FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by
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FINAL DECISION
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Complainant
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against
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Docket #FIC 1999-574
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First Selectman, Town of Sherman; and
Second Selectman, Town of Sherman, |
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Respondents
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June 28, 2000
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The above-captioned matter was
heard as a contested case on February 9, 2000, at which time the complainants
and the respondents appeared, stipulated to certain facts and presented
testimony, exhibits and argument on the complaint.
The case caption has been corrected to reflect that Thomas Piel is a
party complainant in this matter. For
purposes of hearing, the above-captioned matter was consolidated with
contested case docket #FIC 1999-561, Warren L. Pitcher v. First Selectman,
Town of Sherman; and Board of Selectmen, Town of Sherman and contested
case docket #FIC 1999-564, Donna Accosta v. First Selectman, Town of
Sherman; and Board of Selectmen, Town of Sherman.
After
consideration of the entire record, the following facts are found and
conclusions of law are reached:
1.
The respondents are public agencies within the meaning of §1-200(1),
G.S., [formerly §1-18a(1),
G.S.].
2.
By letter dated December 5, 1999 and filed on December 6, 1999, the
complainants appealed to the Commission alleging that the respondents violated
the Freedom of Information (“FOI”) Act with respect to a special meeting
of the respondent board held on November 12, 1999.
Specifically, the complainants allege that:
a. the meeting notice was not
proper;
b. the meeting minutes were not available in a timely
manner;
c.
the minutes contain “misstatements”; and
d. First Selectman Tuck and Selectman McGoldrick met, discussed
and planned “town business” in advance of the November 12, 1999 meeting.
3.
It is found that the respondent board held a special meeting on
November 12, 1999, and at that time terminated the employment of an employee,
Warren Pitcher. (hereinafter “ special meeting”).
4.
With respect to the allegation described in paragraph 2a, above,
§1-225(a), G.S. [formerly §1-21(a), G.S.] provides, in relevant part:
“Notice of each
special meeting of every public agency … shall be given not less than
twenty-four hours prior to the time of such meeting by filing a notice of the
time and place thereof … in the office of the clerk of such subdivision for
any public agency of a political subdivision of the state …
The secretary or clerk shall cause any notice received under this
section to be posted in his office. Such
notice shall be given not less than twenty-four hours prior to the time of the
special meeting… The notice shall specify the time and place of the
special meeting and the business to be transacted.
No other business shall be considered at such meetings by such public
agency.” [Emphasis added.]
5.
Section 1-225(b), G.S.) [formerly1-21(b), G.S.] provides further:
“(b)
In determining the time within which or by when a notice, agenda,
record of votes or minutes of a special meeting or an emergency special
meeting are required to be filed under subsection (a) of this section,
Saturdays, Sundays, legal holidays and any day on which the office of the
agency, the Secretary of the State or the clerk of the applicable
political subdivision or the clerk of each municipal member of any
multitown district or agency, as the case may be, is closed, shall be
excluded.”
6.
With respect to the allegation described in paragraph 2a, above, it is
found that the notice of the special meeting was filed more than twenty-four
hours prior to the time of the meeting, and consequently such notice was
timely, within the meaning of §1-225(a) and (b), G.S.) [formerly §1-21(a)
and (b), G.S.].
7.
With respect to the adequacy of the notice in providing the public with
advance notice of the business to be addressed at the special meeting, it is
found that the notice of the special meeting indicates the following with
respect to the business to be transacted:
To review correspondence for discussion and possible action.
1.
Grant Request- dated deadline
2.
Correspondence related to personnel
8.
It is found that the notice as described in paragraph 7, above, did not
specify the business to be transacted with respect to the termination issue,
within the meaning of §1-225(a), G.S. [formerly §1-21(a), G.S.].
9.
Further, it is found that the termination issue arose after the
notice of the special meeting had been filed on November 10, 1999, and
accordingly constitutes “other business” precluded from being addressed at
the special meeting, within the meaning of §1-225(a), G.S. [formerly
§1-21(a), G.S.].
10.
It is found that members of the community, who would have attended the
special meeting had they had notice that the termination issue would be
addressed, were caught by surprise when they became aware that the decision to
terminate had been made at the meeting.
11.
It is concluded that the respondent board violated §1-225, G.S.
[formerly §1-21-(a), G.S.] when it failed to specify on the notice of the
special meeting the business to be transacted.
12.
With respect to the allegation described in paragraph 2b, above, it is
found that on November 18, 1999, complainant Murray requested the minutes of
the meeting from First Selectman Tuck. It
is found that at the time of the request, the minutes were not available,
however, First Selectman Tuck was in the process of preparing them. It is also
found that the complainants received a copy of the minutes on November 23,
2000.
13.
It is concluded that pursuant to §1-225(b), G.S., which excludes
weekends and holidays in determining the time within which or by when minutes
of a special meeting are required to be filed, the minutes at issue were
available within seven days of the meeting in question.
Consequently, it is concluded that the respondents did not violate the
FOI Act as alleged in the complaint.
14.
With respect to the allegation described in paragraph 2c, above, it is
found that there is conflicting evidence regarding the statements made at the
meeting. However, there is not
enough evidence in the record to support a finding that the minutes contain
“misstatements”. Consequently,
it is concluded that the respondents did not violate the FOI Act as alleged in
the complaint.
15.
With respect to the allegation described in paragraph 2d, above, it is
not found based on the evidence presented at the hearing that there had been
any prior discussions and decision, on the part of First Selectman Tuck and
Selectman McGoldrick, to fire Mr. Pitcher at the meeting.
Consequently, it is concluded that the respondents did not violate the
FOI Act as alleged in the complaint.
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 notice of
special meeting requirement to specify the business to be transacted.
2.
A copy of the Final Decision in this matter shall be posted in a public
and conspicuous place at the Sherman Town Hall for a period of not less than
one month from the date of the Notice of the Final Decision.
Approved by Order of the Freedom of Information
Commission at its regular meeting of
June 28, 2000.
_________________________
Melanie R. Balfour
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:
Thomas Piel
50 Briggs Hill Road
Sherman, CT 06784
First Selectman, Town of Sherman; and Second Selectman,
Town of Sherman
c/o Atty. D. Randall DiBella
Cramer & Anderson
51 Main Street, PO Box 330
New Milford, CT 06776-0330
__________________________
Melanie R. Balfour
Acting Clerk of the Commission
FIC1999-574FD/mrb/06/30/00