FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Sharon Daly,

 

Complainant

 

against Docket #FIC 87-86

 

Public Utilities Commission of the Town of Wallingford,

 

Respondent June 24, 1987

 

The above-captioned matter was heard as a contested case on May 4, 1987, at which time the complainant and the respondent 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:

 

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

 

2. In the early 1950s the warden of the Borough of Wallingford entered into 4 contracts with a developer to guarantee a cap on sewer rates for properties in an area currently known as West View Hills. The contracts, good for 99 years, applied to approximately 360 homes and specified maximum rates of from $10 to $15 a year.

 

3. The Town of Wallingford recently received a federal grant in the amount of $15 million for a new sewage treatment plant. One condition of the grant is the imposition of uniform sewer user charges. As a result, the Town of Wallingford, in 1986, issued uniformly-imposed sewer user bills averaging $122 a year.

 

4. Upon receipt of their 1986 sewer user bills, certain West View Hills homeowners made known their opinion that they were exempted from the new, higher rates for sewer use. The concerns raised by the homeowners led to a meeting, on January 29, 1987, of the respondent and 6 representatives of the homeowners. The homeowners' claims of exemption were also discussed at meetings of the respondent held on February 13, 1987 and February 24, 1987.

 

Docket #FIC 87-86 Page Two

 

5. The respondent held a fourth meeting on February 28, 1987 during which it convened in executive session "for the purpose of discussing pending litigation with regard to the 'Westview Hills' sewer agreement situation."

 

6. Present at the February 28, 1987 executive session, in addition to members of the respondent, were 6 members of the Wallingford town council, the mayor, an assistant town attorney, the director of public utilities and a law clerk.

 

7. By letter of complaint filed with the Commission on March 26, 1987 and amended on April 2, 1987 the complainant alleged that the respondent lacked a proper purpose for the executive session because no litigation was pending as of the date of the meeting and that the attendance of persons other than the members of the respondent violated 1-21g(a), G.S. An additional claim, regarding the minutes of the meeting, was withdrawn at hearing following submission by the respondent of amended minutes.

 

8. The complainant requested that any records of the executive session be ordered disclosed and that, if no such records exist, the respondent be ordered to prepare an account of the executive session.

 

9. The respondent claims the February 28, 1987 executive session was properly held pursuant to 1-18a(e)(2), G.S. to discuss strategy and negotiations with respect to pending claims and litigation, citing a 1979 decision of this Commission, FIC #78-249, Robert H. Boone v. Town of Vernon and Town Council of the Town of Vernon.

 

10. It is found that as of the date of hearing no litigation had been filed concerning the West View Hills homeowners' assertions regarding their sewer user charges.

 

11. It is concluded that the February 28, 1987 executive session was not properly convened to discuss strategy and negotiations with respect to pending litigation within the meaning of 1-18a(e)(2), G.S.

 

12. It is also found that the homeowners' assertions were in the nature of a petition to the respondent, a public agency, acting in its administrative capacity. The respondent's response to the homeowners' assertions was as an administrative agency exercising its decision-making authority, not as a respondent to a claim within the meaning of 1-18a(e)(2), G.S.

 

Docket #FIC 87-86 Page Three

 

13. It is concluded that the February 28, 1987 executive session was not properly convened to discuss strategy and negotiations with respect to a pending claim within the meaning of 1-18a(e)(2), G.S.

 

14. It is further concluded that the respondent's February 28, 1987 executive session violated 1-21, G.S.

 

15. The Commission notes that the decision in the Boone case was explicitly limited to the facts therein and that a threatened lawsuit was, in fact, filed shortly after the questioned executive session was held.

 

16. The respondent claims that the presence of persons other than members of the respondent was necessary to inform them about the homeowners' objections to the sewer user charges, to take advantage of their particular knowledge of financial and legal aspects of the matter and to discuss strategy for reaching a settlement.

 

17. It is found that the respondent failed to prove that it limited attendance at the February 28, 1987 executive session as required by 1-21g(a), G.S.

 

18. At hearing the respondent stated that the February 28, 1987 executive session was not tape recorded and was unable to state whether any notes of the meeting existed.

 

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

 

1. The respondent henceforth shall convene in executive session only for one or more of the proper purposes listed at 1-18a(e), G.S. and shall limit attendance at such executive sessions to members of the respondent and to persons whose presence is necessary within the meaning of 1-21g(a), G.S.

 

2. The respondent forthwith shall provide the complainant with copies of all existing records which reflect what was discussed at the February 28, 1987 executive session. If no such records exist, the respondent, within one week of the Final Decision in this matter, shall provide the complainant with an affidavit so stating.

 

Docket #FIC 87-86 Page Four

 

3. If no records reflecting what was discussed at the respondent's February 28, 1987 executive session exist, the respondent, within two weeks of the Final Decision in this matter, also shall provide the complainant with a memorandum reflecting, to the fullest extent possible, the discussions and occurrences at such executive session.

 

Approved by order of the Freedom of Information Commission at its regular meeting of June 24, 1987.

 

 

Catherine I. Hostetter

Acting Clerk of the Commission