FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

John M. Hoffer,

 

                        Complainant

 

            against              Docket #FIC 90-227

 

Oxford Planning and Zoning Commission,

 

                        Respondent                  January 23, 1991

 

            The above-captioned matter was heard as a contested case on October 4, 1990, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of 1-18a(a), G.S.

 

            2.  By letter filed with this Commission on June 18, 1990, the complainant alleged that the respondent conducted an improper executive session on June 7, 1990 by failing to adequately identify the topic to be considered, by failing to permit the complainant who was the subject of the session to require an open meeting pursuant to 1-18a(e)(1), G.S., and by permitting attendance in executive session by non-members of the respondent.

 

            3.  It is found that at the respondent's June 7, 1990 meeting, the following people were in attendance at its executive session: chairperson Nancy Clark; secretaries Wayne Johnson and Louise DePalma; members Carleton Atwater, Steven Daninhirsch, Robert Wilcock, James Leach (alternate), and John Hoffer (complainant); as well as non-members Hiram Peck (town planner) and Chris Jaran (second selectman).

 

            4.  It is found that the agenda for the June 7 regular meeting indicates "Executive Session" for item #3 under "Other Business" without any other reference to the topic of that executive session;  additionally, no statement of the reason for the executive session was given prior to the respondent convening in the executive session.

 

            5.  It is concluded, therefore, that the respondent violated 1-21(a), G.S. by failing to adequately set forth in

 

Docket #FIC 90-227                           Page 2

 

its agenda the business to be transacted in executive session and by failing to state a proper purpose for executive session within the meaning of 1-18a(e), G.S.

 

            6.  The respondent claims that the purpose of the executive session was primarily to discuss the inability of the zoning enforcement officer and other staff members to effectively perform their jobs rather than to focus the discussion on the complainant.

 

            7.  It is found, however, that in executive session, those present discussed staff members' complaints that the complainant's actions and behavior caused them job difficulties.

 

            8.  It is found that the complainant objected to the fact that the discussion was being held in executive session and that non-members of the respondent were allowed in executive session.

 

            9.  It is found that the respondent chose to continue its executive session after a short break to research the Freedom of Information Act.

 

            10.  It is also found that at no time prior to the meeting in question did the respondent give the complainant the opportunity to require that the discussion concerning his actions be held in public session.

 

            11.  It is therefore concluded that the respondent violated 1-18a(e)(1), G.S. by failing to notify the complainant that he would be discussed in executive session thereby affording him the opportunity to require the portions of the discussion concerning his actions to be held in public session.

 

            12.  It is found that the town planner and the second selectman were invited into the executive session to present testimony or opinion pertinent to matters before the respondent pursuant to 1-21g, G.S.

 

            13.  It is found that the respondent permitted the town planner and second selectman to remain in the executive session to observe each other's testimony.

 

            14.  The respondent claims that it wanted to hear the town planner's and second selectman's opinions concerning the discussion taking place in the executive session in addition to other testimony they might offer, and therefore, the respondent asserts, the two non-members were entitled to remain to listen at the session.

 

15. It is found that 1-21g(a), G.S. limits attendance by non-members of the respondent to the period necessary to present their testimony or opinion.

 

Docket #FIC 90-227                           Page 3

 

            16.  It is found that the respondent failed to prove the attendance by non-members was required for the entire time of their presence.

 

            17.  It is concluded that the respondent violated 1-21g(a), G.S. by permitting the extended attendances of the town planner and the second selectman at its executive session.

 

            18.  This Commission notes that if the respondent has any reason whatsoever for wishing a non-member to witness any discussion that they schedule to take place in an executive session, an appropriate measure is to conduct an open session rather than an executive session.

 

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

 

            1.  For its next regularly scheduled meeting, the respondent shall place on its agenda, as a topic for public discussion, the matters for which it convened an executive session on June 7, 1990 and described in the findings, above.

 

            2.  The Commission reminds the respondent that the Commission staff and attorneys are available by telephone to answer questions free of charge concerning the Freedom of Information Act on Monday through Friday, during regular office hours.

 

Approved by order of the Freedom of Information Commission at its special meeting of January 23, 1991.

 

                                                         

                                    Tina C. Frappier

                                    Acting Clerk of the Commission

 

Docket #FIC 90-227                           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:

JOHN M. HOFFER

118 Chestnut Tree Hill Ext.

Oxford, CT 06483

 

OXFORD PLANNING AND ZONING COMMISSION

c/o Gerald M. Gallant, Esq.

Adelman & Gallant

144 Oxford Road

Oxford, CT 06483

 

                                                         

                                    Tina C. Frappier

                                    Acting Clerk of the Commission