FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Philip M. Block,

 

Complainant

 

 

against

Docket #FIC 2003-016

Chairman, Planning and Zoning

Commission, Town of Southington;

and Planning and Zoning Commission,

Town of Southington,

 

 

Respondents

September 10, 2003

 

 

 

 

The above-captioned matter was heard as a contested case on May 9, 2003, 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 January 11, 2003 and filed on January 13, 2003 the complainant appealed to this Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by convening in executive session for an impermissible purpose during the respondent commission’s December 17, 2002 regular meeting.  The complainant requested that this Commission order the respondent to schedule a public hearing on the underlying issue in this case.

 

3.      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.”

 

4.      Section 1-200(6)(B), G.S., provides in relevant part that:

 

“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, 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.  [Emphasis added].

 

5.      Section 1-200(9), G.S., further provides in relevant part that “pending litigation” means “ . . . the agency's consideration of action to enforce or implement legal relief or a legal right.”

 

6.      It is found that the complainant, on behalf of his client, presented certain facts and argument to the Southington zoning enforcement officer (hereinafter “ZEO”) in a letter regarding alleged violations of certain zoning regulations by Tiger Enterprises, a neighbor of his client, which is the underlying issue in this case.

 

7.      It is found that the ZEO researched the matter and issued a letter to the complainant finding that there was no violation of the zoning regulations by Tiger Enterprises.

 

8.      It is found that the respondent commission held a regular meeting on December 17, 2002 (hereinafter “December meeting”).

 

9.      It is found that the complainant took the matter to the respondent commission and at its December meeting the complainant presented certain facts and argument before the respondent commission regarding alleged violations of Tiger Enterprises and requested that the respondent commission hold a public hearing on the matter.

 

10.  It is found that at some time during the December meeting, but after the complainant’s presentation, the respondent commission convened in executive session.

 

11.  At the hearing on this matter, the complainant contended that the respondent commission convened in executive session to discuss his request for a public hearing and to review a report on the matter written by the ZEO.  In support of his claim, the complainant contended that the respondent commission’s motion and roll call vote sheet establishes that the respondent commission moved to go into executive session to discuss his request for a public hearing regarding Tiger Enterprises.  The complainant also contended that a motion and roll call vote sheet from the respondent commission’s January 7, 2003 meeting establishes that the executive session discussion during the December meeting pertained to the ZEO report on the alleged Tiger Enterprises zoning violation.  The complainant also contended that the respondent commission ratified the ZEO’s report without discussion at the January 7, 2003 meeting.  The complainant claimed that the ZEO’s report was never discussed` in open session at any meeting and questioned how the respondent commission could have ratified it but for having discussed it first during the executive session during the December meeting.

 

12.  At the hearing on this matter, the respondent commission contended that it appropriately convened in executive session at its December meeting to discuss pending litigation.  The respondent commission maintained that it went into executive session to discuss pending litigation pursuant §1-200 (9), G.S., because it was considering an action to enforce or implement legal relief or a legal right against Tiger Enterprises.  The respondent also maintained that the ZEO’s report was discussed in open session at its January 2, 2003 meeting, which was not attended by the complainant, and not during the executive session of the December meeting. 

 

13.  It is found that at the time of the December meeting, the respondent commission had not determined that Tiger Enterprises had violated a zoning regulation and the ZEO had already determined that it had not; therefore, with respect to the alleged zoning violation, there was no pending litigation within the meaning of §§1-200(6) and 1-200(9), G.S., because the respondent commission had no legal relief or legal right against Tiger Enterprises that it could have considered taking action to enforce or implement.

 

14.  It is also found that the respondents failed to provide evidence of any pending litigation and even if there was a pending litigation with respect to Tiger Enterprises separate and apart from the alleged zoning violation, the respondent commission failed to prove that the discussion during the executive session at the December meeting pertained to any strategy and/or negotiations with respect to such litigation.

 

15.  It is also found that even if a legitimate pending litigation existed, the respondent commission failed to state the purpose for the executive session and to identify the litigation prior to convening in executive session, pursuant to §1-225(f), G.S.

 

16.  Consequently, it is concluded that the respondent commission improperly convened in executive session and thereby violated the open meeting provisions of  §1-225(a), G.S.

 

17.  Notwithstanding paragraph 16, above, the commission declines to grant the specific relief requested by the complainant.

 

 

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 open meetings provisions of §1-225(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 10, 2003.

 

 

___________________________________

Ann B. Gimmartino

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:

 

Philip M. Block

40 Grand Street

Hartford, CT  06106-4068

 

Chairman, Planning and Zoning Commission,

Town of Southington; and Planning and

Zoning Commission, Town of Southington

c/o Mark Sciota, Esq.

Elliott, Stanek & Sciota

188 North Main Street, PO Box 578

Southington, CT  06489

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-016FD/abg/09/11/2003