FIC1997-086

The above-captioned matter was heard as a contested case on September 4, 1997, 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:

2. By letter of complaint postmarked February 28, 1997, and amended by letter filed May 5, 1997, the complainant appealed to the Commission alleging that:

a. the respondent board knowingly failed to obtain a two-thirds vote of the members present and voting at its February 4, 1997 meeting to add two new items of business to its meeting agenda in violation of § 1-21, G.S.

b. the respondent first selectman threatened to have the complainant removed from the February 4, 1997 meeting in violation of § 1-21h, G.S.; and that

c. the respondent first selectman failed to provide the complainant with a copy of the February 4, 1997 meeting tape promptly.

3. With respect to the complainant’s claim described in paragraph 2a, above, § 1-21(a), G.S., provides in relevant part:

The agenda of the regular meetings of every public agency, …shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer ….Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

4. It is found that the respondent board held a regular meeting on February 4, 1997, at which the respondents voted by a vote of three to two to add two items of business pertaining to two pending lawsuits, which matters were not set forth on the agenda for such meeting.

5. It is further found that at the February 4, 1997 meeting, the complainant questioned the legality of the vote to add new business, at which point the respondents voted to recess to enable their counsel to research the issue. Upon reconvening, the respondent board heard from its counsel and unanimously voted to adjourn to executive session to discuss the newly added agenda items.

6. The respondents conceded at the hearing on this matter that the vote to add subsequent business to their meeting agenda did not comport with the requirements of the Freedom of Information ("FOI") Act. The respondents claimed that they did not realize until after the meeting and upon further research that their vote was improper and that at the time, they believed their vote was legal, based upon the advice of their counsel.

7. It is concluded that the respondents violated the provisions of § 1-21(a), G.S., by failing to obtain the requisite two-thirds vote of those members present and voting to add subsequent business to their February 4, 1997 meeting agenda.

8. With respect to the complainant’s claim described in paragraph 2b, above, § 1-21h, G.S., provides in relevant part:

In the event that any meeting of a public agency is interrupted by any person or group of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are wilfully interrupting the meetings, the members of the agency conducting the meeting may order the meeting room cleared and continue in session.

9. It is found that the complainant interrupted the respondent board’s meeting several times to question the legality of the vote described in paragraph 4, above, and that during the last interruption, the respondent first selectman stated that if the complainant did not cease interrupting, he would have him escorted out of the meeting. However, the respondents did not escort the complainant out nor did they clear the meeting room, as contemplated in § 1-21h, G.S.

10. It is concluded therefore that the facts of this case do not implicate the provisions of § 1-21h, G.S., and that the respondents therefore did not violate the provisions thereof during the February 4, 1997 meeting.

11. With respect to the complainant’s claim described in paragraph 2c, above, § 1-19(a), G.S., provides in relevant part:

Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency…shall be public records and every person shall have the right to…receive a copy of such records in accordance with the provisions of section 1-15.

12. Section 1-15(a), G.S., in turn provides in relevant part that "[any] person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record."

13. It is found that before the respondents convened in executive session at the February 4, 1997 meeting, the complainant asked the respondent first selectman if he would repeat the counsel’s opinion concerning the legality of the vote and the respondent stated that the complainant could obtain a copy of the meeting tape the following day.

14. It is also found that by letter dated February 5, 1997, the complainant requested that the respondent first selectman provide him with a copy of the meeting tape, among other items which are not at issue in this matter. The respondent first selectman acknowledged receipt of the complainant’s request on that same date, indicating that the information available under the FOI Act would be provided "in a reasonable amount of time."

15. It is further found that the requested tape is a public record within the meaning of § § 1-18a(d) and 1-19(a), G.S.

16. It is further found that by letter dated February 14, 1997, the respondent first selectman informed the complainant that he could drop off a tape for copying or call his office and a copy would be made for a $5.00 tape charge. The respondent first selectman indicated that if the complainant chose the latter, he would advise when the tape would be ready for the complainant to pick up.

17. It is further found that by letter to the respondent first selectman dated February 15, 1997, the complainant indicated that he wanted a copy of the tape made using a tape of the respondent and asked to be advised when it would be ready.

18. It is further found that by letter dated February 20, 1997, the respondent first selectman informed the complainant that the tape would be ready on February 24, 1997 after 4:00 p.m. The complainant picked up the copy of the requested tape on or about February 24, 1997.

19. The respondent first selectman maintains that the requested tape was made available to the complainant just after the minutes of the February 4, 1997 meeting were available and that it is the policy of his office not to make copies of meeting tapes until after meeting minutes are prepared, out of concern that something could happen to the original during copying and that there would then be no official record of the meeting.

20. It is found however, that the respondent’s policy described in paragraph 19, above, does not comply with the promptness requirements of the FOI Act, and that the respondent first selectman’s provision of a copy of the requested tape on February 24, 1997 was not prompt under the facts of this case.

21. It is concluded therefore that the respondent first selectman violated the provisions of § § 1-15(a) and 1-19(a), G.S., by failing to promptly provide the complainant with a copy of the requested tape.

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

1. Henceforth the respondents shall strictly comply with the provisions of § § 1-15(a), 1-19(a), and 1-21(a), G.S

2. The ignorance of the FOI Act demonstrated by the respondents in this case is inexcusable. The Commission notes that by not knowing the law and then by not resolving this matter when the requirements of the law were recognized, the respondents are responsible for the waste of taxpayer money and valuable resources of this Commission.

Approved by Order of the Freedom of Information Commission at its regular meeting of October 22, 1997.

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:
Frank A. Loda
c/o Francis A. Teodosio
Winnick, Vine, Welch, Donnelly & Teodosio
375 Bridgeport Avenue
P.O. Drawer 668
Shelton, CT 06484

First Selectman, Town of Seymour and Board of Selectmen, Town of Seymour
c/o Colleen D. Fries
10 Middle Street
P.O. Box 1978
Bridgeport, CT 06604

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-086/FD/tcg/10221997

In the Matter of a Complaint by	FINAL DECISION
Frank A. Loda,
Complainant
against	Docket #FIC 1997-086
First Selectman, Town of Seymour and Board of Selectmen, Town of Seymour,
Respondents	October 22, 1997