When FOI law goes wrong
In short, in this town of 63,000, the only two residents a minority selectman is forbidden from chatting with are either of the other two members of the board.
Two years ago, Sandy Litvack tried to approach his new role as a Greenwich selectman as he might have during his career as an attorney, which included a stint as general counsel for the Walt Disney Company. Sitting in on one of First Selectman Peter Tesei’s staff meetings seemed like a good place to start.
Litvack, who also held a post in the U.S. Justice Department, got a flash lesson in Freedom of Information law. He was (my words) kicked out of the meeting.
His presence would have put two of the three Board of Selectmen members in the same meeting. Any discussion between two of them on matters they supervise constitutes a quorum, and requires public notice.
Lesson No. 2 for Litvack, a Democrat, was that his two Republican colleagues could chat about issues and deem it a caucus.
“It’s a wellintentioned law, but is not practical in execution,” Litvack offers as rebuttal. “They could not get the benefit of my knowledge.”
In short, in this town of 63,000, the only two residents a minority selectman is forbidden from talking to (or emailing, etc.) about local concerns are either of the other two members of the board. It makes one appreciate the wisdom of the mayoral structure that cities such as Stamford enjoy. Even Darien’s model of a fivemember Board of Selectmen enables minority members to talk to each other.
Don’t expect changes in a board structure that’s pushing 400 years in New England. If Greenwich can’t see the wisdom of changing to a nongender specific name of the board, an overhaul is never going to happen.
The rebuff of Litvack wasn’t new. The first selectman race a decade ago made this year’s edition look genteel. Republican incumbent Peter Tesei defeated challenger Lin Lavery so soundly in 2009 that he knocked her right off the board. When Drew Marzullo replaced her as the lone Democrat, Lavery flagged him that he would not be able to attend department meetings.
Marzullo asked anyway. Tesei offered the practical response that if he welcomed one selectman, he would have to invite the other. In addition, such a summit would have to be opened to the public.
“Let’s call it what it is, though,” Marzullo says. “It’s political as well.”
Yes, it creates the scenario where the first selectman never has to face blowback from the opposing party outside of regular meetings. The players in this threecast play will all be replaced Dec. 1. After 12 years, Tesei chose not to seek reelection this round and will be succeeded by Republican Fred Camillo. Litvack was the odd selectperson (hey, I don’t need a law) out on Election Day. Republican Lauren Rabin and Democrat Jill Oberlander will complete the board.
As the runnerup for the top seat, Oberlander now assumes the role of third wheel after serving as chair of the powerful Board of Estimate and Taxation. “Jill’s power has probably diminished by 90 percent,” Marzullo estimates.
As much as I champion transparency, this feels misguided. In the beginning of my career, I was interviewing a Board of Education member in New Jersey who foolishly started getting chatty about discussing board business with several fellow members at a beach house in the Hamptons. I didn’t know much about Sunshine Laws then, but they seemed to know less. They called it a retreat. I called it a quorum and busted them for violating the law.
In Connecticut’s case, it seems counterproductive. The framers of this New England political structure could not have designed a better roadblock to bipartisanship. So I again reached out to a state Freedom of Information expert.
Tom Hennick, the FOI Commission’s public information officer, listened patiently as I described the Greenwich situation. I kept waiting for him to jump in, sensing that he — as usual — had sage knowledge to share.
He finally spoke, promising a punchline. I didn’t know I had set up a joke. He didn’t disappoint.
Two years ago, Hennick explained, he was elected to the Board of Selectmen in Durham as a Democrat. He was the minority member, “so I speak from experience” about the frustrations of being shunned from informal policy discussions.
George Eames, the Republican selectman, attempted to unseat threeterm First Selectman (they stick to the gender folly too) Laura Francis. Eames was forced to petition his way on the ballot as an unaffiliated candidate. He lost to Francis, but kept a spot on the board. The other Republican selectman candidate, John Szewczyk, knocked off Hennick.
And there’s Hennick’s punchline. The Durham Board of Selectman now consists of three Republicans.
Hennick maintains, though, that there is wiggle room in the law. If Oberlander wanted to check facts with Camillo about the Greenwich train station project, for example, that would be OK. On the other hand, Camillo and Rabin (the Republicans) could not invite a third person from another municipal office into their conversation, regardless of political party. Of course, the most civil and democratic thing to do would be for majority selectmen not to caucus. They best serve the citizenry by talking policy in public meetings.
I have a punchline of my own. If Hennick won his race, the board would consist of a Republican, a Democrat and an unaffiliated member.
Then no one could talk to each other.