FREEDOM OF INFORMATION
COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint
by Final Decision
Anthony Pecorara,
Complainant
against Docket
#FIC 94-406
South Windsor Inland Wetlands
Commission,
Respondent October 25, 1995
The above-captioned matter was heard as a contested
case on August 2, 1995, at which time the complainant and the respondent
appeared 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
of complaint filed with this Commission on November 16, 1994, the complainant
alleged that at the respondent's November 9, 1994 regularly scheduled meeting,
("November meeting"), an executive session was called and convened
for an improper purpose.
3. It is
found that at the respondent's November meeting an executive session was called
and convened to discuss "[the] Notice of Violation at [the Charbonneau
residence] ...."
4. At
the hearing into this matter, the respondent argued that the executive session
was properly convened in accordance with 1-18a(e)(2), G.S., and 15.3
of its enforcement regulations since a "warning letter" and a
"notice of violation" had been mailed to Charbonneau concerning his
property.
5. It
is found that on or about September 30, 1994 the respondent mailed a
"warning letter" to Charbonneau (hereinafter "September
letter"), and then on or about October 18, 1994 a "notice of
violation" was sent to him, (hereinafter "October notice").
6. Section
1-18a(e)(2), G.S., states that an executive session may be convened to discuss
".... strategy and negotiations with respect to pending claims or pending
litigation to which the public agency ... is a party ... [emphasis
added]."
Docket #FIC 94-406 Page
2
7. Section
1-18(a)(g), G.S., defines a "pending claim" as:
... a written notice to an agency
which sets forth a demand for legal relief or which asserts a legal right
stating the intention to institute an action in an appropriate forum if such
relief or right is not granted.
(Emphasis added.)
8. It
is found that neither the respondent's September letter, nor October notice
constitute a pending claim as defined by 1-18(a)(g), G.S.
9. Section
1-18(a)(h), G.S., defines "pending litigation" as:
(1) a written notice to an agency
which sets forth a demand for legal relief or which asserts a legal right
stating the intention to institute an action before a court if such relief or
right is not granted by the agency; (2) the service of a complaint against an
agency returnable to a court which seeks to enforce or implement legal relief
or a legal right; or (3) the agency's consideration of action to enforce or
implement legal relief or a legal right.
10. It
is found that the respondent failed to allege or prove that Charbonneau took
any action as required by 1-18(a)(h)(1) or 1-18(a)(h)(2), G.S., to
threaten, assert or commence legal action.
11. It
is also found that neither the September letter nor the October notice
constitute pending litigation under 1-18(a)(h)(1) or 1-18(a)(h)(2),
G.S.
12. It
is further found that the respondent failed to prove that its issuance of the
September letter and October violation constituted "consideration of
action to enforce or implement legal relief or a legal right" as required
by 1-18(a)(h)(3), G.S.
13. It is
concluded that the respondent did not convene the executive session at issue
for a proper purpose as required by 1-18(a)(e), G.S., and therefore
violated the open meetings provisions contained in 1-21, G.S.
14. Additionally,
it is found that upon the facts of this case, the attendance of zoning/wetlands
enforcement officer McCahill for the entire executive session was in violation
of 1-21g(a), G.S.
Docket #FIC 94-406 Page
3
The following 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 provisions of
1-18(a)(e), 1-21 and 1-21g, G.S.
Approved by Order of the
Freedom of Information Commission at its regular meeting of October 25, 1995.
Elizabeth A. Leifert
Acting Clerk of the
Commission
Docket #FIC 94-406 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:
Anthony Pecorara
50 Goose Nest
South Windsor, CT 06074
South Windsor Inland Wetlands
Commission
c/o Ralph J. Alexander, Esq.
Brady, Willard &
Alexander
Suite 400
330 Roberts Street
East Hartford, CT 06108
Elizabeth A. Leifert
Acting Clerk of the Commission