FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by FINAL
DECISION
Lourdes O'Neil Haynes and
Voices, Inc.,
Complainants
against Docket
#FIC 88-475
Newtown Water Pollution
Control Authority, Newtown Board of Selectmen, and Newtown Legislative Council,
all of the Town of Newtown,
Respondents November
8, 1989
The above-captioned matter was heard as a contested case
on January 19, 1989, at which time the complainants and the respondents
appeared, stipulated to certain facts and presented testimony, exhibits and
argument on the complaint.
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 §1-18a(a), G.S.
2. It is found that the town of Newtown engaged
Consulting Environmental Engineers, Inc. ("CEE") to conduct an update
and revision of the town's wastewater facilities plan pursuant to a contract
executed March 24, 1986 (the "contract").
3. It is found that beginning in January of 1988, CEE
notified town officials that it was incurring cost overruns in excess of its
contract payment.
4. It is found that a negotiating committee, composed at
various times of certain members of the respondent Water Pollution Control
Authority ("WPCA") and other town officials, was formed to meet and
discuss with representatives of CEE its request for additional payment for
services under the contract.
5. It is found that the negotiating committee's
activities culminated in a meeting with representatives of CEE on October 31,
1988 at which the negotiating committee agreed that it would recommend to the
WPCA a $43,000 increase in CEE's payment under the contract.
Docket #FIC 88-475 Page
2
6. At its regular meeting of November 9, 1988 the
respondent WPCA convened in executive session on the advice of counsel for the
stated purpose of discussing pending claims and litigation relating to the
contract.
7. It is found that while convened in executive session,
the WPCA discussed the negotiating committee's report on the proposed contract
modification, voted to accept the recommendation of the negotiating committee
for an increase of $43,000 in CEE's payment under the contract, and voted to
recommend the increase to the Board of Selectmen and Legislative Council.
8. It is also found that at its special meeting of
November 15, 1988, the WPCA met and publicly voted the matters described in
paragraph 7, above.
9. At its special meeting of November 28, 1988, the
respondent Board of Selectmen convened in executive session on the advice of
counsel for the stated purpose of discussing strategy and negotiation of a
claim for additional compensation made by CEE.
10. It is found that while convened in executive session,
the Board of Selectmen discussed CEE's request for additional payment, the
negotiating committee's recommendation, and the contract provisions under which
additional payment was expected.
11. It is found that the Board of Selectmen then
reconvened in public session and voted to direct the first selectman to
communicate the negotiating committee's recommendation to the Legislative
Council.
12. By letter of complaint dated and filed November 30,
1988, the complainants appealed to the Commission, alleging that the
respondents improperly convened in executive session at the November 9 and
November 28, 1988 meetings described in paragraphs 6 and 9, above.
13. At the hearing, the complainant withdrew her
complaint against the respondent Legislative Council.
14. It is found that no litigation was pending between
any of the respondents and CEE at the time of the November 9 and November 28,
1988 meetings described in paragraphs 6 and 9, above.
15. It is found that, pursuant to the contract, all
claims between the town and CEE arising out of the contract involving an amount
not exceeding $200,000 will be decided by arbitration, and that notice of
demand for arbitration must be filed in writing with the other party to the
contract and with the American Arbitration Association.
Docket #FIC 88-475 Page
3
16. It is also found that CEE's request for additional
payment under the contract was resolved by the parties without CEE submitting a
claim to arbitration.
17. It is concluded, therefore, that no claim was pending
within the meaning of §1-18a(e)(2), G.S., between CEE and any of the
respondents at the time of the November 9 and November 28 meetings.
18. It is also concluded that §1-18a(e)(2), G.S., does
not permit the topics described in paragraphs 7 and 10, above, to be discussed
or voted upon in executive session.
19. It is concluded therefore that the respondent WPCA
violated §§1-18a(e)(2) and 1-21(a), G.S., by convening in executive session for
an impermissible purpose.
20. It is also concluded that the respondent Board of
Selectmen violated §§1-18a(e)(2) and 1-21(a), G.S., by convening in executive
session for an impermissible purpose.
The following order of the Commission is hereby
recommended on the basis of the entire record in the above-captioned complaint.
1. The complaint is dismissed as to the respondent
Legislative Council.
2. The respondents WPCA and Board of Selectmen henceforth
shall act in strict compliance with §§1-18a(e)(2) and 1-21(a), G.S.
3. The respondents WPCA and Board of Selectmen shall
cause to be posted in the town clerk's office or on the town clerk's bulletin
board a copy of the final decision in this case for 30 days after receipt of
the notice of final decision.
Approved by order of the
Freedom of Information Commission at its regular meeting of November 8, 1989.
Tina
C. Frappier
Acting
Clerk of the Commission
Docket #FIC 88-475 Page
4
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:
LOURDES O'NEIL HAYNES AND
VOICES, INC.
P.O. Box 383
Southbury, CT 06488
NEWTOWN WATER POLLUTION
CONTROL AUTHORITY, NEWTOWN BOARD OF SELECTMAN AND NEWTOWN LEGISLATIVE COUNCIL
OF THE TOWN OF NEWTOWN
c/o Stephen D. Wippermann,
Esquire
19 Church Hill Road
P.O. Box 37
Newtown, CT 06470
Tina
C. Frappier
Acting
Clerk of the Commission