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