. They cannot have claims pending against the City or any contractual relationship with the City. That's important to be kind of separate and unbiased. There are really three (3) main powers that the Board of Ethics has. One, they give advisory opinions on proposed action when requested to do so by official or employee. They investigate and hear complaints about allegations of unethical conducts by employees or officials and they render their opinion on those, and then they make recommendations to the Common Council, where appropriate, for changes to the Ethics Code. With respect to advisory opinions, employees or elected officials, continue advisory opinions from this board. To do so the elected official or employee must consult with the employee’s director, other supervisory authority before doing so. The request must be made in writing on a form that's prescribed by the Board and signed by the official or employee. They must have all relevant facts stated in that form and the Board may follow up with further requests, if needed. In order to issue an opinion on an advisory nature. Three (3) members have to concur or agree on the advice before the Board can issue a decision. Sometimes we get calls in our office on ethics issues and I will lead them to the Ethics Board, you know what, if I'm doing this, outside of my work, is that construed to be a violation of ethics? Well, I am not the “be all and end all” of ethics. That is actually the Ethics Board’s job. You can seek an advisory opinion if you and put it in your personnel file. If people have questions about complaints -- and I'll talk about that next -- I lead them to the complete form and then leave it at that. The second thing that the Ethics Board does is they investigate complaints. So any person, whether from the public or internally here at City Hall, can file a complaint with the Board on a form that's prescribed by the Board that form is, can be found online. The Ethics Board does have, on our website, a tab. The complaint must be signed by the complainant under penalty of a false statement state. The name of the person accusing the specific acts alleged to constitute the violation. This is required. If you don't have that, it'll be rejected. It also has to include an acknowledgment that the complaint and its contents are confidential, and will be confidential unless or until the board makes a finding of probable cause, or the respondent says I want this to be made public and be in a public setting. If it isn't confidential, that's another reason it can be rejected if it's not kept confidential. It's important if you look at -- and I gave it to the Council, but you can find it online – Section 40-1 to 40-8 is really the meat and potatoes of the Ethics Ordinance and that deals with standards of conduct use of City resources, conflicts of interest, confidential information, and gifts, gratuities, or favors. Officials -- whether you're elected or appointed – this applies to you. It also applies to employees. They must be independent, impartial, moral, honest, fair, professional, courteous and responsible, and discharging their duties. As we all know our work for public service is really for the public and not for personal, and so there should be no special treatments, no gifts succeeding fifty dollars ($50), and you should not be using your power to improperly influence officials or employees as doing so could be considered as a violation of our ethics ordinance. You must keep confidential information confidential at all times. That's very important, and that's under Section 40-7 of the ordinance. You must recuse yourself if you have a financial interest or over fifty dollars ($50) or personal interest, whether it's family or business in the matter before you. It's important if something is coming before you in your role as a commissioner or a councilmember or board member, and for some reason whatever's in front of, you might benefit your spouse or a family member, you should be saying why you're accusing yourself and recusing yourself. And those, like I said, those financial interests and personal interests don't have to be to you. It can also be to a spouse.  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 19 WORKSHOP – FOIA and CITY CODE OF ETHICS There's some definitions that are important in the definition section: family, spouse, parent, children, siblings and their spouses or children. So you want to be concerned about that and make sure, that if something's coming up that you feel too close of a connection to you kind of read over these rules and recuse yourself, if you feel it's proper. Again, be cognizant of conflicts of interest, you want to avoid them disclose them on the record and recuse them recuse yourself entirely from acting as a councilmember or matters before the Council in which you have a conflict or were there could be an appearance of impropriety. If there's a contract before you and, and there's a change in the collective bargaining agreement and it might pertain to you, that's something that you need to evaluate whether you should be voting on that or not. That could be construed as a conflict of interest. So that's really all I have for our ethics. I'm happy to answer whatever questions people have. The Chair: Okay, thank you questions. Let's see, oh, it's one out fast. We'll start with Councilman Kovach. Councilman Steven Kovach: So I have two (2) questions, maybe three (3). Are these meetings, are they public or are they closed meetings? Atty. Wisneski: They're closed until they're open. So the first session is closed. There's a discussion about the matter whether it reaches -- I’m trying to think of the standard – probable cause. If they make a finding a probable cause, then it's opened up and there's a whole process that set forth in these rules in Chapter 40 that talks about kind of the hearings and what happens. Councilman Kovach: Can you FOIA any of the information in that closed hearing? Atty. Wisneski: That's a good question, and I've never had it come up. Councilman Kovach: And then my third question is, on slide #20, you have said that, before requesting an opinion, the elected official or employee must consult with the employees director or other supervisory authority, and so when it comes to an elected official, what does that mean? Atty. Wisneski: I don't think you probably have that. It's more, so, you know, if, if I'm going to request an advisory opinion related to my job, maybe I want to work a job outside at night or something, and I think it could be, I want to make sure it's not a conflict. I'd go to Brig (General Counsel Smith) and just say, “I’d like to, I'm going to seek this and do that in the first instance.” You don't really have a supervisor, so it would just be you seeking that advisory opinion from the board. Councilman Kovach: What about other boards and commissions? Atty. Wisneski: Same thing. I'd have to look and see if there's any other guidance, but I really don't, I think that's more for employees. Councilman Kovach: Okay, thank you. The Chair: Councilwoman Blackwell. Councilwoman Jeanette Blackwell: Thank you, Mr. Chairman. Atty. Wisneski, I have two (2) questions. First question is slide #21 -- Middletown Code of Ethics. If an individual does not recuse themselves, what's the consequence or what's enforceable if an individual decide that, while there may be a conflict of interest, they just decide, they're not going to recuse themselves? Atty. Wisneski: It’s really is on, and that's that crosses over into like Robert's Rules, so it really is within the person's obligation to figure out if they're going to recuse themselves, I can't make somebody recuse themselves. If you fail to recuse yourself, and it is a conflict of interest, or a possible conflict of interest, somebody -- anybody from the public -- can make a filing with the Board of Ethics on that, and then the Board of Ethics does their thing and would evaluate whether or not it is Councilwoman Blackwell: So there, there aren't steps that can . . . Atty. Wisneski: People could file a complaint. Councilwoman Blackwell: Thank you. My second question is regarding the investigation of complaints. Is the conclusion of that investigation FOI-able? Atty. Wisneski: Yes, that's public. If you look at 40-15, there's a lot of different steps to it. There's going to be a hearing of oral evidence. The hearing is going to have a stenographer. They render findings in writing within thirty (30) days of the conclusion of the hearing. A copy of the findings will be sent to the complainant and the respondent and, if the Board's decision is that the complaint was justified, a copy of the decisions will be sent to the Mayor, Common Council, or other authority for action accordance with appropriate ordinance, Charter provision, or State statute. So, yes. Councilwoman Blackwell: I see that. Thank you.  January 25, 2024 COMMON COUNCIL – SPECIAL MEETING Page 20 WORKSHOP – FOIA and CITY CODE OF ETHICS The Chair: Members in our audience, who are on committees or commissions? Any questions? I don't see any hands up online. I have one question, it’s a holistic one, in terms of the authority of the Ethics Board once a finding is made? Is it just advisory? What's the authority behind it? Atty. Wisneski: So, I think what happens is they provide their authority to the Mayor to the Common Council or whoever is appropriate to make action. So, if an employee, for instance, is deemed to have violated ethics, then it would probably go to the Mayor for progressive discipline, and then if it's something like with respect to something that the Common Council would have authority over, it would go to you for action. I don't know if other authority means like police or, you know. The Chair: So a follow-up question, then: if the Board didn't particularly think that the action was sufficient, is there any recourse? They are essentially advisory and moving it on to action. Atty. Wisneski: Say that again. If they're, if they find what? The Chair: If they find, if they feel that the action that filed their position wasn't sufficient over or under. Atty. Wisneski: So if they forwarded to the Mayor and he didn't act on it appropriately. I don't think that they have anything further to do under these ordinances. The Chair: Thank you. Councilman Grady Faulkner: Through the Chair -- do we have submitted lists of conflicts of interest? I haven't heard. Atty. Wisneski: So I would look to 40-6. So, I won't read them, but I'll just read the first one. So no official employees shall engage in any employment or business, which conflicts with the proper discharge of his official duties. That's one conflict of interest. So it's, there are one, two, three . . . .there are six set fourth here they're not, you know, obviously, you would have facts that need to apply to them. So that's why the investigation is required by the Board. Do the allegations fit within the confines of these rules? Councilman Faulkner: Yeah, because, you know, few of us are committees that hand out grants so I'm used to being asked up, we need a list of interest conflicts. I heard that in the lot of years. Yeah, yeah, I see what you're saying. The Chair: Any other questions. I don't see any. Thank you to al in attendance. 6. Meeting adjourned There being no further discussion Councilwoman Blackwell moves to adjourn. Councilwoman Salafia seconds the motion. There being no discussion, the Chair calls for a voice vote. The notion is approve unanimously with 12 aye votes. (AYE: Councilmembers Blackwell, Faulkner, Ford, Gennaro, Kovach, Loffredo, Mangiafico, Nocera, Pulino, Salafia, Spatola, and Sweeney.) The matter is approved. The meeting is adjourned at 7:49 PM. ATTEST: LINDA S.K. REED, COMMON COUNCIL CLERK K: review/ minutes/ 2024 Jan 25 – workshop FOIA & Ethics – 25 Jan 2024