FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            

The above-captioned matter was heard as a contested case on May 3, 2004, at which time the complainants and the respondents appeared 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.            It is found that the respondents are public agencies within the meaning of §1-200(1), G.S.

 

2.            It is found that the town of Bethlehem, through the respondent first selectman, sought to purchase certain property owned by Donald Hall (hereinafter “the Hall property”). 

 

3.            It is found that the respondent first selectman entered into negotiations with the executor of Mr. Hall’s estate to purchase the Hall property and made an offer for the purchase of a portion of the Hall property on or about Friday, November 7, 2003. 

 

4.            It is found that the respondent first selectman received a counter offer on November 10, 2003 and in an effort to expeditiously respond to the executor, the respondent first selectman called an emergency special meeting of the respondent board to discuss the matter to be held on November 11, 2003.

5.            It is found that the respondents held a meeting on November 11, 2003 that was attended by the three members of the respondent board of selectmen.

 

6.            It is found that the complainants became aware of the meeting through a local reporter and attempted to attend the November 11, 2003 meeting but were not permitted to do so after being told that the meeting was an emergency special meeting and that the board was meeting in executive session.

 

7.            By letter dated November 12, 2003 and filed on November 18, 2003, the complainants appealed to this Commission alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       conducting the alleged emergency special meeting of November 11, 2003, for a purpose that did not constitute an emergency within the meaning of the FOI Act;

 

b.      failing to post notice of its November 11, 2003 meeting;

 

c.       conducting the November 11, 2003 meeting on a state legal holiday; and

 

d.      voting in executive session to adjourn the November 11, 2003 meeting.

 

The complainants also requested the imposition of civil penalties against the respondents.

 

8.            With respect to the complainants’ allegations described in paragraphs 7a and 7b, above, §1-225(d), G.S., provides in relevant part that:

 

 . . . in case of emergency . . . any . . . special meeting may be held without complying with the . . . requirement for the filing of notice but a copy of the minutes of every such emergency special meeting adequately setting forth the nature of the emergency and the proceedings occurring at such meeting shall be filed with . . . the clerk of such political subdivision . . . not later than seventy-two hours following the holding of such meeting . . . .

 

9.            It is found that the respondent board made available to the public the minutes of its November 11, 2003 meeting which set forth the nature of the emergency as follows: 

 

Negotiations with the buyer resulted in a proposed offer made by the first selectman on Friday, November 7.  A counter offer was received from a seller on Monday morning November 10.  With the seller expressing reservations about the length of time it might take to finalize a sale with the town and the chance that a competing offer could arise at any time, the first selectman made a commitment to the buyer to respond to his counter offer by Wednesday morning, November 13.  A special meeting could not be called on Tuesday night with 24-hour notice given the Town Clerk’s office was closed on Monday.  The Town Clerk’s office was also closed on Tuesday, due to the holiday.  With the soonest possible special meeting given the requirement for 24-hour notice then being Thursday evening, the first selectman made a decision to call an emergency meeting Tuesday night to conclude the negotiations as quickly as possible to avoid reinforcing the impression that the town would act slowly and minimize the possibility of a competing buyer stepping forth before we had a contingent sales agreement signed.  [sic]

 

10.        It is found that the reasons for the respondent board’s November 11, 2003 meeting do not constitute an “emergency” within the meaning of §1-225(d), G.S.

 

11.        It is concluded that by meeting without notice to the public concerning the acquisition of the Hall property, the respondents violated the provisions of §1-225(d), G.S.

 

12.        With respect to the complainants’ allegation described in paragraph 7c, above, §1-230(a), G.S., provides in relevant part that “if at any time any regular meeting falls on a holiday, such regular meeting shall be held on the next business day.”

 

13.        It is found that there is nothing in the FOI Act that precludes a public agency from holding a special meeting or an emergency special meeting on a legal holiday.  Therefore the complainants have not alleged a violation of the FOI Act in that respect.

 

14.        With respect to the complainants’ allegation described in paragraph 7d, above, it is found that there is no evidence in the record of this case that the respondents voted in executive session to adjourn the November 11, 2003 meeting.

 

15.        It is found, however, that the respondents voted to adjourn the executive session and then voted to adjourn the November 11, 2003 meeting.  It is not clear from the record in this case whether the respondents thought they were still in executive session when they voted to adjourn the executive session since no one else was in attendance of the meeting.  Consequently, the Commission simply cautions the respondents against taking votes of any nature in executive session.

 

16.        The complainants’ request for the imposition of civil penalties is denied.

 

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 notice provisions of §1-225(d), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of September 22, 2004.

 

________________________________

Petrea A. Jones

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:

 

            Daniel Parlato

            50 Main Street North

            Bethlehem, CT 06751

 

George Eggert

205 Arch Bridge Road

Bethlehem, CT 06751

 

Douglas Tolles

325 Munger Lane

Bethlehem, CT 06751

 

Harry Traver, First Selectman,

Town of Bethlehem; Leo Bulvanoski,

and Jeffrey Hamel, as members,

Board of Selectmen, Town of Bethlehem;

and Board of Selectmen, Town of

Bethlehem

c/o Michael A. Zizka, Esq.

Murtha Cullina LLP

185 Asylum Street

Hartford, CT 06103-3469

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-410FD/paj/9/23/2004