Status of Court Proceedings Between Marissa Lowthert and Wilton

Last week a Connecticut Superior Court judge found in favor of Marissa Lowthert in a civil complaint she made against the Freedom of Information Commission (FOIC) regarding a case decision involving the Wilton Public Schools.

There are several cases involving Lowthert and the town in the CT court system presently and in the recent past. Information and case-related documents, filings and notices are posted online on the CT Judicial Branch website. Each case described below is linked to the online case file.

At last night’s Board of Selectmen meeting (Tuesday, Jan. 19) Anne Kelly-Lenz, Wilton’s CFO, included in her report to the board the mention of costs to the town from current litigation. She told the BoS members that the town is forecasted to overspend by approximately $110,000 in legal costs and agency placement fees.

“The increase in the legal fees are in relation to three main things:  tax appeals; the litigation going on in the past few months; and the increase in FOI requests and also FOI appeals,” she said.

She did not break out how much each of the three main legal areas impacts that projected expense overage.

Freedom of Information Commission

HHB-CV15-6028735-S

File Date: April 9, 2015

Description:  In a civil complaint against the FOIC, Wilton Schools and former superintendent Gary Richards, Lowthert appealed a decision by the FOIC dismissing her complaint against Wilton Public Schools regarding records she requested about a ‘Child Find Policy.’ Lowthert’s appeal asked the court to find that the FOIC was erroneous and that the school and Richards were at fault.

Conclusion:  Plaintiff withdrew appeal, Nov. 12, 2015

HHB-CV15-6028739-S

File Date:  April 9, 2015

Description:  In a civil action against the FOIC, Wilton Schools and Richards, Lowthert appealed a FOIC decision dismissing her complaint against Wilton Public Schools regarding records she requested that pertained to school policy about homeschooling requirements.  Lowthert’s appeal asked the court to find that the FOIC had erroneously found that the district did not violate provisions of the Freedom of Information Act (FOIA). According to the complaint, when Lowthert wished to withdraw her children for homeschooling, she said the school requested “unrestricted release of medical information” and cited state law as basis for the request. Lowthert’s appeal states that the school did not provide records pertaining to such.

Conclusion:  Plaintiff withdrew appeal, Nov. 12, 2015

HHB-CV15-6028902-S

File Date:  April 24, 2015

Description:  Lowthert filed a civil claim against the FOIC and the Wilton Board of Education to appeal three decisions by the FOIC regarding closed meetings of the BoE in executive session. The appeal stated that the FOIC was erroneous in finding that the BoE did not violate the FOIA on Feb. 27, April 10, and June 26, 2014. Lowthert alleged that the agenda for each meeting failed to adequately describe the reason for meeting in executive session and who attended each executive session meeting. In addition, she asserted that the FOIC hearing officer did not examine an attorney-client memorandum in question, even though she requested he do so.

Conclusion:  On Jan. 15, 2016, Superior Court Judge Carl J. Schuman rendered his decision in favor of Lowthert, reversing the FOIC decision and remanding it back to the FOIC for further consideration.

Schuman found that without looking at the memorandum, the FOIC hearing officer could not determine whether its subject matter would have revealed confidential communications. He also found that the statement of “discussion of confidential attorney-client memorandum” is not sufficient enough information to the public to justify why an executive session is being held, writing,

“…there is no reason on this record why the board of education could not have described the business to be transacted as something such as ‘discussion of confidential attorney-client memorandum re legal claim of John Smith’ or ‘attorney-client memorandum re settlement with Mary Jones.’ Such a description would have fairly and more adequately appraised the public of the business to be transacted without in any way disclosing any confidential attorney-client communications.”

Schuman also found “substantial prejudice” to Lowthert, stating that, “it seems self-evident that some harm occurs whenever the public is denied information to which it has a right…In this case, the plaintiff could have used more specific information about the subject matter of the executive session to decide whether to attempt to attend any public portion of the meetings, to object to the executive session, or to follow up in some way.”

The judge ordered that the commission should examine the memorandum and, unless inappropriate, order the BoE to disclose the general subject matter of the memo. He did not impose any fines.

HHB-CV15-6030425-S

File Date:  Aug. 24, 2015

Description:  In a civil action filed against the FOIC and the Miller-Driscoll Building Committee, Lowthert appealed a decision by the FOIC in favor of the building committee that found the building committee did not violate provisions of the FOIA. In her complaint she alleges that the building committee and the town violated the Open Meetings Law in February 2014 by taking by an “unlawful private email vote” and conducting public business in private by email. She alleged that the vote, deciding between two building design options, was originally scheduled for public discussion and public vote, and that the vote for a $35 million proposed design actually took place by email. The complaint charged that the vote was unlawful and violated the Open Meetings Law.

In addition, the appeal lists multiple complaints of insufficient record keeping of documents and minutes by the building committee and charges that there were several procedural errors during the FOIC hearing. One such charge suggest that hearing officers helped the building committee in formulating its defense.  “The hearing officers first suggested and then allowed the [respondent] to create new documents and file post-hearing affidavits. The purpose of these after the fact documents was to support a new defense suggest by the hearing officers that Respondent was unable to demonstrate at the hearing.”

Not only is Lowthert seeking a reversal of the FOIC decision against her, but she is also asking that the court to “declare ‘null and void'” the vote on final design as well as all selectmen votes and actions on the project since February 2014.

Status:  In a notice posted Dec. 22, 2015 online, the case “was marked ‘settled but not withdrawn’ after pretrial by agreement of the parties.” The parties need to file a withdrawal or motion for stipulated judgment before Jan. 22, 2016 or else it will be dismissed.

HHB-CV15-6030426-S

File Date:  Aug. 24, 2015

Description:  In a civil action against the FOIC, the Wilton Board of Finance and the Town, Lowthert charged that the FOIC improperly decided in favor of the Town and the BoF with regard to a complaint she had made about documents being withheld.

Lowthert had asked for documents concerning an alleged misappropriate of town funds, referred to as the “O’Toole misappropriation” in the case documents. She said the town provided her with 141 pages of redacted files on July 7, 2014, and 18 days later she filed a FOIC complaint alleging the town did not provide all the records she’d asked for. The FOIC scheduled a hearing for April 7, 2015, and just one day before, the town provided 156 unredacted pages. She charges that not only were records still missing, but that the fact that additional pages were provided 9 months later was a violation of FOIA—in other words, those 15 additional pages of information as well as what had previously been redacted had been withheld from her for 286 days.

Her appeal charged that the FOIC hearing officer was wrong for recommending dismissal despite “overwhelming evidence establishing a FOIA violation,” and that the officer restricted her “right to freely examine the chairman of the BoF.”

Stating that she has still not received the five missing files, she alleges that the withholding of documents is part of a collective effort by “Town Officials [who] had concealed knowledge of a serious crime:  a Class B felony embezzlement against taxpayers.” Lowthert’s complaint suggests that the hearing officer may have helped the town in that effort:

 “One can only conclude that the Hearing Officer either made a grievous error of fact and law in its decision OR decided to intentionally ignore this provision of the FOIA to help officials of the Town of Wilton continue to conceal this Class B Felony against taxpayers and the Community.”

She also included a “claim of inequitable treatment by the Hearing Officer,” alleging (among other things) that he denied Lowthert’s “reasonable” request for additional time to review the records even though she maintained that as a mother of three young children with no staff it was an “unreasonable burden” for her to do so until 8:24 p.m. the night before the hearing; nor did he grant her time post-hearing.

Status:  In a notice posted Dec. 22, 2015 online, the case “was marked ‘settled but not withdrawn’ after pretrial by agreement of the parties.” The parties need to file a withdrawal or motion for stipulated judgment before Jan. 22, 2016 or else it will be dismissed.

Town of Wilton, Board of Education, Town Officials

FST-CV15-6026938-S

File Date:  Nov. 19, 2015
Description:  Marissa and Christopher Lowthert filed a lawsuit in Stamford Superior Court against the Wilton Board of Education, the Wilton Public School District, the Town of Wilton and multiple town officials, including former superintendent Gary Richards, Board of Education chairman Bruce Likly and former first selectman Bill Brennan.

In the lawsuit, filed on behalf of their children, the Lowtherts assert that their children “were injured after being subjected for years to wet building conditions, mold, poor indoor air quality, high carbon dioxide and poor ventilation in the Town of Wilton public school system.”

It also charges that the poor indoor air quality conditions at Miller-Driscoll were known to the named defendants “for a number of years.”

The lawsuit alleges that the Lowthert children “sustained the following serious injuries some or all of which may be long-term or permanent in nature” and lists respiratory symptoms including chronic congestion; cognitive symptoms; asthma; building related illness; mold allergy; allergic symptoms; nosebleeds; headaches; sore throat; nausea; behavioral changes; insomnia; fatigue and loss of appetite, among them.

In addition to the Town of Wilton, the Board of Education and the Wilton Public Schools, the complete list of defendants named in the suit includes: former superintendent Gary Richards; BoE chairman Bruce Likly; former first selectman Bill Brennan; former Miller-Driscoll principal Cheryl Jensen-Gerner; and Wilton Schools’ director of financial planning and operations Ken Post.

Lowthert originally filed a notice of claim in May of 2014, informing the town of her intent to sue.

Status:  There is a status conference between the parties and their attorneys in the judges chambers on Jan. 29, 2016. In the meantime, the defendants’ attorney has requested an extension of time to plead, which the judge granted. That extension was granted until Feb. 15, 2016.