FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Larry Pomeranz and Waterbury Municipal Administrators' Association,
Complainants
against Docket #FIC 91-97
City of Waterbury, Victor Mambruno, Paul R. Vitarelli, Nicholas Albini, Joseph J. Santopietro, Clifton J. Cotter, Paul S. Rizza, Gail Swaine and Waterbury Regional Resource Recovery Authority,
Respondents March 25, 1992
The above-captioned matter was heard as a contested case on August 15, 1991, 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. By letter dated and filed April 23, 1991, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information (hereinafter "FOI") Act during the course of, or as a result of, the respondent Waterbury Regional Resource Recovery Authority (hereinafter "WRRRA") March 26 and April 9, 1991 meetings.
3. More specifically, the complainants alleged that with respect to both the March 26 and April 9, 1991 meetings, the respondents:
a. convened an executive session to discuss
complainant Pomeranz (hereinafter "Pomeranz")
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without notifying him of his right to have
the discussion occur in public session;
b. added the discussion of Pomeranz to the meeting
agenda without giving him prior notice;
c. improperly discussed Pomeranz in an executive
session which failed to meet all of the
legal requirements;
d. failed to provide meeting minutes at a
public location within the timeframe required
by law;
e. failed to provide executive session minutes;
f. improperly created an executive session;
g. conducted a public meeting in violation of
the FOI Act;
h. convened an executive session for improper
purposes; and
i violated the FOI Act in other ways.
4. More specifically, with respect to the April 9, 1991 meeting, the complainants also alleged that the respondents improperly discussed a topic that was not on the meeting agenda.
5. The complainants also requested, among other forms of relief, that the Commission impose civil penalties upon the respondents and require the respondents to attend an FOI Act workshop.
6. At the hearing on this matter, the respondents moved to dismiss the appeal on the following grounds: the complainant Waterbury Municipal Administrators' Association (hereinafter "association") does not have standing to appeal to the Commission; the complainants failed to allege any violations of the FOI Act by the City of Waterbury (hereinafter "City"); and the lack of any FOI Act violations for the April 9, 1991 meeting. For the following reasons, the motion to dismiss is granted with respect to the City and denied with respect to the remaining grounds.
7. It is found that the respondent WRRRA held regular meetings on March 26 and April 9, 1991 (hereinafter "March" and "April" meetings, respectively).
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8. It is found that during the March meeting, a motion was made and unanimously passed to add to the agenda: "Discussion of a personnel matter by the Board of Directors of the WRRRA."
9. It is found that following the motion described in paragraph 8, above, a second motion was made to convene in executive session "to discuss a personnel matter; to wit: evaluation of performance."
10. It is found that during the respondent WRRRA's April meeting, a motion was made "to convene in executive session, pursuant to 1-18a(e)(1), G.S," but the agenda for the April meeting did not indicate that there would be an executive session to discuss the performance of Pomeranz and the respondent WRRRA did not vote to add the discussion of a personnel matter to the April meeting agenda.
11. It is found that the subject of both the March and April executive sessions was whether Pomeranz incorrectly, and without authority, terminated a contract between the City of Waterbury and a contractor.
12. It is found that Pomeranz did not attend either the March or April meetings.
13. It is found that at all times material to this complaint, Pomeranz was a City employee acting in the capacity of Waste Reduction Coordinator and was a member of the complainant association.
14. It is found that the respondents did not notify Pomeranz prior to convening the March executive session that he would be the subject of the executive session nor provide him the opportunity to request an open session, as required by 1-18a(e)(1), G.S.
15. The respondent WRRRA maintains that the March executive session was convened without notification to Pomeranz because one of the members of the WRRRA learned earlier that day that Pomeranz had terminated a contract between the City and a contractor and that he had replaced the contractor with another contractor.
16. The respondent WRRRA further maintains that the decision to conduct the discussion in executive session at the March meeting, rather than in public session, was based upon its desire to avoid embarassment to Pomeranz.
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17. The complainants maintain that Pomeranz was never informed that his performance would be discussed in executive session at the April meeting.
18. The respondent WRRRA maintains with respect to the April meeting that its spokesman informed Pomeranz on March 27, 1991 that his performance was discussed in executive session during the March meeting and that the WRRRA would again consider his performance in executive session at the April meeting.
19. The respondent WRRRA further maintains that it believed that Pomeranz would be present at the April meeting because it was customary for him to inform one of the members of the WRRRA if he did not plan to attend.
20. It is found that despite the conflicting testimony offered at hearing concerning whether Pomeranz was notified that his performance would be considered at the April meeting in executive session, as described in paragraphs 17 and 18, above, the respondent WRRRA did not meet its burden of proving that it so informed Pomeranz.
21. It is found that the respondent WRRRA did not inform the complainant that the discussion of his performance during the April meeting could be held in public session.
22. It is found that no votes were taken at the conclusion of either the March or April executive sessions concerning Pomeranz.
23. It is found that the respondent WRRRA convened the March and April executive sessions for a permissible purpose pursuant to 1-18a(e)(1), G.S.
24. It is concluded therefore, with respect to the allegations described in paragraphs 3.f and h, above, that the respondents did not violate the FOI Act.
25. It is further concluded however, with respect to the allegations described in paragraphs 3.a and c, above, that the respondent WRRRA violated the provisions of 1-18a(e)(1), G.S., by failing to inform Pomeranz that he was going to be the subject of the March and April executive sessions and by not providing him the opportunity to request a public session with respect to both the March and April executive sessions.
26. It is found that the minutes of the March and April meetings do not indicate the persons who were in attendance for
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the executive sessions, although the respondents maintain that only the WRRRA Board of Directors were in attendance.
27. Section 1-21g(a), G.S., provides that the "minutes of an executive session shall disclose all persons who are in attendance."
28. It is therefore concluded, with respect to the allegation described in paragraph 3.e, above, that the respondents violated the provisions of 1-21g(a), G.S., by failing to include the names of the persons in attendance at
the March and April executive sessions.
29. It is also concluded, with respect to the allegation described in paragraph 4, above, that the respondent WRRRA violated 1-21, G.S, by failing to properly add a new item of business to the agenda for the April meeting.
30. The complainants maintain that the minutes for the March and April meetings were not made available for public inspection within seven days of the meetings and that in general, minutes for the WRRRA meetings are not available at the City clerk's office or at any regular place of business of the WRRRA.
31. It is found that the WRRRA prepares its agenda in advance of its meetings and that it adds items to its agenda as subjects come up to be placed on the agenda prior to the meeting.
32. It is found that the WRRRA leaves blanks on its meeting agendas and that during the course of a meeting the blanks are filled in by the WRRRA spokesman or secretary to reflect whether a motion passed and by what margin.
33. It is found that the agenda for a WRRRA meeting ultimately serves as the meeting minutes sometime after the meeting.
34. The respondents maintain that although the WRRRA does not have a regular place of business, the agendas and minutes
of its meetings are currently made available at a room located in City Hall that is "designated" for the WRRRA.
35. The respondents further maintain that the City clerk knows the location of the WRRRA minutes and directs members of the public seeking access to them to the designated room, described in paragraph 34, above.
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36. It is found that no witness for the respondent WRRRA has a specific recollection of when the March and April meeting minutes were made available for public inspection.
37. The complainants maintain that the minutes of the respondent WRRRA's s March and April meetings were not made available to them until counsel for the complainants contacted the WRRRA directly and asked for them prior to the hearing on this matter.
38. Section 1-19, G.S., requires every public agency to make its records available at its regular place of business in an accessible place and, if there is no regular place of business, the records shall be kept in the office of the clerk of the political subdivision in which the public agency is located.
39. Section 1-21, G.S., requires an agency to make minutes of its meetings available "for public inspection within seven days of the session to which they refer."
40. It is concluded, with respect to the allegations described in paragraph 3.d, above, that the respondent WRRRA violated 1-19 and 1-21, G.S., by failing to make the March and April meeting minutes available for public inspection within seven days of each of the meetings at its regular place of business in an accessible place or with the City clerk.
41. It is concluded, with respect to the allegations described in paragraphs 3.b and i, above, that the complainants have failed to allege a violation of the FOI Act.
42. Under the circumstances of this case, the Commission, in its discretion, declines to impose civil penalties upon the named respondents and declines to impose any other forms of relief requested by the complainants, except as described in paragraph 4, of the order, below.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed with respect to the respondent City.
2. Henceforth the remaining respondents shall strictly comply with the requirements of 1-18a(e)(1) and 1-21g(a) G.S.,
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with respect to the convening of their executive sessions.
3. Henceforth the remaining respondents shall strictly comply with the requirements of 1-19 and 1-21, G.S., with respect to preparation and availability of minutes and adding new items of business to the agendas of their meetings.
4. Within thirty (30) days of the notice of final decision, the respondent authority shall provide a copy of this decision to all of its members. The respondent authority shall also cause a copy of this decision to be included along with the minutes of its first regular meeting after receipt of this decision.
5. Although not technically a violation of the FOI Act, the Commission notes the cumbersome manner employed by the respondents to compile agendas and meeting minutes and recommends that the respondents adopt an alternate method of preparation that will be less confusing to members of the public.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 25, 1992.
Debra L. Rembowski
Acting Clerk of the Commission
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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:
Larry Pomeranz
Waterbury Municipal Administrators' Association
c/o Attorney Robert M. Opotzner
Cutsumpas, Collins, Hannafin, Garamella, Jaber & Tuozzolo
148 Deer Hill Avenue
Danbury, CT 06810
City of Waterbury, Victor Mambruno, Paul R. Vitarelli, Nicholas Albini, Joseph J. Santopietro, Clifton J. Cotter, Paul S. Rizza, Gail Swaine, Waterbury Regional Resource Recovery Authority
c/o Attorney Pamela J. Norley
Carmody & Torrence
P.O. Box 1110
50 Leavenworth Street
Waterbury, CT 06721
Debra L. Rembowski
Acting Clerk of the Commission