A bevy of elected and appointed government officials went behind closed doors last week to discuss legal expenses connected to an order from state environmental regulators.
State law allows government officials to meet in nonpublic “executive sessions” in certain situations, such as when government officials are talking about legal strategy, or negotiations involving lawsuits.
But bills, including legal fees, are usually discussed in public, because it is the public’s money.
In this case, a lawyer hired by the city said a public discussion of expenses would have revealed legal strategies tied to a “pending claim” from the state Department of Energy and Environmental Protection (DEEP).
DEEP has a laundry list of complaints about Derby’s sewer system.
But Derby officials have already discussed their DEEP-related legal expenses in public, so the private pow-wow was unusual.
In addition, the officials themselves seemed unsure during their Tuesday Feb. 16 as to whether they could go into executive session.
How It Went Down
Here’s how Derby entered executive session:
A reporter asked why the discussion had to happen in private.
“It’s litigation,” Mayor Anita Dugatto said.
Thomas Welch, the city’s corporation counsel, then weighed in with a question of his own.
“If I can mayor, are we discussing the litigation or are we discussing just payment of the bills?” he asked.
“There is some litigation that really shouldn’t be …” the mayor said, before trailing off.
Alderman Barbara DeGennaro, a lawyer, said the meeting’s publicly available agenda spelled out the discussion.
“The agenda says legal expenses,” she said. “So my interpretation would be legal bills. Legal expenses. I’ll let corporation counsel give his opinion, but that’s what I thought we were talking about, according to the agenda.”
Then Gary O’Connor, a lawyer with Pullman & Comley, LLC, explained why he thought the public could not listen.
O’Connor and lawyer Jean Perry Phillips have been hired to deal with DEEP and the federal Environmental Protection Agency on Derby’s behalf.
“Mayor, my understanding is that we’re dealing with a number of outstanding claims against Derby and all this is kind of interconnected — our strategy on how we are going to deal with these claims by DEEP and by EPA as well as our bills,” O’Connor said.
O’Connor then connected his firm’s legal bills to the city’s litigation strategy.
“Our bills, you know, contain a lot of confidential information that is inter-related to the strategies we are setting forth and, under FOI, the Freedom of Information Act, it is permissible when you are discussing strategy as well as discussing expenses associated with it, to do that in executive session,” O’Connor said.
But DeGennaro pointed out the officials had not received any legal bills.
“With all due respect, we have no bills to look at,” she said.
The Valley Indy has previously reported Pullman and Comley charges Derby anywhere from $140 to $415 an hour. Legal bills are not exempt from public disclosure, according to state law.
The boards went into executive session nevertheless Feb. 16, with Alderman Art Gerckens the only public official objecting.
He said the agenda distributed to the public was not clear regarding the executive session topic.
Questionable?
Derby’s reason for the executive session was that the discussion of legal expenses would have revealed their strategy regarding DEEP’s “claim” against the city.
However, anyone in the hallway outside Tuesday’s executive session in the basement of Derby City Hall could hear part of what they were actually talking about — whether some of the $31 million voters approved for sewer system repairs in 2014 could be used instead to pay lawyers.
It is a topic previously discussed in public.
The officials also talked about communication problems they’ve been having with each other. Not invited into the private meeting — the Derby WPCA superintendent, and the Derby WPCA engineering firm.
In an interview after the executive session, the Valley indy asked if the discussion went beyond the stated topic — legal expenses related to the DEEP order.
“I would be breaching the executive session privilege if I told you that,” O’Connor said. “It was a discussion of exactly what I said.”
Why Does Any Of This Matter?
Derby’s sewer problems are expensive.
After roughly two years of public meetings and forums, Derby voters approved borrowing $31.2 million in November 2014 to make repairs and upgrades to the city’s sewer system.
However, the work — which will increase the average residential sewer bill by at least $250 per year — has not started.
One of several reasons for the delay — DEEP inspectors have major issues with the city’s sewer system and its Water Pollution Control Authority.
DEEP and the federal Environmental Protection Agency are on Derby’s case for allegedly polluting the Housatonic River with raw sewage.
In addition, some of the projects voters approved were supposed to be reviewed by the state.
DEEP and the EPA are trying to force Derby into compliance with a legal agreement that would, from the state’s point of view, compel Derby to do the right thing.
Mayor Reacts
Tuesday’s executive session involved three public boards — the Derby Board of Aldermen, the Derby Water Pollution Control Authority and a city infrastructure committee formed to serve as a watchdog for the $31 million sewer project.
Compounding the confusion over the executive session — each entity gave slightly different reasons for entering into the same executive session, and all the definitions given were slightly different than the reason stated on the meeting’s agenda.
- The Board of Aldermen voted to enter into executive session “to discuss the legal expenses associated” with DEEP’s order.
- The city’s infrastructure committee voted to enter executive session for the “purpose of discussing legal expenses of Pullman and Comley associated with the DEEP order.”
- The WPCA voted to enter the executive session to “discuss those items.”
The only government-related entities not invited into the closed-door discussion: Lindsay King, who is the supervisor of the city’s Water Pollution Control Authority, and engineers from Weston and Sampson, the WPCA’s engineering firm.
After Tuesday’s executive session, the Valley Indy asked Mayor Dugatto whether the public can follow the issue if a discussion over bills isn’t public.
Dugatto indicated a new task force of appointed and elected officials will help.
“We are opening up discussion now because there is going to be a Board of Aldermen representative at all the meetings who can explain to their board who can then explain to the residents,” she said.
The way some Derby boards and commission advertise executive sessions is problematic.
There seems to be no set policy in the city, so each public body does it differently.
Meeting agendas are supposed to give the public information on what’s being talked about — even in executive sessions.
But the city’s infrastructure committee often advertises “executive session, if needed” on its agendas, which relays no information.
The method has been deemed unacceptable by the state’s Freedom of Information Commission on numerous occasions.
The city’s police commission constantly advertises “executive session, personnel matter,” without giving any actual information, as required by law.
