FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            The above-captioned matter was heard as a contested case on July 24, 2003, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.  For purposes of hearing, this matter was consolidated with Docket #FIC 2003-133, Marvin Zimmerman and Jon Grossman against Chairman, Board of Assessment Appeals, Town of Branford; and Board of Assessment Appeals, Town of Branford.

 

            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 April 24, 2003, the complainant appealed to the Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by convening in executive session on March 24, 25 and 26, 2003 “to review, deliberate and decide appeals related to the town’s recent revaluation.”  The complainant requested that the Commission declare the actions taken as a result of the executive sessions null and void and the imposition of civil penalties.

 

            3.  With respect to the filing of the complaint in this matter and the Commission’s jurisdiction over the executive sessions at issue, §1-206(b)(1), G.S., provides in relevant part that:

 

[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the F[OI] Act may appeal therefrom to the F[OI] Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial….For purposes of this subsection, such notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken.  (Emphasis added.) 

 

            4.  It is found that the complaint in this matter was received by the Commission on April 25, 2003, more than thirty days after the dates of the March 24 and 25, 2003 executive session, but was postmarked and therefore “filed” for purposes of §1-206(b)(1), G.S., on April 24, 2003.  Pursuant to §1-206(b)(1), G.S., the Commission lacks jurisdiction over the executive session of March 24, 2003 but has jurisdiction over the executive sessions of March 25 and 26, 2003.

 

            5.  It is found that the Town of Branford hired a private company to conduct a property revaluation and that the company completed its property assessments in the Fall of 2002.  It is also found that property owners who wished to have their assessments reviewed by the respondent board filed appeal applications and then had an opportunity to meet with an individual member of the respondent board.  Thereafter, the member of the respondent board who met with the property owner was responsible for presenting his or her version of the appeal to the respondent board as a whole for its consideration.

 

            6.  It is found that the respondents held a meeting on March 24, 2003, for the purpose of reviewing and voting on all appeal applications for “2002 Grand Lists of Real Estate, Personal Property and the 2001 Supplemental Motor Vehicle”.  The respondents recessed the March 24, 2003 meeting late in the evening, to March 25, 2003 and then again to March 26, 2003, (hereinafter collectively referred to as “the March meetings”) in order to complete the respondents’ business, which they were required by statute to conclude by the end of March. 

 

            7.  It is found that at the commencement of the March 24, 2003 meeting, the respondents convened an executive session.  The meeting minutes state the purpose of the executive session as follows:  “to discuss properties with possible litigation.”  On each of the evenings that the respondent board met, it convened in public session, moved into executive session, reconvened in public session following the executive session, and then voted on various appeals without any discussion.

 

            8.  It is found that in advance of the March meetings, the complainant had arranged to have the proceedings of such meetings videotaped.

 

            9.  It is found that the complainant in this case and the complainants in Docket #FIC 2003-133, had each filed appeal applications with the respondent board, that were considered and voted on by the respondent board on at the March meetings.  It is also found that although neither the complainant in this case nor the complainants in Docket #FIC 2003-133 attended the March meetings, they had anticipated that they would be able to review the videotapes of the proceedings and deliberations of the respondent board, prior to making a determination as to whether they would appeal the respondent board’s decisions, if adverse to them, to Superior Court.  However, they were not able to do so due to the fact that the deliberations were conducted in executive session and no videotapes were therefore made of the deliberations.

 

10.  Section 1-225(a), G.S., provides in relevant part that “the meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public.” 

 

11.  Section 1-200(6)(B), G.S., permits a public agency to convene in executive session for:

 

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. 

 

12.   Section 1-200(8), G.S., defines a pending claim as:

 

a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.

 

            13.  Section 1-200(9), G.S., defines pending litigation as:

 

(A)  a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency;  (B)  the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right;  or (C)  the agency's consideration of action to enforce or implement legal relief or a legal right.

 

            14.  At the hearing on this matter, the respondents maintained that they had been advised by counsel that it would be appropriate to convene in executive session to consider the assessment appeals.  The respondents’ counsel stated at the hearing on this matter that the basis for her advice was that such appeals constituted “pending claims” and that the respondents’ discussion of them constituted “strategy” and “negotiations” with respect to such claims within the meaning of §1-200(6) (B), G.S.  

 

            15.  The reasoning offered by the respondents’ counsel at the hearing on this matter is different from the reason proffered by the respondents in the minutes of the March meetings.  The minutes indicate that the respondents viewed the possibility that each appeal to the respondent board could lead to litigation in Superior Court as “pending litigation” that justified convening in executive session.  It is found that the possibility that a decision made by the respondent board could be appealed to Superior Court does not constitute “pending litigation” within the meaning of  §1-200(9), G.S.

 

            16.    With respect to the reasoning offered by the respondents’ counsel at the hearing on this matter, described in paragraph 14, above, it is found that the respondent board is an adjudicatory body, whose responsibility is to review appeals, deliberate and ultimately determine, based upon fair market value, whether a property owner’s assessment should be modified.  An appeal to the respondent board merely seeks such a review, deliberation and determination by the respondent board; it does not set forth a demand for legal relief or assert a legal right stating the intention to institute an action in an appropriate forum if such relief is not granted.  Thus, appeals brought to the respondent board do not constitute “pending claims” within the meaning of §1-200(8), G.S. 

 

            17.  Further, even if the possibility of an appeal to Superior Court could be construed as “pending litigation” within the meaning of §1-200(9), G.S., or the appeals filed with the respondent board could be construed as “pending claims” within the meaning of §1-200(8), G.S., the respondents are not “parties” to the claims themselves.  Rather, they are impartial decision makers, as described in paragraph 16, above.

 

            18.  Moreover, even if the possibility of an appeal to Superior Court could be construed as “pending litigation” within the meaning of §1-200(9), G.S., or the appeals filed with the respondent board could be construed as “pending claims” within the meaning of §1-200(8), G.S., and the respondents could be considered “parties” to such claims or litigation, the review and deliberations of the members of the respondent board, as described in paragraph 16, above, could not possibly be deemed to be “strategy” or “negotiations” within the meaning of §1-200(6)(B), G.S.

 

            19.  The respondents further stated at the hearing on this matter that their “privacy” concerns led them to convene in executive session because some of the information contained on the appeal applications is personal in nature and the respondents felt uncomfortable discussing such matters in public and before video cameras.

 

            20.  It is found that the “privacy” concerns referenced by the respondents do not constitute a valid basis for an executive session. 

 

            21.  It is concluded that the respondents did not convene in executive session on  March 25 and 26, 2003 for a proper purpose pursuant to §1-206, G.S., and that they therefore violated the open meeting provisions of §1-225(a), G.S.

 

            22.  As noted in paragraph 2, above, the complainant requested that the Commission declare the actions taken by the respondent board as a result of the executive sessions null and void and the imposition of civil penalties.  Although the Commission appreciates the potential gravity of the violation in this case, the Commission is also cognizant of the hardship, confusion and cost a null and void declaration would impose upon the Town of Branford in this case and at the time of the decision in this matter.  In addition, since the respondents’ determination to convene in executive session was based upon their reliance in good faith on the advice of counsel, the Commission declines to impose the remedies requested by the complainant in 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 respondents shall strictly comply with the open meeting requirements of §1-225(a), G.S., in the conduct of their hearings and meetings with respect to property assessment appeals.

 

 

 

 

 

 

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:

 

Stacy S. Ruwe

c/o Jennifer Aniskovich

15 Grove Avenue

Branford, CT  06405

 

Joe Chandler, Chairman, Board of Assessment

Appeals, Town of Branford;Peter Banca;

Erica Campbell; Chris Peterson; and

Michael Milici, as members, Board of Assessment

Appeals, Town of Branford; and Board of

Assessment Appeals, Town of Branford

c/o Carolyn Vacchiano, Esq.

Wiggin & Dana LLP

One Century Tower, PO Box 1832

New Haven, CT  06508-1832

 

 

___________________________________

Ann B. Gimmartino

Acting Clerk of the Commission

 

 

FIC/2003-153FD/abg/09/12/2003