FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Susan G. Kniep, Wanda Franek and Marylee Hickey,

 

Complainants

 

against Docket #FIC 87-250

 

Democratic Members of the East Hartford Town Council, Jose Ramirez, Assistant Corporation Counsel of the Town of East Hartford and Mayor of the Town of East Hartford,

 

Respondents January 13, 1988

 

The above-captioned matter was heard as a contested case on October 1, 1987, at which time the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. At hearing, the complainants withdrew their complaint as it related to Patricia Gately, who was not a member of the East Hartford town council at the time of the actions complained of.

 

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

 

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

 

2. By letter of complaint filed with the Commission on September 8, 1987 the complainants alleged as follows concerning an August 18, 1987 meeting of the East Hartford town council at which the council voted to approve new amusement license fees:

 

a. That the matter of changing amusement license fees

was neither included in the agenda of the meeting nor added to the agenda by a two-thirds vote;

 

b. That during a recess in the meeting the respondent

assistant corporation counsel ("respondent counsel") met improperly in closed session with the respondent Democratic members of the East Hartford town council ("respondent Democrats"); and

 

Docket #FIC 87-250 Page Two

 

c. That the respondent Democrats, the respondent

counsel and/or the respondent mayor may have met, without public notice, prior to the meeting "to orchestrate the approval of the adopted fee."

 

3. The complainants asked that the East Hartford town council's reduction of the license fee be declared null and void and that the Commission impose civil penalties against the respondents.

 

4. It is found that on August 6, 1987, the subcommittee on fees of the East Hartford town council met to discuss and hear public comment concerning a $10 license fee imposed upon movie theatres and adult book stores pursuant to local ordinance #5-2(3)a. At the conclusion of the meeting the two subcommittee members present voted to refer the ordinance back to the town council's ordinance committee prior to the setting of any new fees, and to continue to charge the existing $10 fee.

 

5. In an August 6, 1987 memorandum to the chairman of the subcommittee on fees the respondent mayor recommended that the license fee be reduced to $1.50 per performance, retroactive to July 1, 1987. On August 11, 1987 the respondent mayor forwarded copies of his August 6, 1987 memorandum to the members of the East Hartford town council.

 

6. The East Hartford town council held a meeting August 18, 1987, the agenda for which included the item "Reports of Boards, Commissions, and Committees - A. Report from Subcommittee on Fees." Also included in the agenda was the item "Referral to Ordinance Committee: 1. Sec. 5-2/Amusement License Fees."

 

7. At the August 18, 1987 meeting of the East Hartford town council the subcommittee on fees presented its recommendation that the Town of East Hartford continue charging the $10 license fee pending review by the ordinance committee. The chairman of the subcommittee then moved "that the fees be changed from $10 per performance to $1.50 per performance retroactive." Following discussion of the matter the East Hartford town council voted 4-3 to reduce the fee from $10 to $1.50 per performance. The three complainants voted against the reduction.

 

8. The complainants claim that the agenda of the August 18, 1987 meeting gave no notice to the public that the license fees would be reduced, and that by voting to do so the respondent Democrats violated 1-21(a), G.S.

 

Docket #FIC 87-250 Page Three

 

9. It is found that the agenda for the East Hartford town council's August 18, 1987 meeting gave fair notice to the public that the matter of license fees would be before it and that there existed the possibility that action would be taken concerning the fees.

 

10. It is concluded that the respondent Democrats' August 18, 1987 vote to reduce amusement license fees did not violate 1-21(a), G.S.

 

11. It is found that during the August 18, 1987 meeting a recess was called to allow the respondent counsel to research whether a vote of the 5 Democrats present against the 3 Republicans present constituted a two-thirds vote within the meaning of 1-21(a), G.S. During such recess the respondent Democrats met in closed session.

 

12. Upon returning from his office the respondent counsel stopped by the room in which the respondent Democrats were gathered and reported his conclusion that a 5-3 vote did not, in fact, constitute a two-thirds vote. There was conflicting testimony regarding the duration of the respondent counsel's stay in the closed session and the issue of whether 4 or 5 of the respondent Democrats were present at the time of the respondent town counsel's arrival.

 

13. The complainants claim that the respondent counsel's presence in the closed session transformed it from a caucus to a meeting, within the meaning of 1-18a(b), G.S., and that holding such meeting in closed session violated 1-21(a), G.S.

 

14. It is found that prior to the arrival of the respondent counsel one of the respondent Democrats left the closed session.

 

15. The respondents claim that the participation of the respondent counsel in the closed session lasted only a few seconds, that it consisted of a brief announcement of his conclusions on the legal issue and that the chairman of the town council advised him to relay immediately to the complainants his conclusion, which he did.

 

16. The respondents further claim that because only four of the five respondent Democrats remained in the closed session at the time of the respondent counsel's arrival, less than a quorum was present and the closed session was therefore not a meeting within the meaning of 1-18a(b), G.S.

 

17. Finally, the respondents claim that the session was not "closed" because the door to the room remained open following the respondent counsel's entry.

 

Docket #FIC 87-250 Page Four

 

18. It is found that to the extent that the respondent town counsel attended and participated in the respondent Democrats' August 18, 1987 closed session, such session was not a caucus within the meaning of 1-18a(b), G.S.

 

19. It is further found that whether the door was open or closed is meaningless, given the fact that the gathering was held in a room to which neither the public nor the complainants were admitted.

 

20. It is found, however, that the respondent counsel's brief comment to four of the respondent Democrats did not constitute a hearing or other proceeding of a public agency, nor was it a convening or assembly of or communication by or to a quorum of the East Hartford town council.

 

21. It is concluded that the respondent counsel's comment to the four Democrats was not a meeting within the meaning of 1-18a(b), G.S.

 

22. The Commission notes that the respondent counsel's comments to the respondent Democrats while convened in a closed session created an appearance of impropriety and raised legitimate questions in the minds of the complainants.

 

23. It is found that no evidence was offered at hearing that any of the respondents met prior to August 18, 1987, without notice, to arrange a reduction in the amusement license fee.

 

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.

 

2. The Commission cautions the respondents that the above findings and conclusions are strictly limited to the facts of the case and should in no way be construed as an endorsement of the manner in which the respondent counsel communicated with the respondent Democrats. The respondents are further advised that the absence of a quorum in no way guarantees that a gathering is not a meeting within the meaning of 1-18a(b), G.S.

 

Approved by order of the Freedom of Information Commission at its regular meeting of January 13, 1988.

 

 

Catherine H. Lynch

Acting Clerk of the Commission