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OLR Bill Analysis
sHB 6193
AN ACT SUBJECTING CERTAIN NONSTATE ENTITIES THAT
SERVE A GOVERNMENTAL FUNCTION TO THE FREEDOM OF
INFORMATION ACT AND THE CODES OF ETHICS.
SUMMARY
This bill subjects certain (1) entities that serve a governmental
function, as defined by the bill, to the Freedom of Information Act
(FOIA) and (2) individuals appointed to these entities to the state Code
of Ethics for Public Officials.
Under the bill, an entity serves a governmental function if, (1) with
certain exceptions, any of its members are "public officials" under the
state Code of Ethics for Public Officials; (2) it is authorized to spend
public funds; or (3) it receives public funds as part of its operations.
EFFECTIVE DATE: October 1, 2021
GOVERNMENTAL FUNCTIO N
Under the bill, an entity serves a governmental function if it meets
one of the three criteria outlined above. With respect to the first
criterion, an entity serves a governmental function if its board of
directors or corporate governance includes any of the following
members:
1. a statewide elected officer or member or member-elect of the
legislature,
2. a person appointed to any office in any branch of state
government by the governor or one of his appointees,
3. a public member or representative of the teachers' unions or
state employees' unions appointed to the Investment Advisory
Council, 2021HB-06193-R000497-BA.DOCX
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4. a quasi-public agency member or director, or
5. the governor's spouse.
These individuals (other than judges and members of advisory
boards) are all "public officials" under the Code of Ethics for Public
Officials (see below). (Presumably, they must serve on the entity's
board in their official capacity to trigger the bill's requirements.)
CODE OF ETHICS
By law, the Code of Ethics for Public Officials applies to state
employees and specified public officials. Among other things, the code
prohibits covered individuals from having any financial interest in a
business that is in substantial conflict with their official duties (CGS §
1-84(a)).
Under existing law, "public officials" includes each of the
individuals listed above (other than judges and members of advisory
boards), plus any person appointed or elected by the legislature or a
member of either house. The bill additionally classifies as "public
officials" certain members of entities that are not state agencies or
quasi-public agencies but that serve a governmental function as
defined in the bill. Specifically, it applies to members of these entities'
boards who are appointed by the governor or one of his appointees, a
statewide officer, or a legislator.
FOIA
Among other things, FOIA requires state and municipal public
agencies and quasi-public agencies, with limited exceptions, to (1)
make their records and files available to the public for inspection and
copying; (2) post their meeting agendas and minutes; and (3) allow the
public to attend their meetings (CGS §§ 1-210 & 1-225).
Under current law, FOIA applies to non-public entities to the extent
they are deemed to be the functional equivalent of a public agency
(CGS § 1-200(1)(B)). To determine whether a person is the “functional
equivalent” of a public agency, courts and the Freedom of Information
Commission (FOIC) apply a four-part test established by the 2021HB-06193-R000497-BA.DOCX
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Connecticut Supreme Court in Board of Trustees of Woodstock Academy v.
FOI Commission, 181 Conn. 544 (1980). One component of this test is
whether the entity performs a governmental function (see
BACKGROUND).
The bill expands FOIA's definition of public agency to include non-
public entities that perform a governmental function, as defined by the
bill (see above). (The bill's definition of "governmental function" is
broader than the definition used by courts and FOIC for the functional
equivalent test (see BACKGROUND).)
The bill additionally classifies, as the "functional equivalent" of a
public agency, the same entity board members whom it defines as
"public officials" under the Code of Ethics for Public Officials (see
above). Specifically, it applies to members (1) appointed by the
governor or one of his appointees, a statewide officer, or a legislator
and (2) serving on entities that are not state agencies or quasi-public
agencies but that serve a governmental function as defined in the bill.
(The legal effect of this provision is unclear.)
BACKGROUND
Functional Equivalent Test
FOIA's functional equivalent test consists of the following factors:
1. whether the entity performs a governmental function,
2. the level of government funding,
3. the extent of government involvement or regulation, and
4. whether the entity was created by government (Woodstock,
supra).
When it established the test, the Connecticut Supreme Court stated
that these criteria should be applied on a case-by-case basis. In a later
case, the court held that an entity need not meet all four criteria in
order to be held to be a functional equivalent. Rather, “[a]ll relevant
factors are to be considered cumulatively, with no single factor being 2021HB-06193-R000497-BA.DOCX
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essential or conclusive” (Connecticut Humane Society v. FOI Commission,
218 Conn. 757, 761 (1991)).
Governmental Function: Common Law
In applying the functional equivalent test in a 1998 case, the
Appellate Court held that “Performing a government service pursuant
to contract does not make an entity a public agency subject to
[FOIA]…. The key to determining whether an entity is a government
agency or merely a contractor with the government is whether the
government is really involved in the core of the program" (Domestic
Violence Services of Greater New Haven, Inc. v. Freedom of Information
Commission, 47 Conn. App. 466 (1998)).
Governmental Function: Statutory Requirement
Separate from the functional equivalent test, FOIA also requires that
each contract exceeding $2.5 million between a public agency and a
person for the performance of a governmental function provide that
the public agency is entitled to receive a copy of records and files
related to the performance of the governmental function (CGS § 1-218).
For purposes of this requirement, "governmental function"
generally includes a public agency program's administration or
management by a person that, among other things, participates in
formulating governmental policies or decisions connected to the
program's administration or management. It does not include the mere
provision of goods or services to a public agency without delegated
program management or administration responsibilities (CGS § 1-
200(11)).
COMMITTEE ACTION
Government Administration and Elections Committee
Joint Favorable Substitute
Yea 18 Nay 1 (03/31/2021)