Wednesday, October 6, 2010

Fundamental fairness and orderly agency meetings

Reports are coming in, so says The Day, that Robert Fromer will be appealing his removal from the Windsor Town Council and that he will prevail on appeal. At this point it's time to look at the bigger picture.

Is there nothing to be done short of permanent removal of a disruptive member?

As I have written, not every town will have the fortitude of the Town of Windsor to undertake the process of removal of a wetlands agency member who is a disruption to the orderly process.

Our administrative agencies are required by the courts to conduct their business in accord with "fundamental fairness." The Connecticut Supreme Court, in a wetlands appeal, has instructed us to use that phrase instead of the previously used "due process rights" which suggested there is a constitutional source of such rights, which is limited to those who have a property interest. Fundamental fairness, on the other hand, is owed to everyone.

The chairwoman of the Windsor wetlands agency described Fromer's unwillingness to cease talking, an unwillingness to allow the chairwoman to speak and to move the meeting along. Both the town manager and she discussed a technique of calling a recess, in order to break the flow. It was not clear to me if and how that technique was used and its effect.

Is it fundamentally fair to have applicants and the public subjected to agency conduct which has been characterized as "dysfunctional" and "chaotic" which resulted in at least 2 instances where the agency failed to consider the merits of the application and impose any conditions because the agency appeared fatigued by the unrelenting talk of one member? I think not.

If applicants are owed notice and the opportunity to be heard, is anything heard when a member has so disrupted the process to render it "chaotic"?

I recall the early 1990s in Middletown, where I reside. Syd Libby had engaged in highly disruptive interference with city council and agency business, sometimes accompanied with his verbal hurling of anti-semitic epithets. (Ironically enough, Mr. Libby was Jewish). This took place at the Common Council meetings and the Conservation Commission in town over a couple of years, as I recall. The police were called in and he was arrested on a number of occasions for criminal trespass and disorderly conduct. Mr. Libby was convicted, in fact, on such charges for conduct at a Conservation Commission meeting. (The Middletown Conservation Commission does not serve as the inland wetlands agency in town.) The Commission had voted to go into executive session to consider the purchase of property as part of the city's open space acquisition; Mr. Libby refused to leave the meeting. His physical presence prevented the Commission from executing its duties -- which by law were authorized to be undertaken outside of public purview.

Perhaps, you say, there is a difference between disruptive behavior of an appointed member and a member of the public. As far as the disruption goes, there is not. Removing the disruptive member removes his ability to vote, at least on that application. Are appointed members allowed to be as disruptive or more disruptive than the public simply because they have been appointed? What would the legal basis be? After all, the member has sworn to uphold the law. If a member's conduct deprives the applicant and/or the public of fundamental fairness, how can the agency fulfill its duties?

So, I suggest that there is a judicious use of police presence and police action when meetings descend into anarchy. (I could not bring myself to write about police intervention, as I had intended last Friday morning, after I was accosted with online pictures of German demonstrators bleeding from their eyes after police intervention in the Schlossgarten park in Stuttgart, Germany.) I brought up this topic with Attorney Mark Branse as we were carpooling together last week. We have both been at public hearings where the police have been called in. In hotly contested proposals members of the public were still allowed their opportunity to express themselves, evenly heated, within the bounds of civil discourse. It may have served to chill disruptive behavior, however.

Along with Assistant Attorney General David Wrinn, Mark Branse and I will be offering two workshops as we have for the past 3 or 4 years at the CACIWC annual meeting in November. We offer an update on legislation and case law. Mark and I have decided that controlling chaotic agency proceedings is as important as understanding the latest Appellate Court case on consideration of wildlife (both of we will also be covering.)

Will the judicious use of police presence avert another town from having to await a mass of evidence such as Windsor accumulated? Hopefully. Is it a step that should be undertaken with counsel from the town? Absolutely. Will it curb repeated disruptions? Unknown. Will it stop people from filing FOIA request upon FOIA request? Not at all.

A reader of this blog with whom I have shared my idea of the use of police was frankly aghast at my implicit position that member conduct could ever be criminal. But consider the inverse: member conduct is never criminal? "Never" is a long time. Our messages were flying through cyberspace at each other. I invite readers to add their comments at the bottom of any post. Bring on the searing, scathing comments and the civil dialog that will ensue. And if you prefer, you may just correspond with me at jb@attorneyjanetbrooks.com.

I wasn't sure at the beginning why I decided to go to all of the Windsor Town Council meetings. David Drury of the Hartford Courant was certainly doing an excellent job keeping me informed. I guess I wanted to see if this is the new norm of how to remove a commission member. Thirty years since the Obeda case, our administrative hearings have become as formal as our court proceedings. I guess I wanted to understand how far the conduct of one member had gone and what that had done to the process. I was struck by the sense of helplessness and hopelessness of the volunteer members . . . and by the less than adequate quality of wetlands permits that were being issued.

May civil discourse rule.

2 comments:

Gutch said...

I've been following your thoughtful discussion of Robert Fromer's removal with interest. I served on the Windsor Conservation Commission (which is decoupled from Inland Wetlands and has no regulatory power) several years ago, when Bob had just moved to Windsor. His belligerence, long-windedness, obsessive legalism, and anti-human philosophy were apparent then, and when he attempted to join the commission, we took the unusual step of quietly letting the Democratic party know that we didn't know how we could work with him and that we would prefer he not be recommended. How he eventually got onto the IWWC I have no idea, but the appointment process for town boards and commissions usually consists of the parties recruiting people to fill the massive number of vacancies, with scarcely any vetting.

But I do not believe Bob's toxic personality amounts to "willful neglect of a public duty or a callous disregard for moral principles." I have to think that, once the Town Council failed in its due diligence, there should have been ways to fence Fromer in, short of calling in the police, as you suggest.

On the commission side, there is no law or rule that says a commissioner has to be allowed to blather on indefinitely and harangue applicants, other members, and staff without restraint. A commission may adopt its own rules of order, so long as they are consistent with the Freedom of Information Act and any relevant ordinances. For example, the commission could have adopted a standing rule saying that a commissioner may speak no more than three times while debating any particular application, for no more than five minutes at a time (simply an example - so long as the limits are reasonable and can gain the support of a majority on the commission, they are enforceable). Robert's Rules include clear and enforceable guidelines for decorum and civility. And during hearings, a firm chairman can interrupt any commissioner whose "questions" are not actual questions, and require him to skip the editorializing and get to the actual question - if there is one.

The town employee side is more challenging. I think that if this removal is to survive a court challenge, it is because Fromer created such a hostile work environment for Cyd Groff, who I have known as a passionate, committed public servant. But protecting staff from a toxic commissioner is a huge challenge. Every member of the public has a right of access to government, and an Inland Wetlands commissioner should be able to talk to and get information from the Wetlands Agent. But, with a supportive Town Manager and the cooperation of a majority of the Commission, boundaries can be drawn that limit the duration and nature of contacts with staff. It's sad that it would have to come to that, but perhaps it might have been a better outcome than $30,000 and counting in legal fees.

In fairness, I don't live in Windsor anymore, and don't know what steps the commission and staff attempted before bringing Bob up for removal. It could be they tried everything I mentioned and more, and removal was truly a last resort.

Anyway, thanks again for covering this experience in such detail and helping other local commissions to learn from it.

Gutch said...

I've been following your thoughtful discussion of Robert Fromer's removal with interest. I served on the Windsor Conservation Commission (which is decoupled from Inland Wetlands and has no regulatory power) several years ago, when Bob had just moved to Windsor. His belligerence, long-windedness, obsessive legalism, and anti-human philosophy were apparent then, and when he attempted to join the commission, we took the unusual step of quietly letting the Democratic party know that we didn't know how we could work with him and that we would prefer he not be recommended. How he eventually got onto the IWWC I have no idea, but the appointment process for town boards and commissions usually consists of the parties recruiting people to fill the massive number of vacancies, with scarcely any vetting.

But I do not believe Bob's toxic personality amounts to "willful neglect of a public duty or a callous disregard for moral principles." I have to think that, once the Town Council failed in its due diligence, there should have been ways to fence Fromer in, short of calling in the police, as you suggest.

On the commission side, there is no law or rule that says a commissioner has to be allowed to blather on indefinitely and harangue applicants, other members, and staff without restraint. A commission may adopt its own rules of order, so long as they are consistent with the Freedom of Information Act and any relevant ordinances. For example, the commission could have adopted a standing rule saying that a commissioner may speak no more than three times while debating any particular application, for no more than five minutes at a time (simply an example - so long as the limits are reasonable and can gain the support of a majority on the commission, they are enforceable). Robert's Rules include clear and enforceable guidelines for decorum and civility. And during hearings, a firm chairman can interrupt any commissioner whose "questions" are not actual questions, and require him to skip the editorializing and get to the actual question - if there is one.

The town employee side is more challenging. I think that if this removal is to survive a court challenge, it is because Fromer created such a hostile work environment for Cyd Groff, who I have known as a passionate, committed public servant. But protecting staff from a toxic commissioner is a huge challenge. Every member of the public has a right of access to government, and an Inland Wetlands commissioner should be able to talk to and get information from the Wetlands Agent. But, with a supportive Town Manager and the cooperation of a majority of the Commission, boundaries can be drawn that limit the duration and nature of contacts with staff. It's sad that it would have to come to that, but perhaps it might have been a better outcome than $30,000 and counting in legal fees.

In fairness, I don't live in Windsor anymore, and don't know what steps the commission and staff attempted before bringing Bob up for removal. It could be they tried everything I mentioned and more, and removal was truly a last resort.

Anyway, thanks again for covering this experience in such detail and helping other local commissions to learn from it.