Hot Mic at P&Z Meeting Catches Bethel Town Planner Beth Cavagna Making ‘Negative’ Remarks About a Bethel Business Owner; FOIC Rules in Favor of Complainant

February 23, 2023 BETHELADVOCATE Announcements, Around Town, Government, News 0

Report by Paula Antolini, February 23, 2023, 12:41PM EDT

This article has been updated with information, at the end of the article, on February 24, 2023, 10:57am, which includes a transcript of some of the words said during the meeting recess.

This article has been updated with information, at the end of the article, on February 24, 2023, 6:31pm, which includes a Summary of the Law.

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Does a citizen have the right to obtain the original, unedited digital recording of a Planning & Zoning meeting, even if, during a recorded “break” section, it recorded a town official saying some “unflattering” or “negative” words about a Bethel business owner, in this case, Timothy Draper?

Mr. Draper, a developer, often appears before the board for his building projects. According to Timothy and his wife, Laurel Draper, The Freedom of Information Commission (FOIC) complainants, they allegedly also claim that the P&Z meeting “break” was not properly introduced, according to Robert’s Rules of Parlimentary Procedure, so the recorded “break” section is part of the meeting and thus, the unedited recording subject to release to the public, by the Town of Bethel.

So, a determination needed to be made for whether or not the excluded portion of the video is a public record within the meaning of§§1-200(5) and 1-210(a), G.S.

The Freedom of Information Commission (FOIC) has ruled yes, a citizen has that right and the town has to release an unedited copy, if asked.

The FOIC stated, in its final ruling, in part (see full ruling at the end of this article):

  • “Section l-210(a), G.S., provides, in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, … or (3) receive a copy of such records in accordance with section 1-212. (Emphasis added.)”

Also:

–It is therefore found that the excluded portion of the requested video is not exempt from disclosure pursuant to §1-210(b)(4), G.S.

–Based upon all of the foregoing, it is concluded that the respondents violated §§1- 210(a) and 1-212(a), G.S., by failing to provide to the complainants a copy of the requested unedited video recording of the March 8th meeting.

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TOWN OF BETHEL REFUSAL TO RELEASE DIGITAL FILE

The Town of Bethel delayed releasing this Planning & Zoning Commission (P&Z) digitally recorded file of the March 8, 2022 P&Z meeting to the public, since this FOI ruling was made, during our recent attempts to obtain it.

We first made several (unsuccessful) attempts to obtain it from the Land Use / Planning & Zoning office. We were told Town Planner Elizabeth (Beth) Cavagna was “in a meeting” by Secretary Nancy LoBalbo, who promised to call us back either way, but never did, and neither did Cavagna. Other subsequent attempts to obtain this file went to voicemail.

Also, upon contacting First Selectman Dan Carter on Feb 21st, he said he’d “have to check with the town attorney” and that he thought we had to obtain the file through Town Attorney Martin Lawlor, even though we told him about the FOIC ruling saying the town had to release the file to the public. He said he didn’t have he recording. He did promise to get back to us.

Today, February 23rd, as we are writing this article, Carter informed us we can pick up the file.

We do not yet have any information as to what will happen to any parties involved due to this incident.)

(FYI: We are releasing this important article now and will update this article shortly with further information.)

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THE FOIC COMPLAINT

The FOI complaint was filed in 2022 by Bethel residents and local business owners Laurel and Timothy Draper against the First Selectman, Town of Bethel; Chair, Planning & Zoning Commission, Town of Bethel; Planning & Zoning Commission, Town of Bethel; and Town of Bethel,

The Drapers submitted this FOIC complaint in 2022 when the Town refused to give them a a copy of the original, unedited version of the March 8, 2022, Planning & Zoning Commission meeting, when asked on March 9, 2022.

The Drapers attended two FOIC hearings along with Bethel Town Planner Elizabeth (Beth) Cavagna, and Attorney Martin Lawlor, representing Cavagna and the rest of the respondents, on Aug. 16, 2022 and Feb. 8, 2023, and The Freedom of Information Commission (FOIC) has just ruled in favor of the Drapers, that indeed yes, the town must give them a copy of the ORIGINAL (unedited) P&Z meeting file.

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THE “HOT MIC” INCIDENT

During a Bethel Planning & Zoning Commission meeting on March 8, 2022, a video recorder for the March 8, 2022 P&Z meeting was accidentally left on during a ten minute meeting break, which is not the norm. This “hot mic” then captured words allegedly said by Bethel Town Planner Elizabeth (Beth) Cavagna to others, that were “unflattering” about a Bethel business owner Timothy Draper, who appears before the Commission often for his building projects.

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OBTAINING THE VIDEO FILE

When Bethel business owner Laurel Draper, Mr. Draper’s wife, attempted to obtain an original copy of the Planning & Zoning Commission meeting recording the next day, March 9, 2022, after her husband witnessed the incident on Zoom, she was denied access to it by the (former) First Selectman Matthew Knickerbocker and Town Attorney Martin Lawlor. She wanted a copy (or permission to at least view it) of the original unedited version of the recording. The file being requested is the section that included the recording on the “hot mic” before someone removed that portion that allegedly contained negative words about Timothy Draper, not the video eventually posted in the town YouTube channel, in which that “break” section had been allegedly illegally removed.

When unable to obtain the unedited original recording, Bethel business owners Laurel and Timothy Draper then placed an FOI complaint against the “Town of Bethel First Selectman, Town of Bethel; Chair, Planning and Zoning Commission, Town of Bethel; Planning and Zoning Commission, Town of Bethel; and Town of Bethel” regarding this incident that occurred on March 8, 2022.

According to FOIC documents, “An evidentiary hearing of the Freedom of Information Commission in the following matter was held on August 16, 2022, in the Freedom of Information Hearing Room, 165 Capitol Avenue, Hartford, Connecticut. Due to the COVID-19 pandemic and the state’s response to it, the hearing was conducted via video conference.” A follow up meeting was held on on February 8, 2023, in this matter.

Elizabeth (Beth) Cavagna, who was present at the Aug. 16th hearing, did not deny saying “negative” words about Mr. Draper, when it was discussed by the hearing Attorney C. Zack Hyde, but in fact, Cavagna told him she “recused” herself from any future meetings having to do with the Drapers (due to this inappropriate incident).

Also present, besides Cavagna, was Dave McCollum, was Town Attorney Martin Lawlor, “representing the responders,” he said. Timothy and Laurel Draper were also present, each representing themselves.

The hearing attorney, C. Zack Hyde, asked both parties to each write a statement to him, describing why they thought the file did or did not have to be released, in order for him to make his decision about this case at a later date (Feb. 8).

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A final decision by the FOIC was as follows:

FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Laurel and Timothy Draper,

Complainants

against

First Selectman, Town of Bethel; Chair, Planning and Zoning Commission, Town of Bethel; Planning and Zoning Commission, Town of Bethel; and Town of Bethel,

Respondents

FINAL DECISION

Docket #FIC 2022-0148

February 8, 2023

The above-captioned matter was heard as a contested case on August 16, 2022, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint. Due to the COVID-19 pandemic and the state’s response to it, the hearing was conducted through the use of electronic equipment (remotely) pursuant to §149 of Public Act 21-2 (June Special Session), as amended by §1 of Public Act No. 22-3.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

  1. The respondents are public agencies within the meaning of §1-200(1), G.S.
  • It is found that, on March 9, 2022, the complainant made an oral request for a copy of the unedited video of the respondent Planning and Zoning Commission’s March 8, 2022 meeting (the “unedited video”).
  • It is found that, by email dated March 23, 2022, the respondents denied the complainant’s request for the unedited video.
  • By letter of complaint, dated April 6, 2022, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of lnformation (“FOI”) Act by failing to provide the requested unedited video, described in paragraph 2, above.
  • Section 1-200(5), G.S., provides:

“[p]ublic records or files” means any recorded data or information relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under 1-218, whether such data or information be handwritten, typed, tape-recorded, videotaped, printed, photostated, photographed or recorded by any other method. (Emphasis added.)

  • Section l-210(a), G.S., provides, in relevant part:

[e]xcept as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to (1) inspect such records promptly during regular office or business hours, … or (3) receive a copy of such records in accordance with section 1-212. (Emphasis added.)

  • Section 1-212(a), G.S., provides, in relevant part: “[a]ny  person applying  in writing shall receive, promptly upon request, a plain, facsimile, electronic or certified copy of any public record.”
  • It is found that on March 8, 2022, the respondent Planning and  Zoning Commission (the “P&Z Commission”) held a meeting (the “March 8th meeting”), which permitted the public to attend the meeting in person and also provided remote access to the meeting through a Zoom link.1
  • It is found that during the March 8th meeting, Commissioner Kitty Grant announced a recess. It found that during such recess, Beth Cavagna, the Town Planner and Land Use Department Director, made certain  negative  comments  about the complainant, Timothy  Draper, to a member of her staff, in the presence of another member of the P&Z  Commission.  It  also found that, although Grant had announced a recess, her microphone remained on, and the negative comments were recorded and heard by those individuals who were accessing the March 8th meeting remotely.
  1. It is found that the respondents posted an edited version of the video recording of the March 8th meeting to the Town of Bethel’s YouTube website. It is found that such edited version excluded the recessed portion of the meeting, including the negative comments about Draper.
  1. It is found that the requested unedited video is maintained and kept on file by the respondents’ IT Department.
  1. At the hearing, and in their post-hearing brief, the respondents argued that the excluded portion of the video is not a public record within the definition of§ 1-200(5), G.S., because it does not relate to the conduct of the public’s business.

1 Zoom is a communication platform that allows users to connect with video, audio, phone and chat using an internet connection. See ZOOM, https://zoom.us, (last visited Dec. 20, 2022).

  1. The complainants argued, on the other hand, that the P&Z Commission failed to properly recess the March 8th meeting, in violation of Robert’s Rules of Order, and therefore, the comments were part of the P&Z Commission’s meeting. The Commission notes that it does not have jurisdiction over Robert’s Rules of Order. See Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571,577 (2007). Moreover, whether the meeting was properly recessed under Roberts Rules of Order is not relevant to a determination of whether the excluded portion of the video is a public record within the meaning of§§1-200(5) and 1-210(a), G.S.
  1. With regard to the respondents’ argument set forth in paragraph 12, above, it is found that, in her position as Town Planner and Land Use Department Director, Cavagna assists and advises the P&Z Commission in carrying out its official duties. As found in paragraph 9, above, Cavagna’s comments were made to another staff member who assists the P&Z Commission and in the vicinity of one of the members of the P&Z Commission. It is found that such comments were made in the official meeting place of the March 8th meeting, and such comments were recorded by the respondents’ own equipment. It is further found that Timothy Draper is a developer known to the P&Z Commission, who regularly appears before the P&Z Commission on land use matters.
  1. Based upon the findings in paragraph 14, above, it is concluded that the excluded portion of the video contains information “relating to the conduct of the public’s business … retained by a public agency” within the meaning of §1-200(5), G.S.
  1. It is therefore concluded that the excluded portion of the video constitutes a public record within the meaning of§§1-200(5) and 1-210(a), G.S.
  1. In their post-hearing brief, the respondents claimed, alternatively, that the comments contained in the excluded portion of the video are exempt from disclosure pursuant to §1- 210(b)(4), G.S.
  1. Section 1-210(b)(4), G.S., provides that disclosure is not required of”[r]ecords pertaining to strategy and negotiations with respect to pending claims or pending litigation to which the public agency is a party until such litigation or claim has been finally adjudicated or otherwise settled… “
  1. The phrase “pending claims” as defined in §1-200(8) means:
  • written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief is not granted.
  • The phrase “pending litigation” as defined in §1-200(9) means:

(A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the

intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of action to enforce or implement legal relief or a legal right.

  • The respondents argued that the complainants had threatened legal action against the respondents, and as part of the respondents’ legal strategy to mitigate potential damages from possible future litigation, they withheld Cavagna’s negative comments concerning Draper.
  • It is found, however, that Cavagna’s comments,  themselves,  do  not  pertain to “strategy  or  negotiations” and, further, that such comments  do  not  constitute a “pending  claim” or “pending litigation”, as those terms are defined in  the  FOI Act (see paragraphs 19 and 20, above). It is therefore found that Cavagna’s comments do not pertain “to strategy or negotiations with respect to pending claims or pending litigation” within the meaning of §1-210(b)(4), G.S.2
  • It is therefore found that the excluded portion of the requested video is not exempt from disclosure pursuant to §1-210(b)(4), G.S.
  • Based upon all of the foregoing, it is concluded that the respondents violated §§1- 210(a) and 1-212(a), G.S., by failing to provide to the complainants a copy of the requested unedited video recording of the March 8th meeting.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

  1. Forthwith, the respondents shall provide a copy of the unedited video of the March 8th meeting to the complainants, free of charge.
  • Henceforth, the respondents shall strictly comply with §§1-210(a) and 1-212(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of February 8, 2023.

[signature]

Cynthia A. Cannata

Acting Clerk of the Commission

2 The Commission notes that a desire to mitigate damages from potential litigation does not create an independent exemption from disclosure for what are otherwise public records.

PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

LAUREL AND TIMOTHY DRAPER, 48 Aunt Pattys Lane West, Bethel, CT 06801

FIRST SELECTMAN, TOWN OF BETHEL; CHAIR, PLANNING AND ZONING COMMISSION, TOWN OF BETHEL; PLANNING AND ZONING COMMISSION,

TOWN OF BETHEL; AND TOWN OF BETHEL, c/o Attorney Martin J. Lawlor, 99 Greenwood Avenue, Bethel, CT 0680I

[signature]

Cynthia A. Cannata

Acting Clerk of the Commission

FIC 2022-0148/FD/CAC/2/8/2023

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We will update this article as the topic progresses.

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UPDATE February 24, 2023, 10:57am:

We have obtained a copy of the unedited video of the March 8, 2022 Planning & Zoning meeting. This copy contains the section during the short recess in which “negative” comments were made by Town Planner Beth Cavagna allegedly to other Commissioners, employees and individuals present, also including people viewing on Zoom, about Bethel business owner Timothy Draper.

(Note: Not all comments are decipherable and we have indicated same, but some are also very clear, so we are including the ones we can hear. We have done our best to transcribe but are not liable for minor mistakes, if any. You can listen to the actual digital file for yourself, to interpret exact words, recommended.)

The conversation between individuals (the parts we can hear) during the meeting recess, that were being recorded, begins:

Elizabeth (Beth) Cavagna shouts, “Am I getting my laptop back?

Assistant Dave McCollum says, “Yes you are Beth.”

McCollum is also heard apologizing for something (the earlier part of the conversation is undecipherable) saying, “I’m sorry.”

We then hear a female voice whispering, (not Cavagna) saying, “Just get over it. It’s not …[undecipherable]… just get over it.”

Another voice says, “STOP! Stop.”

McCollum said, “I had every intention of being … [undecipherable]”

He is suddenly cut off by Cavagna saying, “Chill!”

Pause…

Then Cavagna said, “Ah man, Ken we had Draper.

Male voice (Kenny) says, “Really?”

Cavagna said, “Yes, Kenny… “

Again a female voice says, “So what is going on?”

Cavagna said, “He’s texting me, saying, ‘tell him to mute you.’ Everybody else was muted.”

Cavagna said, [undecipherable] so we could hear Draper burp, and then like, you know, making all noises, and all this, ‘Draperisms’ I call ’em you know, and all that stuff. So he kept texting me and texting me and I’m like, you know ….

Cavagna said, “And Laurel, was on but she wasn’t muted. So he’s flipping out about that now too.”

Male voice said, “Why is Tim following you, is he looking for new tricks? Things to learn?”

Cavagna said, “No he’s looking for ways to screw the town.” … “No what he’s trying to do is catch me doing something, or being discriminating. Because I’m accu…[undecipherable] …”

Male voice said, “because you’re treating him differently [undecipherable]…”

Cavagna replied, “Yeah I’m treating him differently.”

Male voice (McCollum) said, “I think we’re still recording.”

(Female laugh in background.)

Cavagna said, “OK so we can edit it tomorrow, it’s not a problem.”

Pause

Female voice said, “I think I …[indecipherable]”

Cavagna said, “I’m on mute.”

Female voice said, “No.”

Editor note: Please know, we spoke to Laurel Draper and she said her husband Tim did not text Ms. Cavagna that night during the meeting.

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UPDATE Feb. 24, 2023, 6:31PM EDT

SUMMARY and THE LAW

Despite all the negative comments about Mr. Draper by Ms. Cavagna, her most telling comment was when she said, “OK so we can edit it tomorrow, it’s not a problem” regarding the comments made on the hot mic. This leads us to believe that she intentionally played a part in the illegal removal of parts of a recorded meeting and thus displayed an inaccurate vdeo recording to the public.

View laws below:

From the United States Department of Justice Archives

1663. PROTECTION OF GOVERNMENT PROPERTY — PROTECTION OF PUBLIC RECORDS AND DOCUMENTS

The taking of a public record or document is prohibited by 18 U.S.C. § 641. The destruction of such records may be reached under 18 U.S.C. §  1361. In both instances, however, proving a $100 loss, the prerequisite to a felony conviction, may be difficult. Thus, neither of these statutes adequately protects government records.

The necessary measure of protection for government documents and records is provided by 18 U.S.C. § 2071. Section 2071(a) contains a broad prohibition against destruction of government records or attempts to destroy such records. This section provides that whoever: willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office may be punished by imprisonment for three years, a $2,000 fine, or both.

There are several important aspects to this offense. First, it is a specific intent crime. This means that the defendant must act intentionally with knowledge that he is violating the law. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972). Moreover, one case has suggested that this specific intent requires that the defendant know that the documents involved are public records. See United States v. DeGroat, 30 F. 764, 765 (E.D.Mich. 1887).

The acts proscribed by this section are defined broadly. Essentially three types of conduct are prohibited by 18 U.S.C. § 2071(a). These are: (1) concealment, removal, mutilation, obliteration or destruction of records; (2) any attempt to commit these proscribed acts; and (3) carrying away any record with the intent to conceal, remove, mutilate or destroy it. It should be noted that all of these acts involve either misappropriation of or damage to public records. This has led one court to conclude that the mere photocopying of these records does not violate 18 U.S.C. § 2071. See United States v. Rosner, 352 F. Supp. 915, 919-22 (S.D.N.Y. 1972).

Subsection (b) of 18 U.S.C. § 2071 contains a similar prohibition specifically directed at custodians of public records. Any custodian of a public record who “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys (any record) shall be fined not more than $2,000 or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.” While the range of acts proscribed by this subsection is somewhat narrower than subsection (a), it does provide the additional penalty of forfeiture of position with the United States.

Title 18 contains two other provisions, of somewhat narrower application, which relate to public records. Section 285 prohibits the unauthorized taking, use and attempted use of any document, record or file relating to a claim against the United States for purposes of procuring payment of that claim. Section 1506 prohibits the theft, alteration or falsification of any record or process in any court of the United States. Both of these sections are punishable by a $5,000 fine or imprisonment for five years.

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