FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            This matter was heard as a contested case on September 18, 2002, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  The complainant’s September 23, 2002 motion to submit additional testimony is hereby denied.

 

            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 and filed with the Commission on May 13, 2002, the complainant alleged that the respondent violated the Freedom of Information [hereinafter “FOI”] Act in several respects with regard to its April 23, 2002 meeting.  At the hearing in this matter, the complainant informed the Commission that it had limited its complaint to one allegation set forth in such letter.  The complainant alleges that the respondent violated the FOI Act by discussing and acting on a matter not appropriate for executive session at its meeting of April 23, 2002.  Specifically, the complainant alleged that the respondent improperly discussed creating new amendments regarding floor plan ratios during its executive session on April 23, 2002.

 

3.  It is found that, on April 19, 2002, the Superior Court issued a memorandum of decision in an action brought by the complainant herein against the respondent herein, by which such court concluded that the respondent had failed to publish notice of a public hearing twice, and that such failure was a jurisdictional defect.  The court declared that the respondent’s attempt to amend its regulations relating to floor plan ratios was null and void.

 

4.  It is found that the respondent held a special meeting on April 23, 2002, and that during such meeting, the respondent convened an executive session for the stated purpose of discussing pending litigation.

 

5.  Section 1-225(a), G.S., provides in relevant part 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.”

 

6.  Section 1-200(6), G.S., defines “executive session” to mean a “meeting of a public agency at which the public is excluded for one or more of the following purposes: …strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled….”

 

7.  It is found that, on April 25, 2002, notice of a May 7, 2002 public hearing of the respondent to consider and take action on proposed floor plan ratio amendments was published in the local newspaper, the Greenwich Time.

 

            8.  It is found that on May 7, 2002, the respondent held a public hearing during which the public was given an opportunity to speak on the proposed floor plan ratio amendments.

 

            9.  The complainant contends that the decision to propose the floor plan ratio amendments again must have occurred during the executive session described in paragraph 4, above.

 

10.  It is found, however, that the respondent discussed the decision to proceed with the amendment process during the open session of the April 23, 2002 meeting, which occurred after the executive session described in paragraph 4, above.

 

11.  It is further found that the respondent discussed pending litigation as permitted under §1-200(6), G.S., in its executive session described in paragraph 4, above, and did not discuss renewing the amendment process in such session.

 

12.  Accordingly, it is concluded that the respondent did not violate §1-225(a), G.S., as alleged by the complainant.

 

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. 

 

2.  The Commission notes that had the minutes of the respondent’s April 23, 2002 meeting been more descriptive, this matter might have been resolved short of an evidentiary hearing.  The Commission also advises the respondent of its long-standing precedent to the effect that agenda items must fairly apprise the public of the business to be transacted by the public agency and that a simple statement of “pending litigation” does not suffice.  Although not raised in the complaint, the Commission further advises the respondent that “other business” is not an appropriate item on a notice of a special meeting, and that new business may only be added to the agenda of a regular meeting.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

April 23, 2003.

 

 

_______________________________________

Dolores E. Tarnowski

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:

 

Concerned Homeowners of Greenwich

c/o Brian R. Smith, Esq.

Robinson & Cole LLP

280 Trumbull Street

Hartford, CT  06103-3587

 

Planning and Zoning Commission,

Town of Greenwich

c/o Haden P. Gerrish, Esq.

Greenwich Town Attorney’s Office

101 Field Point Road

Greenwich, CT  06830

 

 

 

_______________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

 

FIC/2002-219/FD/abg/04/25/2003