FREEDOM
OF INFORMATION COMMISSION
OF THE STATE
OF CONNECTICUT
In
The Matter of a Complaint by FINAL
DECISION
Melanie
Kalako, Chairman, Board
of
Finance, Town of Seymour and
Board
of Finance, Town of Seymour,
Complainants
against Docket
#FIC 1997-167
John A. O’Toole, First
Selectman,
Town of Seymour; Evelyn
Dziadik;
John F. Greco; Eugene
Severn;
Clifford P. Strumello, Jr.;
Walter
Trzcinski; Louis J. Zaccaro;
and David
Sharkey, as members of the
Board of
Selectman, Town of Seymour;
and
Board of Selectman, Town of
Seymour,
Respondents December
3, 1997
The above-captioned matter was heard as a contested
case on October 7, 1997, at which time the complainant and the respondents
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 board and the named individuals as members of the respondent board
are public agencies within the meaning of §1-18a(1), G.S. (§1-18a(a), G.S., prior to
October 1, 1997.).
2.
By
letter dated May 29, 1997 and filed on June 3, 1997, the complainants appealed
to this Commission alleging that the respondents violated the Freedom of
Information (“FOI”) Act by discussing a topic that was not on their May 6, 1997
meeting agenda without voting to add that topic to the agenda by a two-thirds
vote of the members of the respondent board present and voting.
3.
Section
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, in such agency’s regular office or place of business . . . .
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 initiated a civil action against the
complainant board and that each board had separate legal counsel.
5.
It
is found that at some point after the initiation of the civil action but before
May 6, 1997, counsel for the respondent board recused herself and withdrew from
the representation of the respondent board which required the respondent board
to seek and hire a special counsel to represent it in the civil action.
6.
It
is found that the respondent board held a regular meeting on May 6, 1997, and
that the posted agenda for such meeting included agenda item #12, “Approve Hire
of Special Counsel.”
7.
It
is found that at its May 6, 1997 meeting, the respondent board discussed under
item 12 various topics which included whether the respondent board would
continue to pursue its action against the complainant board and whether or not
to terminate the complainant board’s counsel.
8.
It
is further found that the respondent board decided without a vote to withdraw
its action against the complainant board and then voted to terminate the
complainant board’s counsel. The
respondents did not however vote to approve the hiring of special counsel, as
indicated on its May 6, 1997 meeting agenda.
9.
At
the hearing in this matter, the respondent first selectman stated that he
prepared the May 6, 1997 meeting agenda and that he intended that agenda item
#12, “Approve Hire of Special Counsel”, to encompass discussion and action
pertaining to the “use of all special
counsel” and that therefore the discussion and action taken under item 12
concerning the termination of the complainant board’s legal counsel did not
require a two-thirds vote.
10. It is found that the agenda
for the May 6, 1997 meeting did not fairly apprise the public of the business
to be conducted at such meeting and that the discussion and vote concerning
complainant board’s counsel constituted “subsequent business” within the
meaning of §1-21(a), G.S. The Commission further finds incredible the
respondent first selectman’s testimony described in paragraph 9, above.
11. It is therefore concluded
that the respondents violated §1-21(a), G.S., by discussing
business not on the May 6, 1997 meeting agenda without properly adding such
business to the agenda by obtaining a two-thirds vote of the members present
and voting.
12. It is further concluded that
the violation described in paragraph 11, above, was without reasonable
grounds.
13. Therefore, in accordance
with the provisions of §1-21i(b)(2), G.S., it is
concluded that a hearing to determine whether a civil penalty ought to be
imposed upon the respondents should be conducted.
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 §1-21(a),
G.S.
2.
Forthwith,
the Commission shall issue notice to the parties and conduct a hearing on
whether a civil penalty ought to be imposed against the respondents.
Approved
by Order of the Freedom of Information Commission at its special meeting of
December 3, 1997.
_________________________
Doris V. Luetjen
Acting Clerk of the Commission
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:
Melanie
Kalako, Chairman, Board
of
Finance, Town of Seymour and
Board
of Finance, Town of Seymour
c/o
Francis Teodosio
Winnick,
Vine, Welch, & Teodosio LLC
375
Bridgeport Avenue
Shelton,
CT 06484
John A. O’Toole, First
Selectman,
Town of Seymour; Evelyn
Dziadik;
John F. Greco; Eugene
Severn;
Clifford P. Strumello, Jr.;
Walter
Trzcinski; Louis J. Zaccaro;
and David
Sharkey, as members of the
Board of
Selectman, Town of Seymour;
and
Board of Selectman, 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
FIC1997-167/FD/tcg/12031997