FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Mimi Hall and the Norwich Bulletin,

Complainants

against Docket #FIC 88-230

Norwich City Council, Norwich Corporation Counsel Konstant Morell, Roderick Arpin, Linda Becker, Michael Bohara, Robert Booth, Nancy DePietro, Mark Eaton, Louis Heller, Bonita Hong, Beverly Raymond, and Charles Witt,

Respondents May 24, 1989

The above-captioned matter previously was heard as a contested case on August 16, 1988. The Commission issued its Final Decision on November 2, 1988, concluding that the respondent Norwich City Council had violated §§1-18a(e) and 1-21(a), G.S., without reasonable grounds, and ordering the individual members of the respondent council named herein and corporation counsel Konstant Morrell to appear before the Commission to show cause why a civil penalty should not be imposed pursuant to §1-21i(b), G.S.

The above-captioned matter was then heard on December 16, 1988, at which time the complainants and all the respondents appeared and presented testimony, exhibits and argument on the complaint limited to the issue of why a civil penalty should not be imposed.

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

1. The named individual members of the respondent council are public agencies within the meaning of §1-18a(a), G.S.

2. At the hearing, the hearing officer denied the respondents' request that the hearing be stayed.

Docket #FIC 88-230 page two

3. The Commission takes administrative notice of its record and Final Decision issued November 2, 1988 In the Matter of a Complaint by Mimi Hall and the Norwich Bulletin against Norwich City Council and Norwich Corporation Counsel Konstant Morell, Docket #FIC 88-230.

4. The Commission also takes administrative notice of its record and Final Decision issued February 18, 1988 In The Matter of a Complaint by James R. Jakubowski against the Norwich City Council and Norwich Alderwoman Bonita Hong, Docket #FIC 87-297, in which Final Decision the Commission:

a. concluded that the respondent City Council violated §1-21(a), G.S., by not stating publicly the reason for an executive session in a way that clearly communicated it to the public; and

b. concluded that the respondent City Council violated §§1-18a(e) and 1-21(a), G.S., by discussing topics that are not permissible for an executive session.

5. It is found that in both this case and the Jakubowski case, above, the respondent council misled the public as to the purpose of its executive session, by failing to communicate the actual purpose of the executive session, and by stating an improper purpose for the executive session (in this case) or stating a proper purpose and then discussing matters outside the stated purpose (in Jakubowski, above).

6. It is found that, pursuant to the Commission's order in Jakubowski, above, a Commission staff attorney conducted a workshop at Norwich City Hall on the requirements of the Freedom of Information Act on May 4, 1988.

7. It is also found that Commission staff communicated to the respondent council prior to the May 4, 1988 workshop that that workshop was intended for the benefit of council members who were in office on May 4, 1988.

8. It is found that all of the named individual members of the respondent council attended the May 4, 1988 workshop, including those aldermen who were not members of the council at the time of the violations found in Jakubowski, above, except for the respondent Alderman Ronald Arpin.

Docket #FIC 88-230 page three

9. At the hearing, the members of the respondent council maintained that no civil penalty should be imposed against them because the membership of the council had changed between the violations found in Jakubowski, above, and the violations found in this case.

10. It is found that all of the members of the council named herein were aware of the violations found in Jacubowski, above, at the time of the violations found in this case.

11. It is concluded that a change in the membership of the council is neither reasonable grounds for the denial of a right under the Freedom of Information Act nor a showing of cause why a civil penalty should not be imposed.

12. At the hearing, the respondent Arpin maintained that no civil penalty should be imposed against him because he was not a party to Jakubowski, above, and he had not attended the May 4, 1988 workshop.

13. It is found that the respondent Arpin refused to attend the May 4, 1988 workshop because he had not been a member of the council at the time of the violations found in Jakubowski, above, and perceived the workshop as punishment.

14. It is concluded that deliberate ignorance of Freedom of Information Act requirements is neither reasonable grounds for the denial of a right under the Freedom of Information Act, nor a showing of cause why a civil penalty should not be imposed.

15. At the hearing, the respondent Arpin also maintained that no civil penalty should be imposed against him because he had relied on the opinion of the respondent Hong as president of the council as to the legality of the executive session.

16. It is concluded that reliance on the opinion of the president of the council for legal advice concerning the requirements of the Freedom of Information Act does not constitute a showing of cause why a civil penalty should not be imposed.

17. It is found that the named individual respondents offered no other testimony, exhibits or argument to show that the violations found in paragraphs 11 and 14 of the Final Decision in this matter issued November 2, 1988 were based upon reasonable grounds, or to show why a civil penalty should not be imposed for such violations.

Docket #FIC 88-230 page four

18. At the hearing, all of the respondents argued that no civil penalty should be imposed against them for the violations of §§1-18a(e)(2) and 1-21(a), G.S., found in paragraph 20 of the Final Decision in this matter issued November 2, 1988.

19. Having found that the named individual members of the council failed to show why a civil penalty should not be imposed for the violations referenced in paragraph 17, above, the Commission in its discretion declines to address the question of whether a civil penalty should be imposed for the violation referenced in paragraph 18, above.

20. It is concluded that, given the failure of the respondent members of the City Council to learn from the May 4, 1988 workshop, the ordering of another workshop for the City Council would not be an appropriate remedy for the violations found in this matter.

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

1. The Commission hereby imposes a civil penalty in the amount of $50.00 against each of the following members of the respondent City Council: Roderick Arpin, Linda Becker, Michael Bohara, Robert Booth, Nancy DePietro, Mark Eaton, Louis Heller, Bonita Hong, Beverly Raymond, and Charles Witt.

2. Payment of such civil penalty shall be made to the Commission at its office within thirty days of the issuance of the Notice of Final Decision in this matter.

Approved by order of the Freedom of Information Commission at its regular meeting of May 24, 1989.

Karen J. Haggett

Clerk of the Commission