FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
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In the Matter of a Complaint by |
FINAL DECISION |
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Complainant |
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against |
Docket #FIC 2000-015 |
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First Selectman, Town of Southbury, |
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Respondents |
June 28, 2000 |
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The above-captioned matter was heard as a contested case on February 25, 2000, at which time the complainant and the respondent 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:
1. The respondent is a public agency within the meaning of §1-200(1), G.S.
2. By letter dated January 6, 2000 and filed on January 10, 2000, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information Act on December 13 and 14, 1999, by voting on a matter without filing an agenda and providing the public with notice that such vote would take place, and conducting an emergency telephone vote when no emergency existed.
3. It is found that sometime during December 13 and 14, 1999, the respondent and the other five members of the board of Selectmen of the town of Southbury (“town”) participated in a telephone poll vote and unanimously approved the acceptance of a Conservation Easement granted by Southhaven Associates LLC and SRG Family LLC to the town (“conservation easement”).
4. Section 1-200(2), G.S., provides, in relevant part: "[‘M]eeting’ means …any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.”
5. It is found that the telephone poll vote constituted “communication by or to a quorum” of the board, “by means of electronic equipment”, within the meaning of §1-200(2), G.S.
6. It is also found that by conducting the telephone poll vote the board acted “upon a matter over which the public agency has supervision, control, jurisdiction or advisory power”, within the meaning of §1-200(2), G.S.
7. It is therefore, concluded that the telephone poll vote constituted a “meeting” within the meaning of §1-200(2), G.S.
8. Section 1-225(a), G.S., requires that:“[T]he meetings of all public agencies, except executive sessions as defined in subdivision (6) of section 1-200, shall be open to the public.”
9. Section 1-225(a), G.S., further provides:
“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 … 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; provided, in case of emergency … any such special meeting may be held without complying with the foregoing requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with the … clerk of such political subdivision…not later than seventy-two hours following the holding of such 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….”
10. With respect to whether an emergency existed, the respondent contends that it was his understanding from either the town attorney or his assistant (his recollection is unclear) that it was necessary to have the approval of the conservation easement by the board of selectmen prior to a scheduled 7:00 p.m., December 14, 1999 Inland Wetlands Commission (“IWC”) meeting.
11. It is found however, that the respondent failed to demonstrate that an emergency situation existed on December 13 and 14, 1999, within the meaning of §1-225(a), G.S. First, the respondent contends that he and the board felt compelled to act by 7:00 p.m. on December 14, 1999, when the IWC would meet. Even assuming that this was the case, it is found that on December 13, 1999, following receipt of a facsimile from the town attorney at approximately 3:00 p.m., the respondent could have issued twenty-four hours notice to the public and convened a special meeting on December 14, 1999, at or after 3:00 p.m. Second, as conceded by the respondent, the formal deadline for the close of the IWC public hearing, convened pursuant to §22a-42a, G.S., was December 24, 1999, with the possibility of that date being extended, with the applicant’s consent.
12. It is found that it was possible, albeit an inconvenience, to provide twenty-four hours notice to the public, and convene a special meeting of the board.
13. It is therefore, concluded that the respondent and the board of selectmen violated §1-225(a), G.S., when they held an emergency meeting when no emergency situation existed, within the meaning of §1-225(a), G.S.
14. It also found that even had an “emergency” existed, the minutes of the December 13 and 14, 1999 meeting, filed by the respondent and the board of selectmen on December 20, 1999 at 11:30 a.m. were not filed within seventy-two hours of the conclusion of such meeting as required by §1-225(a), G.S. The meeting concluded at 1 p.m. on December 14, 1999, and the minutes should therefore, have been filed by December 17, 1999 at 1:00 p.m.
15. It is also found, and conceded by the respondent, that the minutes do not set forth the nature of the emergency, within the meaning of §1-225(a), G.S.
16. Finally, it is found that the telephone poll vote to approve the acceptance of the conservation easement was subsequently rescinded by resolution of the board of selectmen on January 6, 2000.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint:
1. Henceforth, the respondent and the board of selectmen shall strictly comply with the notice and meeting requirements set forth at §1-225, G.S.
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:
Henry W. Stormer
31 Old Waterbury Road
Southbury, CT 06488
First Selectman, Town of Southbury
c/o Atty. Gail E. McTaggart
Secor, Cassidy & McPartland, PC
41 Church Street
Waterbury, CT 06704
__________________________
Melanie R. Balfour
Acting Clerk of the Commission