FREEDOM OF
INFORMATION COMMISSION
OF THE STATE OF
CONNECTICUT
In the Matter of
a Complaint by FINAL
DECISION
John F. Carr,
Jr.,
Complainant,
against Docket #FIC 89-191 (corrected)
R. James Allen,
E. Barrie Kavasch, Struther Purdy, Curtis Read, Beatrice K.H. White, Lea N.
Kinstler, Arthur Oles, John Smerekanicz, Richard Miano, and Bridgewater
Conservation and Inland Wetlands Commission,
Respondents February 14, 1990
The above-captioned matter was heard
as a contested case on October 10, 1989, at which time the complainant 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.
By letter postmarked by meter on May 19, 1989, and received by the
Commission on June 6, 1989, the complainant appealed to the Commission,
alleging the respondents held illegal meetings and requesting the Commission
issue a null and void order and a civil penalty against the respondents.
3.
At the hearing on this matter, the respondents moved to dismiss the
complaint, arguing that the June 6, 1989, filing date was more than 30 days
after the alleged violation dates of April 14 and 26, and May 3, 1989, thus
depriving the Commission of jurisdiction.
4.
It is found that the metered postmark date of May 19, 1989, indicates
the complaint was filed, as defined by
1-21i(b), G.S., within 30 days of the events occurring on April 26 and
May 3, 1989.
5.
It is concluded, therefore, that the Commission has jurisdiction over
the complaint as it pertains to events occurring on April 26 and May 3, 1989.
Docket #FIC
89-191 (corrected) Page
Two
6.
It is further found that the complainant did not learn of the events
that occurred on April 14, 1989, until April 26, 1989, and that he alleges such
events constituted a secret meeting.
7.
It is found that the metered postmark of May 19, 1989, indicates the
complaint was filed, as defined by 1-21i(b), G.S., within thirty days
after the complainant received notice of the April 14, 1989, events.
8.
Thus it is also concluded that the Commission has jurisdiction over the
complaint as it pertains to events occurring on April 14, 1989.
9.
It is found that before leaving town for the weekend of April 15 and 16,
1989, the respondent commission's chairwoman called the vice chairman to inform
him that a member of the respondent commission had reported seeing machinery at
a stream crossing at the complainant's site.
The chairwoman asked the vice chairman to find out what was going on and
to let her know when she returned.
10.
It is found that the vice chairman proceeded to poll the members of the
respondent commission by telephone to determine whether a cease and desist
order should be issued against the complainant.
11.
It is found that, based predominately on information received from the
vice chairman after his poll, the chairwoman decided to issue the cease and
desist order against the complainant on behalf of the respondent commission.
12.
It is found that the telephone poll was a communication to a quorum of
the respondent commission, via electronic equipment, to discuss a matter over
which the respondent commission has jurisdiction.
13.
It is concluded, therefore, that the telephone poll constituted a
meeting of a public agency as defined by 1-18a(b), G.S.
14.
It is found that no notice, agenda, record of votes or minutes were ever
created for this meeting.
15.
It is concluded, therefore, that the respondent commission violated
1-21(a), G.S., by failing to provide a notice, agenda, record of votes and
minutes for its telephone meeting.
16.
It is found that on April 26, 1989, the respondent commission held a
public hearing to decide whether the cease and
Docket #FIC
89-191 (corrected) Page
Three
desist order
against the complainant should remain in effect.
17.
It is found that although the complainant had actual notice of this
hearing, no notice or agenda was ever filed with the municipal clerk to inform
the public.
18.
It is found that the hearing was a meeting of the respondent commission,
as defined by 1-18a(b), G.S.
19.
Thus it is concluded that the respondent commission further violated
1-21(a), G.S., by failing to file a notice and agenda for its April 26,
1989, meeting.
20.
It is found that the respondent commission had a regular meeting
scheduled for May 3, 1989.
21.
It is found that the respondent commission has established a procedure
where its administrator leaves the agenda on the town clerk's desk for receipt
and posting.
22.
It is found that the respondent commission's administrator left the
agenda for the May 3, 1989, meeting on the town clerk's desk in the usual
place. The town clerk was away that
week, however, and the clerk's substitute did not see, take receipt of or post
the agenda.
23.
It is further found that the responsibility for properly filing the
agenda lay with the respondent commission.
24.
It is found that the respondent commission's chairwoman felt pressed for
time, due to statutory deadlines, to act on the issues proposed for the May 3,
1989, meeting and that she was advised by the Bridgewater first selectman to
call an emergency meeting.
25.
It is found that, despite the lack of foresight as to the town clerk's
absence and the statutory deadlines, several days remained in which the
respondent commission could have had a special meeting, requiring only
twenty-four hours notice.
26.
It is concluded that the respondent commission's lack of foresight does
not constitute an emergency as provided for in 1-21(a), G.S.
27.
Thus it is concluded that the respondent commission again violated
1-21(a), G.S., by calling an emergency meeting for non-emergency purposes
and by holding the meeting without a proper notice or agenda.
28.
It is found that the respondent commission took several votes at its May
3, 1989, meeting.
Docket #FIC
89-191 (corrected) Page
Four
The following order of the
Commission is hereby recommended based on the complete record of the
above-captioned matter:
1.
The respondent commission henceforth shall act in strict compliance with
1-21a, G.S.
2.
All votes taken by the respondent commission at its May 3, 1989, meeting
are hereby declared null and void.
3.
All members of the respondent commission shall attend an educational
workshop on Freedom of Information Act requirements, to be given by a
Commission staff attorney, within 60 days of the mailing of the notice of final
decision in this matter.
4.
The respondent commission shall cause a copy of the final decision in
this matter to be posted by the town clerk in the town hall for 60 days after
the mailing of the notice of final decision.
5.
The Commission declines to issue a civil penalty upon the respondents.
Approved by
order of the Freedom of Information Commission at its regular meeting of
February 14, 1990.
Tina C.
Frappier
Acting Clerk
of the Commission
Docket #FIC
89-191 (corrected) Page
Five
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:
JOHN F. CARR,
JR.
c/o David B.
Losee, Esquire
Anthony C.
DeFilippis, Jr., Esquire
Cohn &
Birnbaum, P.C.
100 Pearl Street
Hartford, CT
06103
R. JAMES ALLEN,
E. BARRIE KAVASCH, STRUTHER PURDY, CURTIS N. KINSTLER, ARTHUR OLES, JOHN
SMEREKANICZ, RICHARD MIANO, AND BRIDGEWATER CONSERVATION AND INLAND WETLANDS
COMMISSION
c/o Michael A.
Zizka, Esquire
Pepe &
Hazard
One Corporate
Center
Hartford, CT
06103
Tina C.
Frappier
Acting Clerk of the Commission