In the Matter of a Complaint by FINAL DECISION


Lorraine Daveluy,




against Docket #FIC 88-347


Town of Plymouth Planning and Zoning Commission,


Respondent April 12, 1989


The above-captioned matter was heard as a contested case on December 21, 1988, 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 and conclusions of law are reached:


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


2. During its August 25, 1988 regular meeting, the respondent convened in executive session, and the following people were present throughout the executive session: five members of the respondent, the owner of certain property, the property owner's attorney, one Linda Lane, the town attorney, the respondent's officer manager, the respondent's two enforcement officers and the Plymouth director of public works.


3. By letter dated August 28, 1988, and filed with the Commission on September 2, 1988, the complainant appealed to the Commission, alleging the respondent did not give proper notice of the executive session and that it was held for an impermissible purpose.


4. The respondent claims it convened in executive session to discuss pending claims and litigation as allowed by 1-18a(e)(2), G.S.


5. It is found that in the executive session the respondent discussed Mr. Heindl's threats to sue the respondent because of its handling of matters pertaining to his property known as Terry-top Acres.


6. It is found that the agenda for the respondent's August 25, 1988 meeting, which was filed with the town clerk on August 22, 1988, contains no reference to either Mr. Heindl or Terry-top Acres.



Docket #FIC 88-347 Page Two


7. It is found that a notice filed with the town clerk on August 24, 1988, states that the respondent will be meeting in executive session at its August 25, 1988 meeting and that it "will be discussing pending litigation."


8. It is concluded, therefore, that no agenda nor anything that could be perceived as an agenda amendment notified the public twenty-four hours before the meeting that matters concerning Mr. Heindl's property, Terry-top Acres, would be discussed at the August 25, 1988 meeting.


9. It is found that the respondent did not vote in public session to take up the matter of Mr. Heindl's property.


10. Thus it is concluded that the respondent violated 1-21(a), G.S., by taking up an item not on the agenda at a regular meeting without two-thirds of its members voting to do so.


11. It is found that on August 25, 1988, no litigation or claim was pending against the respondent pertaining to Terry-top Acres.


12. Thus it is concluded that the respondent violated 1-18a(e), G.S., by convening in executive session for an impermissible purpose.


13. It is also found that the respondent failed to prove that the presence of each of those individuals who was not a member of the respondent and attended the executive session was necessary throughout the executive session to present testimony or opinion.


14. Thus it is concluded that the respondent violated 1-21g, G.S., by allowing non-members to attend the executive session beyond the time their presence was necessary to give testimony or opinion.


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 act in strict compliance with 1-18a(e), 1-21(a) and 1-21g, G.S.


Docket #FIC 88-347 Page Three


2. It is hereby ordered that the respondent's members shall attend an educational workshop on Freedom of Information Act requirements, to be led by a Commission staff attorney, no later than sixty days after the mailing of the notice of final decision in this case. The respondent shall notify the mayor, the town attorney and the Town Council of the workshop and shall request their attendance.


Approved by order of the Freedom of Information Commission at its regular meeting of April 12, 1989.



Karen J. Haggett

Clerk of the Commission