FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

The above-captioned matter was heard as a contested case on May 6, 2003, 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 and filed December 26, 2002, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act by failing to give notice to the public of the matter it intended to discuss in executive session, and requesting that the action taken at the meeting be declared null and void.

 

3.  It is found that the respondent scheduled a special meeting for Friday December 20, 2002.

 

4.  It is found that the notice stated in its entirety:

 

The New Milford Zoning Commission shall hold a special meeting for an executive session on December 20, 2002 beginning at 5:00 p.m. at the Zoning Office on the Lower Level of Town Hall.

 

1.  Executive Session – Pending Litigation.

 

 

 

5.  It is found that the respondent had received a Superior Court decision in its pending litigation with Advance Stone, Inc. (“ASI”) a day or two before the scheduled meeting, and had twenty days to file an appeal to the Appellate Court by certification for review, pursuant to Connecticut Practice Book §81-1.

 

6.  It is found that the respondent’s counsel was leaving on vacation on Monday December 22, 2002, and that various of the respondent’s members would be unavailable for a meeting during the following holiday week.

 

7.  It is found that, on the afternoon before the meeting, the respondent considered whether its notice was adequate, in light of Stony Hill Neighborhood Association, Inc. v. Planning and Zoning Commission, Town of Bethel, Docket #FIC 2001-245.

 

8.  It is found that the respondent determined to hold the meeting as scheduled, on the advice of its attorney, because it believed that it could remedy any defect in its notice by publicly stating the reason for the executive session at the meeting, including identifying the litigation to be discussed, and reflecting that statement in its minutes; because it would have been difficult for the respondent to meet the following holiday week; and because its attorney would be unavailable until returning from vacation.

 

9.  It is also found that, due to a history of criticism by the New Milford board of finance of the respondent for failing to authorize its own legal work, the respondent was unwilling to permit the filing of the petition for certification to appeal without formal authorization.

 

10.  It is found that the litigation that was the subject of the meeting concerned a longstanding dispute between New Milford and ASI, involving safety and zoning violations; that the matter was widely reported over a period of years; and that the matter was of significant public interest.

 

11.  It is found that no members of the public attended the December 20, 2002 meeting other than the complainant, who arrived after the respondent had convened in executive session, and did not stay.

 

12.  It is found that the respondent convened in executive session for the stated purpose of discussing litigation with ASI.

 

13.  It is found that, following the executive session, the respondent convened in public session and voted to authorize its attorney to prepare a petition for certification to the Connecticut Appellate Court regarding the litigation discussed in executive session.

 

14.  It is found that the petition for certification was not granted, and that the portion of the litigation that the respondent sought to appeal has now ended.

 

15.  While acknowledging that the better practice would have been to identify the litigation to be discussed in its notice of meeting, the respondent maintains that it complied with the minimum applicable FOI Act requirements in its notice of meeting.  The respondent argues that its actions were not inconsistent with the Commission’s ruling in Stony Hill Neighborhood Association, Inc. v. Planning and Zoning Commission, Town of Bethel, above, and similar cases, because the respondent publicly identified the litigation to be discussed prior to actually convening in executive session.

 

16.  In Stony Hill Neighborhood Association, Inc. v. Planning and Zoning Commission, Town of Bethel  the Commission found in paragraph 10:

 

            In keeping with longstanding Commission precedent, it is concluded that there should be some notice to the public of the specific matter being litigated so that, at a minimum, the public will have some knowledge of the matter to be addressed in executive session.  It is found that the respondent did not state the litigation to which the public agency or a member thereof is a party, prior to convening in executive session and therefore, did not state the reason for such session within the meaning of §§1-225(f) and 1-200(6)(B), G.S….

 

17.  Section 1-225(f), G.S., provides in relevant part:

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.

 

            18.  Section 1-200(6), 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 … (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof … is a party until such litigation or claim has been finally adjudicated or otherwise settled.

 

19.  Specifically, the respondent maintains that in prior decisions such as Stony Hill Neighborhood Association, above, the Commission has predicated a violation of §§1-225(f) and 1-200(6)(B), G.S., upon failures to state the litigation to be discussed both in the meeting notice and at the commencement of the executive session.  Consequently, the respondent argues, there is no violation of the FOI Act in this case because the respondent publicly stated the name of the litigation to be discussed as its reason for entering into executive session, notwithstanding the vagueness of its notice of meeting.

 

20.  However, the complaint in this matter does not allege that the respondent failed to state the reason for its executive session at the time it convened in executive session, but rather that the filed notice of its meeting, which did not identify the matter to be discussed or acted on, was insufficient.  It is concluded under the facts and circumstances of this case that the issue of the sufficiency of the respondent’s notice of meeting is governed by §1-225(d), G.S., not by §§1-225(f) and 1-200(6), G.S.

 

            21.  With regard to notices of special meetings, §1-225(d), 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 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.]

 

22.  In Trenton E. Wright, Jr. v. First Selectman, Town of Windham, Docket #FIC 1990-048, the Commission found that the phrase "executive session - personnel matters" was too vague to communicate to the public what business would be transacted.

 

23.  In Durham Middlefield Interlocal Agreement Advisory Board v. FOIC et al., Superior Court, Docket No. CV 96 0080435, Judicial District of Middletown, Memorandum of Decision dated August 12, 1997 (McWeeny, J.), the court concluded, under circumstances similar to this case, that it was reasonable for the Commission to require something more detailed than “Executive Session Re: Possible Litigation” in a special meeting notice.

 

24.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC et al., Superior Court, Docket No. CV 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

25.  It is found that the respondent’s December 19, 2002 notice of special meeting did not fairly and sufficiently apprise the public of the matters to be taken up, or the action proposed, as required  by §1-225(d), G.S.

 

26.  It is concluded that a defect in the sufficiency of a notice of meeting may not be subsequently cured at the meeting itself by clarifying the business to be transacted.

 

27.  It is therefore concluded that the respondent violated §§1-225(d), G.S.

 

28.  Although the complainant requested in his complaint that the respondent’s actions at the December 20, 2002 meeting be declared null and void, both parties agree that, in light of the Appellate Court’s denial of the respondent’s petition, such invalidation would now be an empty exercise, and the Commission in its discretion declines to do so.

 

29.  At the hearing, but not in his complaint, the complainant requested the imposition of a civil penalty against the respondent, and that the respondent be required to attend an educational workshop regarding the FOI Act.

 

30.  However, no civil penalty may be assessed without affording the individual against whom the penalty might be assessed notice and an opportunity to be heard, pursuant to §1-206(b)(2), G.S.; and it is found that an additional hearing on the imposition of a civil penalty is not warranted under the facts and circumstances of this case, which do not suggest that the members of the respondent acted without reasonable grounds within the meaning of §1-206, G.S.  Additionally, although the complainant maintains that “[t]his is not the first time that the Zoning Commission has been a Respondent here and it has demonstrated a pattern of ignoring the FOI Laws,” a search of the Commission’s cases as reported on its web site, current to February 3, 2003, reveals only one case in which the New Milford Zoning Commission was named as a respondent, and it prevailed in that case.  Jay Lewin v. Chairman, Zoning Commission, Town of New Milford, Docket #FIC 1997-291.

 

31.  It is additionally found that the strained resources of the Commission would not be well used by conducting an educational workshop for the benefit of the respondents, and that the Commission has, by means of this and the other decisions cited herein, more than adequately educated the respondent concerning the requirements of §1-225(d), G.S., as they apply to the facts and circumstances of this case.

 

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

 

            1.  Henceforth the respondent shall strictly comply with the requirements of §1-225(d), G.S.

 

            2.  The respondent represented in its May 13, 2003 brief to the Commission that it is “committed to improving the specificity of its notices of executive session agenda items,” for which commitment the Commission commends the respondent.

 

 

 

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

June 11, 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:

 

Tom Morey

139 Housatonic Avenue

New Milford, CT  06776

 

Zoning Commission,

Town of New Milford

c/o J. Allen Kerr, Jr., Esq.

24 Delay Street

Danbury, CT  06810-6698

 

 

 

___________________________________

Dolores E. Tarnowski

Clerk of the Commission

 

 

FIC/2002-588FD/mes/06/17/2003