FREEDOM OF INFORMATION COMMISSION
OF
THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL
DECISION
Harold Hansen,
Complainant
against Docket
#FIC 1997-087
Town Council, Town of New Milford,
Respondent December
10, 1997
The
above-captioned matter was heard as a contested case on September 25, 1997, 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 dated March 8, 1997, and filed
with the Commission on March 11, 1997, the complainant appealed to the
Commission alleging that the respondent violated the Freedom of Information Act
with reference to the regular meeting held on February 10, 1997 (the “meeting”)
by:
a) making available an improper agenda;
b) holding an improper discussion of matters
not properly added to the agenda and voting on such matters;
c) voting improperly to ratify an option
agreement that was not properly added to the agenda; and by,
d) holding an improper executive session.
The complainant requested that the remedy ordered
by the Commission include a requirement that representatives of the respondent
attend seminars on the Freedom of Information Act.
3. At the hearing, following the taking of
evidence on questions of fact and argument on questions of law, the complainant
informed the Commission that he wished to withdraw the portions of his
complaint described at subparagraphs 2b) and 2c), above, but also reaffirmed
the portions of his complaint described at subparagraphs 2a) and 2d), above.
4. Section 1-21, G.S., provides in relevant
parts:
The agenda of the
regular meetings of every public agency,
except for the general
assembly, 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.
5. Section 1-18a(e), G.S., provides in relevant
part:
"Executive
sessions" means a meeting of a public agency at
which
the public is excluded for one or more of the following
purposes:…
(4) discussion of the selection of a
site or the lease,
sale
or purchase of real estate by a political subdivision of the
state when publicity
regarding such site, lease, sale, purchase or construction would cause a
likelihood of increased price until
such time as all of
the property has been acquired or all
proceedings or
transactions concerning same have been
terminated or
abandoned….
6. It is found that on February 5, 1997 an
agenda was made available for the meeting, containing as “Item II” a heading
entitled “Appointments/Reappointments”, followed by a heading entitled “1.
Attachment”. Immediately prior to the meeting and not twenty-four hours before
such meeting, a three page attachment was made available listing boards and
commissions, together with various information for each position including the
names of specific individuals being considered for appointment or
reappointment.
7. It is found that by a seven to two vote, the
respondent voted at the meeting to “consider the list of
reappointments/appointments by Board or Commission.” While this motion was not
styled with pristine legal clarity to permit consideration of subsequent
business not included on the filed agenda, it did demonstrate an affirmative
vote of a two-thirds majority in favor of taking up the specific appointments
of listed individuals for the named boards and commissions.
8. It is concluded that, even assuming the
Commission were to hold (which it has not) that the agenda did not give
adequate notice to consider the appointment of individuals to named boards and
commissions, the two thirds affirmative vote cured any notice violation of §1-21,
G.S., that could have resulted from taking up the appointments.
9. It is found that the executive session
described at paragraph 2d) was convened to consider the Larson Farm option and
that, because the Mayor had executed the option before the Town Council
approved specific contract language, members of the Town Council could have
argued that the contract was without force and effect.
10. It is further found that a public discussion
of the validity of the contract could have provoked the property owner to state
that the option was invalid, that he was withdrawing from it and that he would
only enter a new contract at a higher price. Therefore, there was “a likelihood
of increased price”, as the term is used in §1-18a(e)(4),G.S.,
if the Town Council had publicly discussed the Larson Farm option.
11. It is also found that there was a
“likelihood of increased price” because, notwithstanding the fact that Peter
Larson’s desire to negate or revise the terms of the option was not ultimately
discussed at the executive session, no Town Council member could know at the
time the executive session was convened exactly what aspects of the Larson Farm
option would be brought up for discussion at the meeting by other members of
the Town Council.
12. It is concluded that there was no violation
of §1-18a(e),
G.S., as a result of the executive session convened at the meeting.
The following order by
the Commission is hereby recommended on the basis of the record concerning the
above-captioned complaint:
1.
The complaint is hereby dismissed.
Approved
by Order of the Freedom of Information Commission at its regular meeting of
December 10, 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:
Harold Hansen
37 Cherniske Road
New Milford, CT 06776
Town Council, Town of New Milford
c/o Francis J. Collins
148 Deer Hill Avenue
P.O. Box 440
Danbury, CT 06810
__________________________
Doris V. Luetjen
Acting Clerk of the Commission
FIC1997-087/FD/tcg/12101997