Open governance ranked 8th in top 10 stories of 2013

Over the last year, Darien’s government has been scrutinized for practices that have many in town questioning its ability to operate openly. Compliance with the Freedom of Information Act has been a problem for several elected bodies, but some say these volunteers should be treated with less scrutiny since they help the town on their own time.

While transparency problems stemming from the special education crisis have inspired many headlines, openness has been an ongoing concern across the town.

In March, The Darien Times reported that only five of the 40-plus public bodies in town had been consistently compliant with FOIA law over the last three years. Some apparent violations were minor and others appeared more egregious. The EMS Advisory Committee failed to post a single notice of a meeting or an agenda since it came into existence in 2009. By law, notice of a meeting is supposed to be made public 24 hours in advance of the meeting, and minutes are supposed to be public within seven days.

While there is a 30-day statute of limitations on filing an FOIA complaint after an alleged violation, that statute is waived if meeting minutes have never been filed, said Tom Hennick, a spokesman for the state Freedom of Information Commission. In 2010, the Board of Education failed to file minutes for six of its meetings, and the Zoning Board of Appeals had no minutes from 10 meetings that same year.

The school district’s response to records requests has gotten much attention this year. The Darien Times has filed three complaints with the Freedom of Information Commission, alleging the district is illegally withholding publicly available information. The Times has voluntarily withdrawn two complaints to allow the most pressing problem to be handled first. This involves access to communications made between the schools and Duby McDowell Communications, a public relations company.

The district’s lawyer, Tom Mooney, claims these discussions are exempt under lawyer-client privilege. However, The Times claims McDowell had direct contact with school personnel and the Board of Education, and Darien taxpayers have paid McDowell more than $30,000 to help the schools manage what could become a seven-figure problem.

McDowell’s services were retained in April after 25 parents filed a complaint with the state Department of Education, alleging systemic violations to federal special education law. State and independent investigations later confirmed that Darien broke the law, uncovering problems that continue to surface.

The parents’ complaint had authority because someone within the school district leaked them a memo drafted by Deirdre Osypuk, special education director. Parents had asked via a FOI request for all special ed policy changes and related documentation, but the memo was omitted. The memo was later determined to issue numerous illegal directives to staff, which resulted in less parent involvement in decision-making, and the loss of services to children with disabilities.

Other documents were also omitted. Then-Superintendent Steve Falcone had responded to the parents’ FOI request, but failed to include the memo or other items. He later only apologized for leaving out the memo, not the other items. He claimed it was an oversight, and lawyer Mooney said he didn’t think Falcone was trying to cover-up what later was found to be an illegal special education program.

Months later, Falcone resigned, only to resurface again as head of Stamford Schools’ human resources department. Mooney works for Shipman & Goodwin, which is also the law firm for Stamford Schools. Lawyers routinely assist school districts while hiring major administrative position. The Darien Board of Education appears to have blamed Falcone for having caused the special ed problems. Others claim Falcone is merely the scapegoat.

Freedom of Information Act requests have revealed a number of questionable practices in Darien Schools. Through an examination of thousands of emails, The Darien Times learned that Osypuk ordered the destruction of documents with no reference to records retention policies. It was also learned that a Board of Finance member met with Osypuk during the summer, leading some to believe the finance board was overly involved in school policy.

It was learned that Falcone had little interaction with special education management, despite his assertion that Osypuk reported directly to him. Emails obtained via FOI requests showed Osypuk had much more interaction with Judith Pandolfo, assistant superintendent of elementary education.

Through the FOIA, The Darien Times obtained data on pre-special education interventions, known as SRBI, that had never before been made public. Attorney Gamm then used this information in her report, which found these data were incomplete and inconsistent with state guidelines, and referenced The Times as her source.

Gamm suggested the district implement a five-part plan to improve responsiveness to FOI requests. This includes keeping records that monitor student progress; improving search functions; maintaining the appropriate records as per state and federal law; releasing student records via parent consent; and training staff on appropriate response procedures.

State officials have also been unresponsive to FOI requests, having only responded to one made by this newspaper, which was charged $172.25 for 689 pages. Several requests have been made, and emails seeking information on when a response could be expected have not been answered. Kelly Donnelly, the state spokesperson to whom all education-related requests have been referred, is responsible for handling The Times’ FOIA requests. The U.S. Department of Education has also not responded to one FOI request.

While any request of a public record is ostensibly made under the FOIA, requests should cite the act by name to ensure accountability, according to state officials. In Connecticut, a public agency has four business days to acknowledge the request was received, with a few exceptions. If it does not acknowledge receipt, it is considered a denial. Denials can only be made under certain exemptions in the FOIA.

This summer, Hagerty-Ross complained that FOI requests were “raising [the school district’s] budgets quite a bit,” and that these requests could affect services for students, insinuating that money would be spent on fulfilling requests and not educating kids. However, when she expressed this notion, the district had spent more money paying McDowell for public relations assistance than it had spent fulfilling FOIA requests, according to legal bills obtained via the FOIA.

The Times also uncovered a problem with email retention policies, which sparked a heated debate on the paper’s website between Board of Finance Chairman Liz Mao and resident Lisbeth Ehrlich. Many elected officials use their private email accounts to conduct town business, which is counter to direction given by Eunice G. DiBella, the state’s public records administrator.

“There is no requirement that ‘town business be recorded and retained through business accounts’,” Mao commented. “If you find it necessary to troll through my email, you are free to file a lawsuit and then subpoena Google to satisfy yourself that I am in fact obeying the law.”

Soon after the special education complaint surfaced, Mao emailed fellow finance board members, saying that Hagerty-Ross could have “all the lawyer money she wants” to fight the complaint.

“This attitude must be eliminated for us to move forward with an open and proactive government that seeks to serve everyone,” Ehrlich said.

While FOI violations remain, much has improved. All Board of Education members have email addresses through the town’s email server, and more information on executive session topics is being provided. The EMS committee has improved its minute-taking procedures, and district lawyers developed a protocol for responding to FOI requests, according to legal bills. While it is virtually impossible to ensure compliance with FOI, as officials can secretly use text messages and private emails to conduct town business, there is evidence suggesting that many are trying to fully obey the law.

Originally published in The Darien Times.

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