FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by              FINAL DECISION

 

John Carlo,

 

                        Complainant

 

            against              Docket #FIC 94-184

 

Clement Diana, Vincent Giannotti, Richard Massaro,

Victor Sampietro and Allingtown Board of Fire Commissioners,

 

                        Respondents                 March 8, 1995

 

            The above-captioned matter was heard as a contested case on January 10, 1995, 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 of complaint dated May 31, 1994, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information ("FOI") Act by:

 

                        a.  convening in executive session on May 3, 1994 without first stating the purpose;

 

                        b.  convening in executive session on May 3, 1994 for reasons other than those allowed for executive sessions;

 

                        c.  including on their May 3, 1994 agenda an item not proper for discussion in executive session;

 

                        d.  failing to comply with a prior FOI Commission order in Docket #FIC 93-79 to strictly comply with the requirements of 1-21, G.S.

 

            3.  At the hearing in this matter, the respondents contended that the complaint was not timely because the complainant failed to file his appeal within the required thirty day period.

 

Docket #FIC 94-184                                    Page 2

 

            4.  Section 1-21i(b)(1), G.S., states in pertinent part:

 

                        Any person denied ... any ... right conferred by [the FOI Act] may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial ....  For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.

 

            5.  It is found that the complaint, described in paragraph 2, above, was received by the FOI Commission on June 6, 1994 with a postmark of May 31, 1994.

 

            6.  It is concluded that the complaint, having a postmark of May 31, 1994, was timely filed and therefore, this Commission has jurisdiction to address the allegations described in paragraphs 2a. through 2d., inclusive.

 

            7.  With respect to the allegations described in paragraphs 2a., 2b. and 2c., above, it is found that the respondent Board held a regular meeting on May 3, 1994 during which it convened in executive session between 7:40 p.m. and 7:56 p.m.

 

            8.  It is found that the respondent Board's May 3, 1994 minutes state that the respondents discussed the following in executive session, "letter from Lt. Massaro on injury", "letter from accountant Paolini" and "letter from Frank Cusano to D/C."

 

            9.  It is found that of the topics discussed in executive session, described in paragraph 8, above, only the Paolini matter was noticed on the respondent Board's May 3, 1994 agenda for discussion in executive session.

 

            10.  With respect to the Massaro matter which was discussed in executive session, and described in paragraph 8, above, it is found that the respondents failed to notice this on their May 3, 1994 agenda as an item to be discussed in executive session.

 

            11.  Further, it is found that the May 3, 1994 agenda item which reads, "6A.  Personnel matters if any", does not give notice to the public of the Massaro matter which the respondents discussed in executive session.

 

Docket # FIC 94-184                                     Page 3

 

            12.  With respect to the Cusano matter which was discussed in executive session, and described in paragraph 8, above, it is found that the respondents failed to notice this on their May 3, 1994 agenda as an item to be discussed in executive session, and failed to identify the allowed executive session purpose.

 

            13.  With respect to the Paolini matter which was discussed in executive session and described in paragraph 8, above, it is found that although the respondents' May 3, 1994 agenda states "6C.  Executive session letter proposal M. J. Paolini", the respondents failed to state on the agenda the executive session purpose.

 

            14.  With respect to the allegation described in paragraph 2a., above, it is concluded that the respondents violated the complainant's rights when they discussed the Massaro, Paolini and Cusano matters in executive session without prior notice to the public that these discussions would take place in an executive session, and without apprising the public of the allowed executive session puposes for such discussions.

 

            15.  With respect to the allegations described in paragraphs 2b. and 2c., it is found that the complainant failed to prove that the respondents convened in executive session for reasons other than those allowed, or that they included in their May 3, 1994 agenda an item not properly discussed in executive session.

 

            16.  With  respect to the allegation described in paragraph 2d., above, the Commission takes administrative notice of its final decision in Docket #FIC 93-79, John Carlo v. Allingtown Fire District, (FIC 93-79).

 

            17.  In FIC 93-79, based upon the stipulation of the parties, the FOI Commission found:

 

                        6.  The violations of the Freedom of Information Act ... were not intentional, and no civil penalty should be assessed against the respondent.

 

                        The parties having consented thereto, the folowing order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

                        1.  Henceforth, the respondent shall strictly comply with the requirements of 1-21, G.S.

 

Docket #FIC 94-184                              Page 4

 

            18.  It is found that the respondents are the governing body of the named respondent in Docket #FIC 93-79, the Allingtown Fire District.

 

            19.  It is found that the respondents have failed to comply with the Commission's order in Docket #FIC 93-79 to "strictly comply with the requirements of 1-21, G.S."

 

            20.  It is therefore concluded that the respondents have violated the Commission's order in Docket #FIC 93-79.

 

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

 

            1.  With respect to the allegations described in paragraphs 2a. and 2d., of the findings above, the respondents shall forthwith attend an FOI Act workshop to be held at the offices of the FOI Commission located at 18-20 Trinity Street, Hartford, CT 06106.

 

            2.  Within one week of the mailing of the notice of final decision in this matter, the respondents shall contact the clerk of the FOI Commission to arrange the date and time of the FOI workshop, referred to in paragraph 1 of the order.

 

            3.  With respect to the allegations described in paragraphs 2b. and 2c., of the findings above, the complaint is hereby dismissed.

 

Approved by Order of the Freedom of Information Commission at its regular meeting of March 8, 1995.

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission

 

Docket #FIC 94-184                              Page 5

 

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 CARLO

81 Richmond Avenue

West Haven, CT 06516

 

CLEMENT DIANA, VINCENT GIANNOTTI, RICHARD MASSARO, VICTOR SAMPIETRO AND ALLINGTOWN BOARD OF FIRE COMMISSIONERS

c/o Louis Smith Votto, Esq.

Donahue, Votto & Delia, P.C.

P.O. Box 411

415 Main Street

West Haven, CT 06516-0411

 

                                                                 

                                    Debra L. Rembowski

                                    Clerk of the Commission