FREEDOM
OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by |
FINAL DECISION |
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Philip M. Block, |
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Complainant |
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against |
Docket #FIC 2003-016 | |
Chairman,
Planning and Zoning Commission,
Town of Southington; and
Planning and Zoning Commission, Town of Southington, |
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Respondents |
September 10, 2003 | |
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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