FREEDOM OF INFORMATION COMMISSION OF THE STATE OF CONNECTICUT
In the Matter of a Request     for Advisory Opinion
	Advisory Opinion   #72
Michael F. Rizzuti, Applicant

On August 10, 1988, the Commission considered and agreed to respond to the request for an advisory opinion filed by the applicant. In his request, the applicant seeks the Commission's opinion as to what constitutes a two-thirds vote of a five-member public agency for purposes of Conn. Gen. Stat. §1-21(a).

A

Conn. Gen. Stat. §1-21(a) provides in pertinent part:

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 [regular] meetings.

and:

A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an 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 said section.

B

In the absence of controlling law, it is the Commission's opinion that a two-thirds vote in the context of Conn. Gen. Stat. §1-21(a) means not less than two-thirds of the votes cast by persons legally entitled to vote, excluding those present but not voting. If a public agency consists of members whose number is not evenly divisible by three, then two-thirds of the members of that. agency will be a fraction, and a two-thirds vote will be the next whole number which is greater than the fractional two-thirds. Thus, in the situation presented by the applicant, in an agency consisting of five members present and voting, two-thirds of the members of the agency is three and one-third members, and a two-thirds vote requires four votes. Although four votes constitute eighty percent of the votes of five members, four votes are necessary because three votes (sixty percent of the votes of five members) is less than two-thirds of the votes of five members.

Although not binding on the Commission, concurring opinions may be found in Roberts Rules of Order Newly Revised (Scott, Foresman and Company, 1981) §43 at 340; and in Annot., 43 A.L.R. 2d 698 ("What constitutes requisite majority of members of municipal council voting on issue"):

Although the statutory requirement of a larger vote than a bare majority for certain types of action by a municipal council sometimes requires a much larger percentage of the whole body when the council is composed of few members, the courts generally insist that the statutory percentage be followed to the letter, with an extra vote being required whenever there is a fraction (emphasis added; footnote omitted)

Annot., 43 A.L.R. 2d 698 §1 at 701.

C

Based 'upon the foregoing analysis, it is the Commission's opinion that, with regard to Conn. Gen. Stat. §1-21(a), in a public agency consisting of five members present and voting, the vote required to consider and act upon subsequent business not included in the filed agenda of a regular meeting, and the vote required to hold an executive session as defined in subsection (e) of section 1-18a, is four.

                                                                                            By Order of the Freedom of
                                                                                            Information Commission

________________________
                                                                                            Curtis Cofield, Chairman of
                                                                                            of the Freedom of Information
                                                                                            Commission

Date ___________________

Ordered_________________

Catherine H. Lynch,
Acting Clerk of the Commission