FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
H. Richard Borer, Sr.,
Complainant
against Docket
#FIC 88-19
West Haven Planning and Zoning Commission and Mayor of West Haven's
Solid Waste Task Force,
Respondents September
14, 1988
This matter originally
was heard as a contested case on March 3, 1988. The hearing officer's report issued on March 16, 1988, was
administratively withdrawn on March 22, 1988 for failure to name a necessary
party. An amended notice of hearing and
order to show cause was issued on April 5, 1988 and the above-captioned matter
was heard as a contested case on May 17, 1988, at which time the complainant
and the respondents appeared, stipulated to certain facts and presented
testimony, exhibits and argument on the complaint. A new hearing officer's report was issued on June 2, 1988 and was
scheduled to be voted on by the Commission at its August 10, 1988 meeting. At its meeting of July 27, 1988, the
Commission erroneously voted on and unanimously adopted the hearing officer's
report. The Commission, at its August
10, 1988 meeting, voted to reopen and to reconsider the case. At that time, the hearing officer
unilaterally withdrew his June 2, 1988 report.
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. The Commission takes administrative notice
of the letter of complaint dated January 15, 1988 and filed with it on January
19, 1988, in which the complainant alleged that the respondents violated the
Freedom of Information Act in that:
a.
They failed to comply with the Commission's orders in Docket #FIC 87-219
and Docket #FIC 87-220.
Docket #FIC 88-19 Page 2
b.
The respondent commission held a regular meeting on January 12, 1988,
less than thirty days after filing a schedule of its regular meetings for the
ensuing year.
c.
The minutes of the respondent commission's November 17, 1987 special
meeting failed to reflect the votes taken in executive session at that meeting.
3. The complainant requested the votes, if any,
taken at the respondent commission's January 12, 1988 meeting be declared null
and void.
4. The respondents claim:
a.
They have complied with the Commission's orders in Docket #FIC 87-219
and Docket #FIC 87-220.
b.
The respondent commission properly held a regular meeting on January 12,
1988, thirty days after filing a schedule of its regular meetings for the
ensuing year.
c.
The Commission lacks jurisdiction over that portion of the complaint
concerning the November 17, 1987 special meeting because the complaint was not
filed within the time limits set forth in §1-21i(b), G.S.
5. The respondents requested the imposition of
a civil penalty against the complainant.
6. The Commission takes administrative notice
of the testimony and exhibits presented at the hearing held on March 3, 1988.
7. At the hearing held on March 3, 1988, the
complainant specifically alleged that the respondent task force failed to
comply with paragraphs 2 and 3 of the Commission's order in Docket #FIC 87-220.
8. Paragraphs 2 and 3 of the Commission's order
in Docket #FIC 87-220 state:
a. "The
respondent shall provide the complainant with copies of all existing records
which reflect what was discussed at the July 14, 1987 and the July 16, 1987
executive sessions. If no such records
exist, the respondent, within one week of the final decision in this matter,
shall provide the complainant with an affidavit so stating."
Docket #FIC 88-19 Page 3
b.
"If no records reflecting what was discussed at the July 14, 1987
and July 16, 1987 executive sessions exist, the respondent, within two weeks of
the final decision in this matter, also shall provide a memorandum reflecting,
to the fullest extent possible, the discussions and occurrences at the
executive sessions."
9. It is found that on February 24, 1988, the
respondent task force provided the complainant with copies of the existing
minutes of the July 14, 1987 and July 16, 1987 executive sessions.
10. It is found the complainant already had
copies of the records described in paragraph 9, above, prior to filing his
complaint in Docket #FIC 87-220.
11. It is found the records described in
paragraph 9, above, only reflected the purposes of the executive sessions and
the fact that no agreement was reached between the City of West Haven and Solid
Waste Disposal, Inc.
12. It is found the records described in
paragraph 9, above, failed to reflect what was discussed at the July 14, 1987
and July 16, 1987 illegal executive sessions within the meaning of paragraph 2
of the Commission's order in Docket #FIC 87-220.
13. It is found, however, that the respondent
task force appended to the minutes of its July 31, 1987 meeting certain records
reflecting what was discussed at the July 14, 1987 and July 16, 1987 executive
sessions.
14. It also is found that at the hearing held on
May 17, 1988, the respondent task force provided the complainant with a copy of
the records described in paragraph 13, above.
15. It further is found the respondent task
force failed to provide the complainant with a copy of the records described in
paragraph 13, above, within the time limits set forth in paragraph 3 of the
Commission's order in Docket #FIC 87-220.
16. It is concluded the respondent task force
failed to comply with the Commission's order in Docket #FIC 87-220 within the
meaning of §1-21k(b), G.S.
17. With respect to the claim in paragraph 2b,
above, it is found the respondent commission filed a 1987 meeting schedule with
the city clerk on January 28, 1987. The
1987 meeting schedule indicated that the respondent commission would hold a
public hearing on January 12, 1988 and a regular meeting on January 26, 1988.
Docket #FIC 88-19 Page 4
18. It is found that the respondent commission
filed a 1988 meeting schedule with the city clerk on December 9, 1987. The 1988 meeting schedule contained the
dates for its public hearings and the dates for its regular meetings.
19. At the March 3, 1988 hearing, the parties
disputed the date on which the 1988 meeting schedule was filed with the city
clerk. The respondents alleged that the
complainant tampered with a copy of the 1988 meeting schedule he received from
the city clerk. The Commission notes
that it lacks jurisdiction over that issue.
20. It is found the 1988 meeting schedule
indicated the respondent commission would hold a public hearing on January 12,
1988 and a regular meeting on January 26, 1988.
21. It is found the respondent commission held a
public hearing on January 12, 1988.
22. It also is found the respondent commission
posted a "call for a public hearing," indicating that it would hold a
public hearing on January 12, 1988 at 7:30 p.m.
23. It is concluded the respondent commission
properly noticed its January 12, 1988 public hearing within the meaning of
§1-21(a), G.S.
24. It is found, however, that subsequent to the
public hearing, the respondent commission held another meeting, commencing at
11:25 p.m.
25. It is found the respondent commission filed
an agenda for its second January 12, 1988 meeting described in paragraph 24,
above, indicating that it would hold a regular meeting on January 12, 1988 at
7:30 p.m.
26. It is found the respondent commission's
second January 12, 1988 meeting described in paragraph 24, above, was a special
meeting because it was held on a date and at a time other than those specified
in its 1988 schedule of regular meetings.
27. It is found the respondent commission failed
to post proper notice of its second January 12, 1988 special meeting described
in paragraph 24, above. The respondent
commission should have noticed the meeting as a special meeting and should have
convened the meeting at the time specified therein.
28. Since the second January 12, 1988 meeting
was not a regular meeting, the Commission declines to address the issue of
whether the respondent commission held a regular meeting within 30 days after
filing a schedule of its regular meetings.
Docket #FIC 88-19 Page 5
29. It is concluded, however, that the
respondent commission technically violated §1-21(a), G.S., by failing to give
the public proper notice of its second January 12, 1988 special meeting
described in paragraph 24, above.
30. The Commission declines to declare the votes
taken at the respondent commission's second January 12, 1988 special meeting
null and void.
31. The Commission suggests that the respondent
commission might have avoided some of the confusion surrounding its January 12,
1988 meetings by specifying in its notice of special meeting that it would
consider other items of business after holding a public hearing.
32. At the hearing on March 3, 1988, the
Commission ruled that it lacked jurisdiction over an alleged violation
concerning the conduct of the respondent commission's November 17, 1987 meeting
because the letter of complaint was not filed within the prescribed time limits
set forth in §1-21i(b), G.S.
33. It is found, however, that the Commission
has jurisdiction over that portion of the complaint concerning the respondent
commission's failure to record the votes taken in executive session at its
November 17, 1987 special meeting in the minutes of that meeting.
34. Pursuant to §1-21j-36 of the Regulations of
Connecticut State Agencies, the Hearing Officer, on August 12, 1988, designated
the minutes of the respondent commission's November 17, 1987 special meeting as
an after-filed exhibit, Complainant's Exhibit D.
35. It is found that the respondent commission
adopted incorrect minutes of its November 17, 1987 special meeting at its
second meeting held on January 12, 1988.
36. It is found that the minutes of the November
17, 1987 special meeting indicated that the respondent commission convened in
executive session to discuss pending litigation and that "votes were
taken, no decisions were made."
37. It is found, however, that no votes were
taken at the executive session and the minutes of the respondent commission's
November 17, 1987 meeting were incorrect.
38. At the March 3, 1988 hearing, the secretary of
the respondent commission and the Deputy Corporation Counsel, by affidavits,
indicated that the minutes of the respondent commission's November 17, 1987
special meeting would be corrected at the upcoming meeting of the respondent
commission.
Docket #FIC 88-19 Page 6
39. It is concluded that the respondent
commission did not violate §1-21(a), with respect to the recording of votes in
the minutes of its November 17, 1987 special meeting.
40. The Commission declines to impose a civil
penalty against the complainant.
The following order by
the Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1. The respondent commission shall forthwith
provide the complainant with a copy of the corrected minutes of its November
17, 1987 special meeting.
2. Henceforth, the respondent commission shall
act in strict compliance with the requirements of §1-21(a), G.S., regarding
posting notices of special meetings.
3. The Commission cautions the respondent task
force that failure to comply with an order of the Commission could subject its
members to criminal penalties, pursuant to §1-21k(b), G.S., should this matter
be referred to the Office of the State's Attorney.
Approved by order of
the Freedom of Information Commission at its special meeting of September 14,
1988.
Catherine
H. Lynch
Acting
Clerk of the Commission