FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

H. Richard Borer, Sr.,

 

Complainant

 

against Docket #FIC 88-19

 

West Haven Planning and Zoning Commission and Mayor of West Haven's Solid Waste Task Force,

 

Respondents September 14, 1988

 

This matter originally was heard as a contested case on March 3, 1988. The hearing officer's report issued on March 16, 1988, was administratively withdrawn on March 22, 1988 for failure to name a necessary party. An amended notice of hearing and order to show cause was issued on April 5, 1988 and the above-captioned matter was heard as a contested case on May 17, 1988, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. A new hearing officer's report was issued on June 2, 1988 and was scheduled to be voted on by the Commission at its August 10, 1988 meeting. At its meeting of July 27, 1988, the Commission erroneously voted on and unanimously adopted the hearing officer's report. The Commission, at its August 10, 1988 meeting, voted to reopen and to reconsider the case. At that time, the hearing officer unilaterally withdrew his June 2, 1988 report.

 

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. The Commission takes administrative notice of the letter of complaint dated January 15, 1988 and filed with it on January 19, 1988, in which the complainant alleged that the respondents violated the Freedom of Information Act in that:

 

a. They failed to comply with the Commission's orders in Docket #FIC 87-219 and Docket #FIC 87-220.

 

Docket #FIC 88-19 Page 2

 

b. The respondent commission held a regular meeting on January 12, 1988, less than thirty days after filing a schedule of its regular meetings for the ensuing year.

 

c. The minutes of the respondent commission's November 17, 1987 special meeting failed to reflect the votes taken in executive session at that meeting.

 

3. The complainant requested the votes, if any, taken at the respondent commission's January 12, 1988 meeting be declared null and void.

 

4. The respondents claim:

 

a. They have complied with the Commission's orders in Docket #FIC 87-219 and Docket #FIC 87-220.

 

b. The respondent commission properly held a regular meeting on January 12, 1988, thirty days after filing a schedule of its regular meetings for the ensuing year.

 

c. The Commission lacks jurisdiction over that portion of the complaint concerning the November 17, 1987 special meeting because the complaint was not filed within the time limits set forth in 1-21i(b), G.S.

 

5. The respondents requested the imposition of a civil penalty against the complainant.

 

6. The Commission takes administrative notice of the testimony and exhibits presented at the hearing held on March 3, 1988.

 

7. At the hearing held on March 3, 1988, the complainant specifically alleged that the respondent task force failed to comply with paragraphs 2 and 3 of the Commission's order in Docket #FIC 87-220.

 

8. Paragraphs 2 and 3 of the Commission's order in Docket #FIC 87-220 state:

 

a. "The respondent shall provide the complainant with copies of all existing records which reflect what was discussed at the July 14, 1987 and the July 16, 1987 executive sessions. 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 88-19 Page 3

 

b. "If no records reflecting what was discussed at the July 14, 1987 and July 16, 1987 executive sessions exist, the respondent, within two weeks of the final decision in this matter, also shall provide a memorandum reflecting, to the fullest extent possible, the discussions and occurrences at the executive sessions."

 

9. It is found that on February 24, 1988, the respondent task force provided the complainant with copies of the existing minutes of the July 14, 1987 and July 16, 1987 executive sessions.

 

10. It is found the complainant already had copies of the records described in paragraph 9, above, prior to filing his complaint in Docket #FIC 87-220.

 

11. It is found the records described in paragraph 9, above, only reflected the purposes of the executive sessions and the fact that no agreement was reached between the City of West Haven and Solid Waste Disposal, Inc.

 

12. It is found the records described in paragraph 9, above, failed to reflect what was discussed at the July 14, 1987 and July 16, 1987 illegal executive sessions within the meaning of paragraph 2 of the Commission's order in Docket #FIC 87-220.

 

13. It is found, however, that the respondent task force appended to the minutes of its July 31, 1987 meeting certain records reflecting what was discussed at the July 14, 1987 and July 16, 1987 executive sessions.

 

14. It also is found that at the hearing held on May 17, 1988, the respondent task force provided the complainant with a copy of the records described in paragraph 13, above.

 

15. It further is found the respondent task force failed to provide the complainant with a copy of the records described in paragraph 13, above, within the time limits set forth in paragraph 3 of the Commission's order in Docket #FIC 87-220.

 

16. It is concluded the respondent task force failed to comply with the Commission's order in Docket #FIC 87-220 within the meaning of 1-21k(b), G.S.

 

17. With respect to the claim in paragraph 2b, above, it is found the respondent commission filed a 1987 meeting schedule with the city clerk on January 28, 1987. The 1987 meeting schedule indicated that the respondent commission would hold a public hearing on January 12, 1988 and a regular meeting on January 26, 1988.

 

Docket #FIC 88-19 Page 4

 

18. It is found that the respondent commission filed a 1988 meeting schedule with the city clerk on December 9, 1987. The 1988 meeting schedule contained the dates for its public hearings and the dates for its regular meetings.

 

19. At the March 3, 1988 hearing, the parties disputed the date on which the 1988 meeting schedule was filed with the city clerk. The respondents alleged that the complainant tampered with a copy of the 1988 meeting schedule he received from the city clerk. The Commission notes that it lacks jurisdiction over that issue.

 

20. It is found the 1988 meeting schedule indicated the respondent commission would hold a public hearing on January 12, 1988 and a regular meeting on January 26, 1988.

 

21. It is found the respondent commission held a public hearing on January 12, 1988.

 

22. It also is found the respondent commission posted a "call for a public hearing," indicating that it would hold a public hearing on January 12, 1988 at 7:30 p.m.

 

23. It is concluded the respondent commission properly noticed its January 12, 1988 public hearing within the meaning of 1-21(a), G.S.

 

24. It is found, however, that subsequent to the public hearing, the respondent commission held another meeting, commencing at 11:25 p.m.

 

25. It is found the respondent commission filed an agenda for its second January 12, 1988 meeting described in paragraph 24, above, indicating that it would hold a regular meeting on January 12, 1988 at 7:30 p.m.

 

26. It is found the respondent commission's second January 12, 1988 meeting described in paragraph 24, above, was a special meeting because it was held on a date and at a time other than those specified in its 1988 schedule of regular meetings.

 

27. It is found the respondent commission failed to post proper notice of its second January 12, 1988 special meeting described in paragraph 24, above. The respondent commission should have noticed the meeting as a special meeting and should have convened the meeting at the time specified therein.

 

28. Since the second January 12, 1988 meeting was not a regular meeting, the Commission declines to address the issue of whether the respondent commission held a regular meeting within 30 days after filing a schedule of its regular meetings.

 

Docket #FIC 88-19 Page 5

 

29. It is concluded, however, that the respondent commission technically violated 1-21(a), G.S., by failing to give the public proper notice of its second January 12, 1988 special meeting described in paragraph 24, above.

 

30. The Commission declines to declare the votes taken at the respondent commission's second January 12, 1988 special meeting null and void.

 

31. The Commission suggests that the respondent commission might have avoided some of the confusion surrounding its January 12, 1988 meetings by specifying in its notice of special meeting that it would consider other items of business after holding a public hearing.

 

32. At the hearing on March 3, 1988, the Commission ruled that it lacked jurisdiction over an alleged violation concerning the conduct of the respondent commission's November 17, 1987 meeting because the letter of complaint was not filed within the prescribed time limits set forth in 1-21i(b), G.S.

 

33. It is found, however, that the Commission has jurisdiction over that portion of the complaint concerning the respondent commission's failure to record the votes taken in executive session at its November 17, 1987 special meeting in the minutes of that meeting.

 

34. Pursuant to 1-21j-36 of the Regulations of Connecticut State Agencies, the Hearing Officer, on August 12, 1988, designated the minutes of the respondent commission's November 17, 1987 special meeting as an after-filed exhibit, Complainant's Exhibit D.

 

35. It is found that the respondent commission adopted incorrect minutes of its November 17, 1987 special meeting at its second meeting held on January 12, 1988.

 

36. It is found that the minutes of the November 17, 1987 special meeting indicated that the respondent commission convened in executive session to discuss pending litigation and that "votes were taken, no decisions were made."

 

37. It is found, however, that no votes were taken at the executive session and the minutes of the respondent commission's November 17, 1987 meeting were incorrect.

 

38. At the March 3, 1988 hearing, the secretary of the respondent commission and the Deputy Corporation Counsel, by affidavits, indicated that the minutes of the respondent commission's November 17, 1987 special meeting would be corrected at the upcoming meeting of the respondent commission.

 

Docket #FIC 88-19 Page 6

 

39. It is concluded that the respondent commission did not violate 1-21(a), with respect to the recording of votes in the minutes of its November 17, 1987 special meeting.

 

40. The Commission declines to impose a civil penalty against the complainant.

 

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

 

1. The respondent commission shall forthwith provide the complainant with a copy of the corrected minutes of its November 17, 1987 special meeting.

 

2. Henceforth, the respondent commission shall act in strict compliance with the requirements of 1-21(a), G.S., regarding posting notices of special meetings.

 

3. The Commission cautions the respondent task force that failure to comply with an order of the Commission could subject its members to criminal penalties, pursuant to 1-21k(b), G.S., should this matter be referred to the Office of the State's Attorney.

 

Approved by order of the Freedom of Information Commission at its special meeting of September 14, 1988.

 

Catherine H. Lynch

Acting Clerk of the Commission