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City Attorney Anastasi Tells Torres To File An FOI Request, Swain Says Opinion ‘Severe Roadblock’

June 25th, 2015 · 22 Comments · City Council, News and Events

Leave it to Bridgeport’s verbose City Attorney Mark Anastasi to save the best for last. In his nearly 18 months on the City Council, Republican Rick Torres, also a mayoral candidate, has railed about the lack of city information flow to the budget and legislative body. In a legal opinion regarding a resolution for departmental information, Anastasi writes “NOT legal and proper for adoption.” Anastasi’s final paragraph offers a suggestion: if an individual council member wants public records file a freedom of information request. “Receipt of an FOIA request generally is acknowledged within four (4) business days and non-exempt documents are produced for review and purchase within a reasonable time period.” Really?

Councilor Trish Swain, who’s not seeking reelection, opposes Anastasi’s opinion:

I was dismayed to read the attorney’s response and hope we can all work together in the spirit of this resolution so that the Council Members can get the information they need to do the job for which they were elected. In essence, the City Attorney states that City Council’s power to procure information refers to the council as a whole, disallowing individual council members to make information requests. This seems to be a severe roadblock to the checks and balances that the council is suppose to provide. We have been elected by residents in our district to form a legislative body which votes on many important issues in the City. As volunteers, it is difficult enough to educate ourselves on these city issues, and I’m saddened that the denial of resolution #105-14 will make it even more difficult to do our jobs properly.

Grab a cup of joe and read Anastasi’s complete legal decision.

Re: Resolution #105-14 “City Council Members Requests for Departmental Information”

Dear Council members:

The above-referenced resolution proposes in part to mandate that “written request for Departmental Information of any kind from any City Council member to any City Department or Department Director or their designee will be provided expeditiously.”

CONCLUSION

In accordance with my February 3, 2014 Memorandum to the City Council regarding “Authority of City Council Pursuant to BPT Charter, Chapter 9, Sec. 4″ (copy attached) and for the reasons set forth herein, proposed resolution #lO5-14 is NOT legal and proper for adoption.

RELEVANT PROVISIONS OF BPT CHARTER & CODE OF ORDINANCES

Charter, Ch. 9 BUDGET AND FISCAL CONTROLS, Sec. 4 “City Council-Power to procure information” states:

“The city council shall have full power to require the different city officers and employees to furnish all the information which they may possess and to exhibit to it all books, contracts, reports and other papers and documents in their respective departments, or in their possession, requisite, in the opinion of said board, to enable it to discharge the duties imposed upon it by this chapter and it is hereby made the duty of all the city officers to furnish and exhibit the same when so required.”

Charter, Ch. 5 CITY COUNCIL, Sec. 5 (e) states:

“The presiding officers of the city council and of the several committees of the city council, shall have the power to compel the attendance and testimony of witnesses before the respective bodies over which they preside, by the issue of subpoenas and the administration of oaths in the manner and according to the rules governing the same in courts of justice, and when it shall be necessary to secure the attendance of witnesses before said boards or committees, the respective chairman shall have the right to apply to the proper authority for the issue of a capias ad testificandum for that purpose, as provided in number 461 of the special acts of 1907.”

Charter, Ch. 6 DEPARTMENT OF POLlCY AND MANAGEMENT, Sec. 1 “Department of Policy and Management; Director; Powers and Duties”, subsection (a) states:

There shall be an department of policy and management which shall be responsible for budget analysis, development and administration; operations planning and improvements; program performance evaluation and monitoring; management improvements for all boards, commissions and departments of the city; intergovernmental relations and such other functions as the mayor or the city council may, from time to time, assign to it.

Charter, Ch. 3 MAYOR, Sec. 1 “Selection; Powers; Duties”, subsections (a), (b) and (f) state:

(a) The chief executive officer of the city shall be a mayor, elected pursuant to the provisions of Chapter 2 of this charter.

(b) The mayor shall take care that the laws are executed and enforced within the city; shall be the conservator of the peace with the city; shall have and may exercise, within the limits of the city, all the powers given the sheriffs or other officers as provided by law; and shall exercise ultimate operational control of all departments and agencies of the city …

(f) The Mayor shall have authority at any time to examine all data and property of the city in the possession of any officer, agency, department, commission, board, authority, employee or any other member of the municipal government, and may exercise this authority in person or through any other official appointed by the mayor for that purpose by written designation and authority.

Code of Ordinances, Sec. 2.06.060 – City council procurement of financial information as a prerequisite to budget transfers states:

A. All requests for transfers often thousand dollars ($10,000.00) or more in the aggregate in anyone fiscal year between sublime item accounts of the adopted annual operating budget submitted to the city council (pursuant to Bridgeport Charter Chapter 9, Section 5(i) shall be accompanied by supporting documentation necessary and sufficient to disclose and explain the reason or basis for the requested transfer, the particular purpose for which the transferred dollars will be expended and any and all contracts, agreements, purchases or other purposes for which the transferred funds will be utilized; and

B. Any transfers between the line item accounts (salary, overtime, fringe benefits and operating and special services) shall be submitted to the city council for approval with all supporting documentation for the requested transfer regardless of the dollar amount.

STATUTORY CONSTRUCTION I LEGAL ANALYSIS

The plain language of Ch. 9, Sec. 4 of the City Charter states that it is the “city council” (not an individual member thereof) that “shall have full power to require the different city officer and employees to furnish” information and documents “requisite, in the opinion of said board [city council], to enable it to discharge the duties imposed upon it by this chapter … ”

“In construing a statute where the wording is plain [clear], ‘we are not at liberty to speculate upon any supposed intention not expressed in an appropriate manner or to restrict the ordinary import of words used in order to effectuate such supposed intent but which the statute in its native form does not express. ” McManus v. Jarvis, 128 Conn. 707, 711, 22 A. 2d 857; State ex reI. Board of Education v. D ‘Aulisa, 133 Conn. 414, 422, 52 A. 2d 636. JJ Jack v. Torrant.136 Conn. 414, at 418 (1950) (construing zoning statutes).

By the plain language of the Charter, authority to compel information from City departments is vested by Charter solely in the legislative body as a whole, and in order to exercise its Charter authority, the City Council must act by majority vote at a properly noticed public meeting. The plain language of Charter, Ch. 9, Sec. 4 does NOT empower any individual member of the City Council to “require” the production of information or documents by City officers and employees. Nor can the City Council unilaterally create such power in the hands of individual Council members by attempting to delegate its collective authority to each individual Council member.

“It is well-settled rule [of statutory construction] that when municipal councils or boards of any kind are called upon to perform legislative acts or acts involving discretion and judgment in administering the public affairs, they can only act at authorized meetings duly held. The council or board must meet and act as a board or council.” citations omitted Jack v. Torrant, supra at 420. See also, 56 Am. Jur. 2d,”Municipal Corporations, Etc. “, § 136 at 206 wherein it is stated: “A municipal or county council can act only as a body and when in session as such. Furthermore, the powers of a municipal councilor body must be exercised at a meeting which is properly noticed and agreements entered into outside a regular meeting are not binding.” “The members cannot make a valid determination binding upon the corporation by their assent separately and individually expressed [even if a majority so concurs] … Wherever, a matter calls for the exercise of deliberation and judgment, it is right that all parties and interests to be affected by the result should have the benefit of the counsel and judgment of all the persons to whom has been entrusted the decision.” Jack v. Torrant, Ibid.

See also, Martin v. Lemon, 26 Conn. 192 at 194 (1857) wherein the Connecticut Supreme Court in discussing the authority of a public committee to act states: ” … if the act is merely ministerial in its character, a majority at least must concur and unite in the performance of it; but they may act separately, and need not be convened in a body or notified so to convene for that purpose; but if the act is one which requires the exercise of discretion and judgment, in which case it is usually termed a judicial act, unless special provision is otherwise made, the person to whom the authority is given, must meet and confer together, and be present when the act is performed, in which case a majority of them may perform the act; … Damn v. Granby, 2 Pick., 345,354 … There is nothing in the act now in question which takes it out of the operation of these principles, or provides that the authority conferred by it may be exercised by one only of the members of the committee mentioned in it. Its terms contain no express delegation to the individual members of the committee of the power given to the committee, nor do those terms imply that they import that one of them may separately exercise that power … This term [committee or city council], when it is applicable, as it is in the present case, to more persons than on, is a collective word, or, as grammarians would say, a noun of multitude, and indicates a plurality of persons. The expression which is thus used in the act is therefore not appropriate to express the idea that the poser conferred on a committee may be exercised by each individual member of it separately. And accordingly, as a reference to our statutes will abundantly show, wherever an authority is conferred by statute on several persons, by whatever term they are designated [i.e. committee or city council], and it is intended that a particular portion of them may exercise that power, it is usual to insert some phrase which expresses such intention.” No such phrase exists in BPT Charter, Ch. 9, Sec. 4.

CITY EXECUTIVE BRANCH COOPERATION

While BPT Charter, Ch. 9, Sec. 4 vests only the City Council with authority to “require” the production of information and documents to facilitating the Council in its ability to conduct its business, the City’s executive branch, acting though the Office of the Chief Administrative Officer (CAO), is committed to assisting the Council in moving its legislative business. To that end, individuals seeking information from City departments or officials have been invited to submit their requests directly through the CAO, who facilitates appropriate and timely responses and makes every effort to accommodate individual Council member reasonable requested response times without unduly disruption ongoing City operations and workload.

In addition, individual City Council members may submit their requests for data, documentation and information through the full City Council, the various committee co-chairs. City officers and employees routinely produce information and documents to the Council and its committee co-chairs as rapidly as reasonably permitted in view of the press, of the executive branch’s day-to-day business operations.

Finally, individual City Council members have the same legal rights as any person to file FOIA requests for public records with the City. Receipt of an FOIA request generally is acknowledged within four (4) business days and non-exempt documents are produced for review and purchase within a reasonable time period.

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22 Comments so far ↓

  • The Bridgeport Kid

    That Mark Anastasi, he’s such a team player. Even if the team he’s playing for is about to go down like a burning tuna boat.

  • Local Eyes

    If only they had a vote.
    There are more members of The Mark Anastasi Fan Club than there are members of Bridgeport’s City Council.

  • Jennifer Buchanan

    So every taxpayer $$$ from local, state and federal taxes run these department budgets and we have to do an FOI to see how our money is being (miss)spent? The only non-available documents from what I understand are related to personal files and pending lawsuits. What is this administration hiding?

  • Black Rockin

    JML, the impossible has become possible!
    You have been out-worded (my invented word).

  • John Marshall Lee

    Black Rockin,
    The reason for the out-wording is I have not been trained as an attorney possibly. Mark has a client to represent. He quotes the law rather conservatively, for if Finch were truly OPEN, ACCOUNTABLE and TRANSPARENT this info would have been provided routinely years before Rick Torres appeared. And recommends an FOI process that more often than not for many inquiries leads to an automatic appeal to the State.
    What to do? This is an attack on a Council where a handful of people are showing some life. And that is threatening? Yes, it’s an election year but it is only June. Are they putting on life jackets yet? Time will tell.

  • Andrew C Fardy

    A decision from the highest-paid prostitute in Connecticut.Talk about horseshit.

  • Donald Day

    Is it just me, or is that a lot of legalese mumbo jumbo just to tell Ricky to go fluck himself?

    Ricky, don’t give up because if you do there aren’t many other council people who will fight for the best interest of Bridgeport residents at the expense of the mayor.

  • Booty

    Hey, I know! Now that Anastasi is on record, let’s shove his opinion up his ass!

    Enrique, all you have to do is amend your proposal to say any request from any council member has the force of a request from the entire council.

    This should be no more difficult than getting your original proposal passed, just add it in!

    And given how popular Anastasi is with most councilors, he may have just helped you!

  • Come Back Bridgeport

    Keep it up, Rick. You’re my second choice for Mayor.

  • Pete Spain

    I’m embarrassed for Holy Cross College in Worcester MA, that it produced lawyers Mark Anastasi and Clarence Thomas.

    • Local Eyes

      They both made headlines yesterday. One on a national level and the other within local grasp. What you call embarrassments, the media–this blog included–calls newsworthy.

  • Harvey Weintraub

    Finch has so much to hide, has done so many less than ethical things while in office ,he doesn’t want ANYTHING being released to the general public. C’mon Bpt, time for a change.

  • Donald Day

    Two great attorneys whose moral conscience is broken.

  • Tom White

    City Attorney Mark Anastasi cited all the appropriate charter and ordinance guidelines that supports the stifling of reasonable inquiries by concerned council members. This is not the first time he has cited them. There is an alternative to submitting resolutions through the committee process which gets pigeon-holed. The city council president has the authority to appoint a special committee to delve into matters, or he can allow a resolution to be placed on the full council agenda for immediate consideration. The city attorney did not mention these options. Will the council president take action? Don’t be silly.

  • Jeff Kohut

    Denying a city legislator expedient access to public information related to his job is an outrage.

    Mayor Finch: Do the right thing and tell Attorney Anastasi to be a help, not a hindrance to diligent public servants.

    This speaks very badly of your Administration.

    The public should be livid!

    This is no way for the City Attorney to assert his value to the city. This is the type of thing that could get him fired in a city with a functional government.

    I think Booty may be onto something in regard to a way to address this outrage.

  • Bob Walsh

    What a pompous ass. Fire the bastard. Next!

  • Ron Mackey

    This is Hamilton Burger at his best, he argued the law when it gives him what he wants or he argued the facts when he can’t use the law. Tom White mentioned the options Burger could have provided the Council President but he didn’t.

  • Bob Walsh

    Everybody. As always, Mark’s legal opinion is totally flawed.
    Here are just a few reasons why.
    1) Rick submitted a resolution for the council’s approval. A resolution does not have the power of an ordinance or the City Charter. A resolution simply expresses the opinion of the council and does not “force” the city to do anything. This is perfectly in order for consideration by the council.
    2) Unless Council President McCarthy or the Misc Matters Chair specifically requested Mark’s opinion, it is out of order. He has no legal responsibility or right to intervene on council deliberations. His comment carries no more weight than a member of the public who sends an e-mail to the council members expressing their opinion.
    3) Even though city ordinances requires a timely written opinion from the City Attorney before acting on a proposed ordinance change, it does not require the council to accept that written opinion. So if the council does not need to heed the opinion of the CA before adopting an ordinance, they are fully within their right to totally ignore any opinion proffered on a resolution.
    4) Mark is creating his very own conflict of interest here. He is saying the council cannot approve this resolution, even though he has no legal authority to do so, but instead must present an FOIA request TO HIS OFFICE so he can control what information and the timeliness of it.
    Another piece of garbage courtesy of the City Attorney’s Office.

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