FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Susan G. Kniep, Wanda Franek
and Marylee Hickey,
Complainants
against Docket
#FIC 87-250
Democratic Members of the
East Hartford Town Council, Jose Ramirez, Assistant Corporation Counsel of the
Town of East Hartford and Mayor of the Town of East Hartford,
Respondents January
13, 1988
The above-captioned matter was heard as a contested case
on October 1, 1987, at which time the complainants and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint. At hearing,
the complainants withdrew their complaint as it related to Patricia Gately, who
was not a member of the East Hartford town council at the time of the actions
complained of.
After consideration of the entire record, the following
facts are found:
1. The
respondents are public agencies within the meaning of §1-18a(a), G.S.
2. By letter
of complaint filed with the Commission on September 8, 1987 the complainants
alleged as follows concerning an August 18, 1987 meeting of the East Hartford
town council at which the council voted to approve new amusement license fees:
a.
That the matter of changing amusement license fees
was
neither included in the agenda of the meeting nor added to the agenda by a
two-thirds vote;
b. That during a recess in the meeting the
respondent
assistant
corporation counsel ("respondent counsel") met improperly in closed
session with the respondent Democratic members of the East Hartford town
council ("respondent Democrats"); and
Docket #FIC 87-250 Page
Two
c.
That the respondent Democrats, the respondent
counsel
and/or the respondent mayor may have met, without public notice, prior to the
meeting "to orchestrate the approval of the adopted fee."
3. The
complainants asked that the East Hartford town council's reduction of the
license fee be declared null and void and that the Commission impose civil
penalties against the respondents.
4. It is
found that on August 6, 1987, the subcommittee on fees of the East Hartford
town council met to discuss and hear public comment concerning a $10 license
fee imposed upon movie theatres and adult book stores pursuant to local ordinance
#5-2(3)a. At the conclusion of the
meeting the two subcommittee members present voted to refer the ordinance back
to the town council's ordinance committee prior to the setting of any new fees,
and to continue to charge the existing $10 fee.
5. In an
August 6, 1987 memorandum to the chairman of the subcommittee on fees the
respondent mayor recommended that the license fee be reduced to $1.50 per
performance, retroactive to July 1, 1987.
On August 11, 1987 the respondent mayor forwarded copies of his August
6, 1987 memorandum to the members of the East Hartford town council.
6. The East
Hartford town council held a meeting August 18, 1987, the agenda for which
included the item "Reports of Boards, Commissions, and Committees -
A. Report from Subcommittee on
Fees." Also included in the agenda
was the item "Referral to Ordinance Committee: 1. Sec. 5-2/Amusement
License Fees."
7. At the
August 18, 1987 meeting of the East Hartford town council the subcommittee on
fees presented its recommendation that the Town of East Hartford continue
charging the $10 license fee pending review by the ordinance committee. The chairman of the subcommittee then moved
"that the fees be changed from $10 per performance to $1.50 per
performance retroactive."
Following discussion of the matter the East Hartford town council voted
4-3 to reduce the fee from $10 to $1.50 per performance. The three complainants voted against the
reduction.
8. The
complainants claim that the agenda of the August 18, 1987 meeting gave no notice
to the public that the license fees would be reduced, and that by voting to do
so the respondent Democrats violated §1-21(a), G.S.
Docket #FIC 87-250 Page
Three
9. It is
found that the agenda for the East Hartford town council's August 18, 1987
meeting gave fair notice to the public that the matter of license fees would be
before it and that there existed the possibility that action would be taken
concerning the fees.
10. It is
concluded that the respondent Democrats' August 18, 1987 vote to reduce
amusement license fees did not violate §1-21(a), G.S.
11. It is
found that during the August 18, 1987 meeting a recess was called to allow the
respondent counsel to research whether a vote of the 5 Democrats present
against the 3 Republicans present constituted a two-thirds vote within the
meaning of §1-21(a), G.S. During such
recess the respondent Democrats met in closed session.
12. Upon
returning from his office the respondent counsel stopped by the room in which
the respondent Democrats were gathered and reported his conclusion that a 5-3
vote did not, in fact, constitute a two-thirds vote. There was conflicting testimony regarding the duration of the
respondent counsel's stay in the closed session and the issue of whether 4 or 5
of the respondent Democrats were present at the time of the respondent town
counsel's arrival.
13. The
complainants claim that the respondent counsel's presence in the closed session
transformed it from a caucus to a meeting, within the meaning of §1-18a(b),
G.S., and that holding such meeting in closed session violated §1-21(a), G.S.
14. It is
found that prior to the arrival of the respondent counsel one of the respondent
Democrats left the closed session.
15. The
respondents claim that the participation of the respondent counsel in the
closed session lasted only a few seconds, that it consisted of a brief
announcement of his conclusions on the legal issue and that the chairman of the
town council advised him to relay immediately to the complainants his conclusion,
which he did.
16. The
respondents further claim that because only four of the five respondent
Democrats remained in the closed session at the time of the respondent
counsel's arrival, less than a quorum was present and the closed session was
therefore not a meeting within the meaning of §1-18a(b), G.S.
17. Finally,
the respondents claim that the session was not "closed" because the
door to the room remained open following the respondent counsel's entry.
Docket #FIC 87-250 Page
Four
18. It is found
that to the extent that the respondent town counsel attended and participated
in the respondent Democrats' August 18, 1987 closed session, such session was
not a caucus within the meaning of §1-18a(b), G.S.
19. It is
further found that whether the door was open or closed is meaningless, given
the fact that the gathering was held in a room to which neither the public nor
the complainants were admitted.
20. It is
found, however, that the respondent counsel's brief comment to four of the
respondent Democrats did not constitute a hearing or other proceeding of a
public agency, nor was it a convening or assembly of or communication by or to
a quorum of the East Hartford town council.
21. It is
concluded that the respondent counsel's comment to the four Democrats was not a
meeting within the meaning of §1-18a(b), G.S.
22. The
Commission notes that the respondent counsel's comments to the respondent
Democrats while convened in a closed session created an appearance of
impropriety and raised legitimate questions in the minds of the complainants.
23. It is
found that no evidence was offered at hearing that any of the respondents met
prior to August 18, 1987, without notice, to arrange a reduction in the
amusement license fee.
The following order by the Commission is hereby
recommended on the basis of the record concerning the above-captioned
complaint.
1. The
complaint is hereby dismissed.
2. The
Commission cautions the respondents that the above findings and conclusions are
strictly limited to the facts of the case and should in no way be construed as
an endorsement of the manner in which the respondent counsel communicated with
the respondent Democrats. The
respondents are further advised that the absence of a quorum in no way
guarantees that a gathering is not a meeting within the meaning of §1-18a(b),
G.S.
Approved by order of the Freedom of Information
Commission at its regular meeting of January 13, 1988.
Catherine
H. Lynch
Acting
Clerk of the Commission