FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

            

The above-captioned matter was heard as a contested case on August 11, 2009, 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 of complaint filed April 24, 2009, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by conducting their scheduled regular meeting a day early, and taking up business that was not on the printed agenda of the regular meeting.  The complainant requested that the actions taken at the meeting be declared null and void, and that a civil penalty be imposed against the respondent Chairman.

 

3.  It is found that the respondents scheduled a regular meeting for April 9, 2009.

 

4.  It is found that the respondents filed a notice of “Meeting Change from April 9^th to April 8^th West Shore Fire District Monthly Meeting” because April 9, 2009 was a holiday celebrated as both Holy Thursday and the first night of Passover.

 

5.  It is found that the respondents changed the date of the April 9 regular meeting in order to increase attendance.

 

6.  It is found that the respondents took up as “Old Business” the composition of and rules governing the respondent Board of Commissioner’s Home Rule Committee.

 

7.  It is found that the respondents voted to add the business described in paragraph 6, above, to its April 8 meeting agenda as “old business,” believing that the April 8 meeting was a “regular meeting” pursuant to the FOI Act, since it had been scheduled as an April 9 regular meeting and simply rescheduled.

 

8.  It is found that the business concerning the Home Rule Committee was not on the agenda for the April 9 meeting, although it had been announced at the previous regular meeting of the respondent Board of Commissioners, and was, in fact, “old business.”

 

9.  It is found that the matter of the appointments to the Home Rule Committee was not a matter of great public controversy, although the complainant wished to be appointed a member and the respondents did not appoint her.

 

10.  It is found that the complainant attended the April 8 meeting.

 

11.  It is found that attendance at the April 8 meeting was average.

 

12.  Section 1-225(b), G.S., provides in relevant part:

 

The chairperson or secretary of any … public agency of any political subdivision of the state shall file, not later than January thirty-first of each year, with the clerk of such subdivision the schedule of regular meetings of such public agency for the ensuing year, and no such meeting of any such public agency shall be held sooner than thirty days after such schedule has been filed. 

 

13.  Section 1-225(c), G.S., provides in relevant part:

 

The agenda of the regular meetings of every public agency, except for the General Assembly, shall be available to the public and shall be filed, not less than twenty-four hours before the meetings to which they refer, (1) in such agency's regular office or place of business, and (2) …  in the office of the clerk of such subdivision for any public agency of a political subdivision of the state …..  Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings.

 

14.  Section 1-225(d), G.S., provides in relevant part that “The notice [of a special meeting] 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.” 

 

15.  It is concluded that the respondents’ April 8, 2009 meeting was technically a special meeting, because it was not held on its regularly scheduled day, and that therefore the matter of the Home Rule Committee could not properly be added to its agenda but rather should have been included in a notice of special meeting posted not less than 24 hours before the meeting.  See Docket #FIC 2001-092, D’Onofrio et al. v. Pension Board, Town of Orange.

 

16.  It is therefore concluded that the respondents technically violated §1-225(d), G.S.

 

17.  The complainant contends that the respondents’ violation of §1-225(d), G.S.,  warrants declaring the actions taken at that meeting null and void, and also warrants the imposition of a civil penalty.

 

18.  With respect to the complainant’s request that the actions of the respondents at the April 8, 2009 meeting regarding the Home Rule Committee be declared null and void, §1-206(b)(2), G.S., provides in relevant part:

 

In any appeal to the Freedom of Information Commission under subdivision (1) of this subsection or subsection (c) of this section, the commission may confirm the action of the agency or order the agency to provide relief that the commission, in its discretion, believes appropriate to rectify the denial of any right conferred by the Freedom of Information Act.  The commission may declare null and void any action taken at any meeting which a person was denied the right to attend ….

 

19.  It is found that, given that attendance at the April 8, 2009 meeting was within the range of normal attendance, that the subject of the Home Rule Committee had been discussed at the previous meeting and announced then as a matter for the April 8 meeting, that no person was denied the right to attend the April 8 meeting, and that the respondents’ actions in changing the meeting date to April 8 was intended to increase attendance, the Commission in its discretion declines to declare null and void any action taken at the meeting.

 

20.  With respect to the complainant’s request for a civil penalty, §1-206(b)(2)(c), G.S., provides in relevant part:

 

… upon the finding that a denial of any right created by the Freedom of Information Act was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing conducted in accordance with sections 4-176e to 4-184, inclusive, the commission may, in its discretion, impose against the custodian or other official a civil penalty of not less than twenty dollars nor more than one thousand dollars. 

 

21.  It is found that the respondents reasonably moved the date of their April 9 regular meeting to April 8 in order to increase attendance, and added the matter of the Home Rule Committee to their agenda because they reasonably believed that a rescheduled regular meeting remained a regular meeting for purposes of the FOI Act.

 

22.  It is therefore concluded that the actions of the respondents were not without reasonable grounds, and that therefore no civil penalty may or should be imposed.

 

 

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 regular and special meeting requirements of the FOI Act.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of April 14, 2010.

 

 

____________________________

S. Wilson

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:

 

Beth Denton

82 Woodvale Road

West Haven, CT 06516

Chairman, Board of Commissioners,

West Shore Fire District; and

Board of Commissioners,

West Shore Fire District

C/o Mark J. DeGennaro, Esq.

Donahue, Votto & DeGennaro, PC

44 Church Street

West Haven, CT 06516

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2009-249FD/sw/4/19/2010