In the Matter of a Complaint by FINAL DECISION


Charles Dixon and Waterbury Republican-American,




against Docket #FIC 88-430


Plymouth Planning and Zoning Commission,


Respondent February 8, 1989


The above-captioned matter was heard as a contested case on December 5, 1988, at which time the complainants 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. The respondent held a special meeting on Thursday, October 6, 1988, to meet with an attorney, David Losee, on the subject of an ordinance proposed by the Plymouth town council to disband the respondent. A public hearing on the proposed ordinance was scheduled for Wednesday, October 12, 1988.


3. The respondent's October 6, 1988 special meeting convened at 4:45 p.m. and adjourned at 5:15 p.m. Immediately thereafter several members of the respondent, with the help of a secretary, began making copies of documents for Attorney Losee's review in connection with his representation of the respondent. The chairman of the respondent remained available to Attorney Losee to answer questions.


4. At some time between 5:15 p.m. and 6:10 p.m. on October 6, 1988 it occurred to the chairman of the respondent that no vote had been taken to retain Attorney Losee as counsel and, from 6:10 p.m. to 6:15 p.m., the respondent held an "emergency meeting" for the purpose of voting to retain the services of Attorney Losee. All members present at the special meeting also attended the 6:10 p.m. meeting.


Docket #FIC 88-430 Page Two


5. Minutes of the October 6, 1988 "emergency meeting" state that the nature of the emergency was that "because of the time frame involved," the respondent lacked the time necessary for filing a special meeting notice.


6. By letter of complaint filed with the Commission on October 25, 1988 the complainants alleged that between the adjournment of the October 6, 1988 special meeting and the convening of the "emergency meeting" the respondent held an unnoticed meeting for which no minutes were filed. The complainants further alleged that no emergency existed to justify the convening of the 6:10 p.m. meeting without notice.


7. It is found that although all members present at the special meeting remained in the town hall and were available for the 6:10 unnoticed meeting, no meeting of the respondent, within the meaning of 1-18a(b), G.S., was held between 5:15 p.m. and 6:10 p.m.


8. It is further found that at the time it was realized that no vote had been taken to retain Attorney Losee the town clerk's office was closed and notice of a special meeting could not have been posted earlier than the start of business on Friday, October 7, 1988. Monday, October 10, 1988 was a legal holiday on which the town clerk's office would also be closed.


9. It is concluded that, pursuant to 1-21(b), G.S., the respondent could not have held a special meeting with proper notice any earlier than the start of business on Tuesday, October 11, 1988.


10. The respondent claims that the necessity of retaining Attorney Losee as soon as possible prior to the October 12, 1988 public hearing constituted an emergency within the meaning of 1-21(a), G.S.


11. The Commission recognizes the urgency of the situation facing the respondent on October 6, 1988. However, it was an oversight of the respondent, not a true emergency which resulted in the unnoticed meeting which began at 6:10 p.m. A vote to hire Attorney Losee could and would have been taken at a noticed public meeting had it not been for the respondent's error.


12. It is concluded that the respondent's October 6, 1988 meeting, without public notice, violated 1-21(a), G.S.


Docket #FIC 88-430 Page Three


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 1-21(a), G.S., which provides that a meeting may be held without notice only in case of emergency.


Approved by order of the Freedom of Information Commission at its regular meeting of February 8, 1989.


Karen J. Haggett

Clerk of the Commission