Ridgefield Press
Dec 24, 2007

Lawyers for the town and the state Freedom of Information Commission dueled for an hour and a half Dec. 18 in New Britain as the Nick Gaeta case reached Superior Court.

Judge Henry Cohn listened as both sides began arguments over the town’s appeal of a state Freedom of Information Commission’s ruling that declared “null and void” a Board of Selectmen meeting at which town leaders sought Mr. Gaeta’s resignation. The former assistant fire chief decided instead to “retire,” an action the selectmen say was a “resignation.”

Emergency?

Arguments between town attorney Frederick L. Dorsey and Valicia D. Harmon, for the Freedom of Information Commission, ranged around the legal landscape.

The most intent focus was on whether a confrontation between Mr. Gaeta and First Selectman Rudy Marconi justified an “emergency meeting.” Mr. Gaeta and Mr. Marconi exchanged sharp words March 31, 2006, during which Mr. Gaeta told the first selectman “I’m gonna kill you.”

Mr. Marconi and Selectwoman Barbara Manners decided to call for an “emergency meeting” the next day. The FOIC said that meeting failed to meet requirements for proper advance public notification.

“I thought it went rather well,” said attorney Daniel Hunsberger, who was not a direct party to the appeal but was in court representing Mr. Gaeta’s interests.

“He’s an experienced judge. He’s been there for a while. I’d be hard-pressed to see why he’d rule against the commission. He certainly understood that there was — it was made very clear to him there was — no emergency as purported by Mr. Marconi, after the fact, of course,” Mr. Hunsberger said.

“Nothing was done that night that required immediate attention,” he said. “Their claim, of course, was that it was immediate because of Mr. Gaeta’s alleged behavior.”

Town view

Mr. Dorsey, the town’s lawyer, also sounded optimistic after the hearing.

“I think it went well,” he said. “The judge seemed to understand the nuances of the case and ask pertinent questions that I think elicited the information that we wanted him to hear with regard to the situation.”

The central matter, he said, was “the issue of what constitutes an emergency, and how a public agency is supposed to know whether they’re faced with an emergency so they can react in an appropriate and legal manner.”

In a brief filed before the hearing, Mr. Dorsey said the reason Mr. Marconi and Selectman Barbara Manners called the meeting was they “felt that Mr. Gaeta’s unexpected and violent workplace behavior created an ‘emergency’ concerning who would serve as the town’s acting fire chief. Specifically Mr. Gaeta’s conduct including threatening the first selectman’s life just one hour before the retirement of Chief Yarrish, rendered him unsuitable to act as chief leaving the position vacant.”

He also argued that, while there were several similar cases in which the commission ruled emergency meetings unjustified, it overturned decisions from those meetings only once.

Commission side

FOIC attorney Ms. Harmon had a different take.

“The situation leading up to the April 1, 2006, meeting was not ‘an emergency’ within the meaning of Connecticut General Statutes,” she said in an advance brief. “Specifically, based on the testimony of Mr. Marconi and Ms. Manners, the hearing officer found that the town’s concern was whether it could be subject to ‘potential liability’ if it permitted Mr. Gaeta to remain in the position of acting fire chief in light of his recent behavior.

“Moreover, the hearing officer found that the board produced no evidence at the hearing to prove, first, that Mr. Gaeta’s conduct during the previous week had any impact on his ability to fulfill his duties ... and, second, that the town would be subject to ‘potential liability’ if Mr. Gaeta were permitted to remain in the position...

 “A reasonable reading of the record reveals that Mr. Gaeta was simply blindsided by the board’s actions. While the FOIC has no authority over the town’s employment decision, it does have the power to require the town give adequate notice of its intent to make those decisions, and to order that an agency not use the pretext of an emergency as a way to conduct its business outside the public’s scrutiny. In this case the FOIC’s order does nothing more than invalidate the back room aspect of the town’s actions, and compel it to act openly.”

It will likely be some weeks before a decision comes down from the judge, and either side could appeal to a higher state court.

© Copyright 2007 by Hersam Acorn Newspapers