In the Matter of a Complaint by FINAL DECISION


William Tronosky, Jr. and Gerald R. Karp,




against Docket #FIC 86-54


Newington Board of Fire Commissioners,


Respondent April 9, 1986


The above-captioned matter was heard as a contested case on March 18, 1986, at which time the complainants and the respondent appeared and presented testimony, exhibits and argument on the complaint.


After consideration of the entire record, the following facts are found:


1. The respondent is a public agency within the meaning of 1-18a(a), G.S.


2. On or about January 2, 1986 the respondent notified Newington's town clerk that "the regularly scheduled meeting of the Board of Fire Commissioners has been postponed to Thursday, January 23, 1986."


3. The agenda for the January 23, 1986 meeting of the respondent contained the items "minutes of previous meeting," "communications," "bills and vouchers," "public participation," "old business" and "new business."


4.     By letter of complaint postmarked on February 22, 1986 and received by the Commission on March 3, 1986, the complainants alleged that the January 23, 1986 meeting of the respondent was a special meeting within the meaning of 1-21(a), G.S., but that the respondent failed to provide a meeting notice which specified the business to be transacted. The complainants further alleged that the respondent conducted business other than that for which the available agenda provided notice.


Docket #FIC 86-54 Page Two


5. At the January 23, 1986 meeting the respondent voted to recommend to the town council that an appeal be filed regarding this Commission's decision in FIC #85-164, DeMaio and Tronosky v. Newington Volunteer Fire Department. Such an appeal was subsequently filed. The complainants requested that the respondent's actions at the January 23, 1986 meeting be declared null and void.


6. At hearing the respondent moved to dismiss the complaint, claiming that the Commission failed to hold a hearing within 20 days of its receipt of the complaint, as provided by 1-21i(b), G.S. A hearing having been held within 20 days of the Commission's receipt of the complaint on March 3, 1986, the respondent's motion was denied.


7. At hearing the respondent made a second motion to dismiss the complaint, claiming that the Commission did not serve notice to the respondent of the appeal until March 11, 1986, the date of the postmark on the notice received by the respondent, and that such delay violated 1-21i(b), G.S.


8. Notice of the complainants' appeal was sent to all parties on March 7, 1986, as indicated by the dates on the Order to Show Cause and Designation of Hearing Officer. Furthermore, the claim raised by the respondent is supported by neither the language of 1-21i(b) nor any other authority cited by the respondent. The respondent's second motion to dismiss was also denied.


9. The schedule of 1986 regular meetings placed on file by the respondent did not include January 23, 1986.


10. It is concluded that the respondent's January 23, 1986 meeting was a special meeting within the meaning of 1-21(a), G.S.


11. The respondent claims that it acted in good faith in connection with the January 23, 1986 meeting, as evidenced by the fact that the agenda for the meeting was made available well in advance. The respondent also claims that any errors would have been due to the inexperience of its chairman but that, in fact, no business was conducted on January 23, 1986 that did not appear on the agenda made available for the meeting.


12. It is found that "old business" and "new business," without more, provide no notice to the public of what a public agency might consider at a meeting.


Docket #FIC 86-54 Page Three


13. It is further found that nothing on the agenda of the January 23, 1986 meeting provided any notice to the public that the respondent would be considering the issue of whether it should recommend that an appeal be filed of a decision of the Freedom of Information Commission.


14. It is concluded that the respondent violated 1-21(a), G.S. when on January 23, 1986 it considered and took action on business not specified in the agenda which served, in part, as notice of the meeting.


15. It is found, however, that no purpose would be served by declaring null and void the respondent's January 23, 1986 actions. The Commission declines, therefore, to order the relief requested by the complainants.


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


1. The respondent shall henceforth prepare notices of special meetings which identify with specificity the business to be transacted and shall limit itself to the business so specified.


Approved by order of the Freedom of Information Commission at its regular meeting of April 9, 1986.


Karen J. Haggett

Clerk of the Commission