FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

 

The above-captioned matter was heard as a contested case on November 16, 2010, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.  The case caption has been amended to reflect the correct name of the respondent chairman.

           

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 and filed July 28, 2010, the complainant appealed to this Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by improperly convening in executive session during a special meeting held on July 21, 2010.  Specifically, the complainant alleged that the respondents:

 

(a)                Convened in executive session for an improper purpose; and

 

(b)               That the agenda for such special meeting was not specific enough to communicate to the public the business to be transacted.

 

The complainant requested the imposition of civil penalties against the respondents for “persistent violation of the statute.”

           

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), G.S., provides, in relevant part:

 

“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 members’ 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.  “Pending claim” is defined in §1-200(8), G.S., 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.” 

 

            6.  “Pending litigation” is defined in §1-200(9), G.S., 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.”

 

            7.  Section 1-225(f), G.S., provides:

 

A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200.

           

            8.   It is found that, on July 21, 2010, the respondent Inland Wetlands and Watercourses Commission (commission), held a special meeting (meeting).  It is found that the agenda for the meeting lists three items:  (1) Roll Call; (2) Executive Session – pending litigation Robert Fromer; and (3) Adjournment.   It is found that the agenda lists the start time of the meeting as 9:30 a.m., and that the minutes reflect that at 9:40 a.m., a motion was made, seconded and unanimously adopted to enter into executive session to discuss “pending litigation with Robert Fromer….”

 

            9.  The complainant alleges the executive session was improper because, at the time of such executive session, there was no pending litigation between him and the commission.  The respondents contend that although there may not have been pending litigation, as indicated on the agenda, there was a pending claim which justified the executive session under the provisions of §1-200(6), G.S.

 

10.  It is found that the complainant, prior to the meeting, was a member of the commission, having been appointed to the commission by the town council, pursuant to the town charter, to a four year term, in October 2008.  It is further found, however, that at some point, the complainant’s conduct on the commission became an issue, such that in May 2010, the commission voted to ask the town council to review the complainant’s conduct.  The motion approved at the commission’s May meeting stated:

 

Move that based on the December 2009 and February 2010 as well as other [commission] meetings, and the ongoing antagonistic, condescending and unprofessional behavior that we refer Commissioner Fromer to the Town Council for review and potential action based on his actions and comments to applicants, fellow Commissioners, the Town Attorney and town staff and the Commission request [sic] that he recuse himself from the Commission pending review and potential action by the Town Council.  His sitting will open the Commission as a whole to challenge any decisions made pending the response by the Town Council [sic].

 

            11.   It is found that, on June 7, 2010, the town council unanimously voted to adopt the following resolution:

 

Move that the Town Council hereby adopts a resolution of intent to remove Mr. Robert Fromer from his appointed position on the [commission] per Section 6-3 of the Windsor Town Charter due to his antagonistic, condescending and unprofessional behavior and comments to applicants, fellow commissioners and town staff, which impedes the ability of the commission to complete its work efficiently and effectively.

 

            12.  It is found that, by letter dated June 8, 2010, Peter Souza, the Windsor Town Manager, informed the complainant of the action taken by the town council, described in paragraph 11, above (the June 8 letter).  It is further found that, in the June 8 letter, Mr. Souza also informed the complainant that, pursuant to Section 6-3 of the Town Charter, he had 10 days to demand a public hearing, and that if he wanted to avail himself of this provision, he must send a written request to the mayor and the members of the town council.

 

            13.  It is found that, by letter dated June 18, 2010, addressed to the mayor and the members of the town council, the complainant requested “a hearing on the town council’s resolution of intent to remove.”  

 

            14.  It is found that Section 6-3 of the town charter, entitled “Removal of council appointees,” provides, in relevant part:

 

Any appointee of the council…may be removed by an affirmative vote of five (5) members of said council as herein provided.  At least thirty (30) days before the proposed removal of any appointee, the council shall adopt a resolution stating its intention to remove such appointee and the reasons therefor, a copy of which shall be served forthwith on said appointee who may, within ten (10) days, demand a public hearing at which the appointee shall have an opportunity to be heard in the appointee’s own defense…in which event said appointee shall not be removed until such public hearing has been held.

 

            15.  It is found that public hearings were held on July 6, and September 15, 27, and 28, 2010, concerning the resolution described in paragraph 11, above.  It is found that the complainant was represented by counsel, the town council was represented by the town attorney, and that the respondents were represented by outside counsel.  It is found that individual members of the commission were called to testify at the hearings, that many exhibits were offered by both the complainant and the town council, and that many objections/motions to strike were filed by the complainant, during the course of such hearings.

 

            16.  It is found that, on October 4, 2010, at a special meeting of the town council, the town council voted unanimously to approve the resolution described in paragraph 11, above.

 

            17.  It is found that, on or about October 28, 2010, the complainant filed a civil summons, in the superior court, against the town council of the Town of Windsor, and the individual members of the town council, alleging that the defendants’ action in removing the complainant from his position on the commission was unlawful.

 

            18.  Richard O’Connor, the attorney who represented the respondents in connection with the hearings described in paragraph 15, above, and who was present during the executive session, described in paragraph 2, above, testified at the hearing in this matter that the executive session was proper because he had not, as of the date of the meeting, had an opportunity to speak with his clients, who were to be called as witnesses at the hearings concerning the complainant’s removal, and that it would be extremely unfair if the complainant was permitted to meet with his attorney in private to discuss strategy, and he was not permitted the same opportunity.  According to Attorney O’Connor, the “written notice to [the] agency” of a pending claim, required by §1-200(8), G.S., is the complainant’s June 18, 2010 letter, described in paragraph 13, above (the June 18 letter).   

 

            19.  It is found that the complainant’s June 18 letter constitutes a pending claim within the meaning of §1-200(8), G.S.  It is further found that the respondents discussed, in executive session during their meeting, strategy with respect to the pending claim to which the complainant was a party because of his conduct as a member of the commission. 

 

            20.  It is therefore concluded that the respondent did not violate the FOI Act, as alleged in paragraph 2(a), above. 

             

            21.  With regard to the allegation described in paragraph 2(b), above, it is found that the agenda fairly apprised the public of the business that was to be transacted during the meeting.  Although the agenda stated “pending litigation Robert Fromer” and, as noted above, it is found that the respondents discussed a pending claim concerning Robert Fromer, it is further found that such agenda is sufficient, under the facts and circumstances of this case, to give the public notice that the respondents would be discussing a legal matter pertaining to the complainant in executive session.  

 

            22.  It is therefore concluded that the respondents did not violate the FOI Act as alleged in paragraph 2(b), above.

 

            The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

            1.    The complaint is hereby dismissed.

 

 

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of May 25, 2011.

 

 

 

___________________________

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:

 

Robert Fromer

P.O. Box 71

Windsor, CT 06095

 

Linnea Gilbert, Chairman, Inland Wetlands

and Watercourses Commission, Town of

Windsor; Ruth Jefferis, Willia Nemetz,

Paul St. Amand, and Lillard Jay Lewis, as

Members, Inland Wetlands and Watercourses

Commission, Town of Windsor; and Inland

Wetlands and Watercourses Commission

C/o Vincent W. Oswecki, Jr., Esq.

O’Malley, Deneen, Leary, Messina & Oswecki

20 Maple Avenue

P.O. Box 504

Windsor, CT 06095

 

 

 

___________________________

S. Wilson

Acting Clerk of the Commission

 

FIC/2010-474FD/sw/5/31/2011