Emails get East Hampton Town Council in hot water, again

Another agenda item on the Sept. 8 Special Town Council meeting, that is of interest to residents who have been monitoring the Town Council’s actions, concerns the choice of an attorney to review the legality of an amended ordinance to restructure the East Hampton Police Department.

4.    Ratification of engagement of Atty.  John Bennet for review of proposed language for Town Ordinance #109.

The online discussion leading up to the choice of Atty. John Bennet is now the subject of a Freedom of Information (FOI) complaint that accuses the Town Council of holding the equivalent of a secret meeting.

The emails in question involve all Town Council members, and Town Atty. Jean D’Aquila, and were sent on Aug. 25, 26 and 27, 2010.

The complaint filed by Mary Ann Dostaler was acknowledged today by the Freedom of Information Commission. It is assigned docket no. 2010-547. A notice of the complaint has not been sent yet to the Town Council.

What constitutes a “meeting”?

There are rules having to do with conducting government business in the open – with certain exceptions, such as negotiating a land purchase or addressing a specific employee’s job.

The rules cover discussions – especially when a decision is reached – that take place between a quorum of an elected body, whether it’s at a member’s house, by phone calls or via emails.

In this case, there was no formal vote taken. Council Chair Melissa Engel asked council members for feedback on a recommendation made by Town Attorney Jean D’Aquila.

However, the FOI Commission will have to determine whether the council members held a “secret” meeting in order to discuss a vote that would later be conducted in public.

The email discussion stems from the last Special Town Council meeting on Aug. 16, which was postponed at the request of council member Thom Cordeiro.

Cordeiro said he wants other legal opinions, in addition to Atty. Mark Sommaruga’s, that the amended ordinance that will restructure the East Hampton Police Department is legal.

Some town residents, and council member Weintraub, have said there are a dozen or more ordinances and other sections of East Hampton’s Town Charter that prohibit eliminating the requirement that the town have a chief of police – at least, in this manner.

Letter to FOI Commission

Dostaler’s letter to the Connecticut Freedom of Information Commission states:

This letter constitutes a formal appeal to the Freedom of Information Commission. On Friday, August 27, 2010 members of the East Hampton Town Council held a meeting via email that was not properly noticed and was not accessible to the public.

Attached is the email thread of the discussion in which five of the members of Town Council participated. This discussion constitutes a meeting.

A decision by the Commission (#FIC 2009-333) concerning an unrelated FOI complaint against the Town of East Hampton ordered that the Town “shall strictly comply with the notice provisions of Sec. 1-225(d), G.S.”

As evidenced from this complaint, the Town continues to fail to meet the requirements of FOIA due to either ignorance of the law or willful intent. In filing this appeal, my aim is to bring the matter to light and hold the Town accountable to meet the requirements of FOIA.

Thank you for your consideration.

The email thread

Emails were sent to all council members. Responses are from 5 of the 7. John Tuttle and Bill Devine did not respond. Copies of the emails were sent to East Hampton Today by Sue Weintraub – who objected to the online discussion – and by Mary Ann Dostaler. [Note: I have removed the actual email addresses in these messages and replaced them with the name of the person.]

From: [Atty. Jean D'Aquila]

To: [Engel]

Sent: 8/25/2010 5:10:28 P.M. Eastern Daylight Time

Subj: RE: Town Council meeting

Melissa:  I am recommending the draft Ordinance prepared by Atty. Mark Sommaruga be reviewed by John Bennet of Gould Larson Bennet Wells and McDonnell in Essex.  Atty. Bennet has a lot of experience representing towns in Connecticut.  His firm currently represents a number of municipalities in southern Middlesex County.  Jean

On Aug 26, 2010, at 10:22 AM, [Melissa Engel] wrote:

Thursday  8/26/10

Council members,

Unless someone objects to this decision by the end of the day today, Atty. Bennet will begin his review tomorrow to have completed by our Sept. 15th meeting.

Thanks,

Melissa

In a message dated 8/26/2010 3:28:27 P.M. Eastern Daylight Time, [Sue Weintraub] writes:

We have other options than hiring yet another costly attorney. East Hampton pays for its membership with CCM which has attorneys and researchers to assist with these types of questions.

I contacted CCM earlier this week and asked for their assistance. They will research the legality of the proposed language for the revised Ordinance as it relates to our Town Charter, the other Town Ordinances and the State Statutes. Their response should be available by early next week.

Sue

On Fri, 8/27/10, [Melissa Engel] wrote:

Subject: Re: Jean D’Aquila’s recommendation

To: [Atty. D'Aquila]

[cc: Sue Weintraub, Barbara Moore, Thomas Cordeiro, Bill Devine, John Tuttle]

Date: Friday, August 27, 2010, 9:45 AM

Jean,

Would that be appropriate? [Melissa Engel]

In a message dated 8/27/2010 10:41:40 A.M. Eastern Daylight Time, [Barbara Moore] writes:

It is very important to me that when we go to the meeting on Sept 15, we are not wondering about the legality of what is being discussed.  This must be made clear to all of us before the meeting.  Barbara

From: [Thom Cordeiro]

To: [Barbara Moore, Sue Weintraub, Melissa Engel] [cc: Christopher Goff, Bill Devine, John Tuttle, Atty. Jean D'Aquila]

Sent: Fri, August 27, 2010 10:46:51 AM

Subject: Re: Jean D’Aquila’s recommendation

I agree Barbara.

Thom Cordeiro

From: [Christopher Goff]

Date: August 27, 2010 11:18:26 AM EDT

To:[ Thom Cordeiro, Barbara Moore, Melissa Engel, Bill Devine, John Tuttle, Atty. Jean D'Aquila]

Subject: Re: Jean D’Aquila’s recommendation

Good morning all,

I’m back from my mini vacation with the kids. Catching-up with e-mail’s. While it would be nice if CCM weighed in on the language, having legal opinion asap would be appropriate.

-Chris

On Aug 27, 2010, at 11:37 AM, [Melissa Engel] wrote:

All, I have asked jean to proceed with Atty. Bennet as I am not convinced that CCM can/will be able to offer such an opinion.  If they do than we will have two opinions (actually three) to ruminate over before the meeting on the 15th.

Melissa

Weintraub later writes to say that she objects to the way this decision was reached. The email follows, with Engel’s responses in bold type.

From: “Sue Weintraub”

To: [Melissa Engel] [cc: Barbara Moore, Christopher Goff, Thom Cordeiro, Bill Devine, John Tuttle, Jean D'Aquila]

1. CCM’s lawyers do not offer legal opinions. Their attorney will research the language of the revised Ordinance and present their findings. This is one of the services they provide to member municipalities across the state. [Weintraub]

Great! [Engel]

2. You cannot hold a meeting via email to decide which attorney to hire and how to proceed. At the very least a Special Meeting would need to be properly noticed and convened. [Weintraub]

There is no need to convene a meeting. The motion at the meeting of Monday Aug. 16th called for a postponement for 30 days in order for another attorney to review the ordinance language. It would follow that we would ask our Town Attorney to find us an attorney to do that and she has. I sent that name to Council members as a courtesy and acknowledgment of the task completed. [Engel]

The Town Council was the subject of a previous FOI complaint by Dostaler in which the commission advised the Town Council to adhere to proper procedures for notifying the public of meetings.

Mystery of missing emails

Another issue – this one a mystery – that will be part of the Town Manager’s legacy if he resigns or is fired, concerns an FOI request by the Courant for copies of O’Keefe’s sent emails.

It was because of this request that it was discovered that O’Keefe’s email account was configured not to save sent emails.

He maintains that he is not computer savvy and therefore doesn’t know why his office email system was set up in this manner.

Council member Weintraub attempted to retrieve these missing emails through an FOI request sent to the superintendent to download them from the school system’s server, which is the central hub for the town’s internet service.

The response to that request only raises more questions, especially given that the person with the answers recently died.

The response, from Superintendent Judith Golden, states that the computer consultant hired by the town in 2008 when O’Keefe began his new job “configured Mr. O’Keefe’s sent folder in Outlook so that all messages were automatically deleted and never saved into the sent folder.”

She writes:

“Unfortunately, the consultant whose name was Jason Fedash, did this work and we do not have any knowledge as to why that might be.”

“Mr. McMahon [the school system's network technician] shared with me that this is an abnormal install but since Jason recently passed away we are unable to ascertain what his thinking was when he did this on this account.”

“The result is that the sent items from Mr. O’Keefe’s Outlook account are not retrievable.”

“Obviously, work done by those who were not in our employ and for which we were not responsible prior to taking over the network for the entire town is not something we can correct in hindsight. We have however since having this brought to our attention, taken steps to ensure that this is corrected.”
Posted Sept. 7, 2010