FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Marvin Edelman,

 

Complainants

 

 

against

Docket #FIC 2000-435

John J. Lescoe, Chairman, Board of Selectmen, Town of Windham; Joseph S. Marsalisi, President, Board of Selectmen, Town of Windham; Hilda A. Cook; Thomas E. Devivo; Victor L. Rayhall; Lorraine M. McDevitt; Joseph C. Handfield; Barbara S. McGrath; Susan M. Johnson; Mark Shapera, as members, Board of Selectmen, Town of Windham; Board of Selectmen, Town of Windham; Andrew J. Carey, III, Chairman, Board of Finance, Town of Windham; David A. Hemenway; Gordon Muir; Jerry Iazzetta; Peter J. McDevitt, Jr., as members, Board of Finance, Town of Windham; and Board of Finance, Town of Windham,

 

 

Respondents

June 13, 2001

 

 

 

 

The above-captioned matter was heard as a contested case on October 12, 2000, 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:

1.      The respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.      By letter dated and filed on August 8, 2000, the complainant appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       failing to “truthfully indicate the business to be transacted as required by CGS §1-232” in the notice for their special meeting of July 20, 2000;

b.      convening in executive session for an improper purpose; and

c.       failing to take minutes of the executive session.

 

The complainant requested certain remedies, which included the imposition of the maximum civil penalty against the respondents.

 

3.      With respect to the complainant’s allegation described in paragraph 2a, above, §1-225(d), G.S., provides in relevant part that “. . .[t]he notice [of a special meeting] shall specify the time and place of the special meeting and the business to be transacted.”

 

4.      It is found that the respondents held a joint special meeting on July 20, 2000 and that the notice of such meeting included the following:

 

“Action to go into executive session to discuss strategy and negotiations with respect to pending claims or pending litigation and to discuss the selection of a site or the lease, sale or purchase of real estate, regarding Windham Mills, with members of the Windham Mills Development Corporation [hereinafter “WMDC”], Rita Zangari from the Department of Economic-Community Development and other appropriate persons.”

 

5.      It is found that the respondents convened in executive session during the July 20, 2000 meeting and discussed proposals under which the Town of Windham would acquire an interest in the property owned by the WMDC directly or indirectly, in exchange for money.  Specifically, the respondents discussed proposals under which the Town of Windham would acquire leases to the mill buildings, a mortgage on the property and other security interests.  The discussion also included consideration of a proposal wherein the WMDC would be restructured so that the Town of Windham would actually own stock in WMDC, which would give the town exclusive management and control over the property.

 

6.      It is found that the respondents also discussed three lawsuits involving the Town of Windham and how the proposals made by the WMDC would affect the town’s position in the litigation or settlement of those lawsuits.

 

7.      It is found that the notice of the July 20, 2000 meeting fairly apprised the public of the business to be transacted.

 

8.      Consequently, it is concluded that the respondents did not violate the notice provisions of §1-225(d), G.S., as alleged by the complainant in paragraph 2a, above.

 

9.      With respect to the allegations described in paragraph 2b, above, §1-200(6), G.S., provides in relevant part that a public agency may convene in executive session for the purpose of discussing:

 

 

(B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency . . . is a party until such litigation or claim has been finally adjudicated or otherwise settled;

 

and

 

(D) 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 the property has been acquired or all proceedings or transactions concerning the same have been terminated or abandoned.

 

10.  It is found that the portion of the respondents’ discussion during the executive session that pertained to the three lawsuits constituted strategy with respect to pending claims or pending litigation within the meaning of §1-200(6)(B), G.S.

 

11.  It is also found that the proposals discussed during the July 20, 2000 executive session can reasonably be characterized as discussion of “the selection of a site or the lease, sale or purchase of real estate” within the meaning of §1-200(6)(D), G.S.

 

12.  It is further found, however, that with respect to the portion of the respondents’ discussion during the July 20, 2000 executive session that pertained to the lease, or purchase of the mill property, the respondents failed to prove that publicity regarding such proposals would cause a likelihood of increased price as required by §1-200(6)(D), G.S., to convene in executive session.

 

13.  It is concluded therefore that with respect to the portion of the executive session discussion that pertained to the proposals, the respondents violated the open meetings provisions of §1-225(a), G.S.

 

14.  With respect to the complainant’s allegation in paragraph 2c, above, it is found that the respondents do not maintain any other minutes pertaining to the July 20, 2000 executive session separate from those of the July 20, 2000 meeting and the FOI Act does not require them to do so.

 

15.  It is concluded that the respondents did not violate the FOI Act as alleged by the complainant in paragraph 2c, above.

 

16.  The Commission denies all of the complainant’s requests for relief, including his request for the imposition of civil penalties against the respondents.

 

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 §1-225(a), G.S.

990

 

Approved by Order of the Freedom of Information Commission at its regular meeting of June 13, 2001.

 

 

_________________________________________

Petrea A. Jones

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:

 

Marvin Edelman

c/o Steven Edelman

Route 14

Windham, CT 06280

 

John J. Lescoe, Chairman, Board of Selectmen, Town of Windham; Joseph S. Marsalisi, President, Board of Selectmen, Town of Windham; Hilda A. Cook; Thomas E. Devivo; Victor L. Rayhall; Lorraine M. McDevitt; Joseph C. Handfield; Barbara S. McGrath; Susan M. Johnson; Mark Shapera, as members, Board of Selectmen, Town of Windham; Board of Selectmen, Town of Windham; Andrew J. Carey, III, Chairman, Board of Finance, Town of Windham; David A. Hemenway; Gordon Muir; Jerry Iazzetta; Peter J. McDevitt, Jr., as members, Board of Finance, Town of Windham;  and Board of Finance, Town of Windham

c/o Richard S. Cody, Esq.

21 East Main Street

PO Box 425

Mystic, CT 06355

 

 

________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

FIC/2000-435/FD/paj/06/14/2001