FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Lourdes O'Neil Haynes and Voices, Inc.,

 

Complainants

 

against Docket #FIC 88-475

 

Newtown Water Pollution Control Authority, Newtown Board of Selectmen, and Newtown Legislative Council, all of the Town of Newtown,

 

Respondents November 8, 1989

 

The above-captioned matter was heard as a contested case on January 19, 1989, at which time the complainants and the respondents 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 respondents are public agencies within the meaning of 1-18a(a), G.S.

 

2. It is found that the town of Newtown engaged Consulting Environmental Engineers, Inc. ("CEE") to conduct an update and revision of the town's wastewater facilities plan pursuant to a contract executed March 24, 1986 (the "contract").

 

3. It is found that beginning in January of 1988, CEE notified town officials that it was incurring cost overruns in excess of its contract payment.

 

4. It is found that a negotiating committee, composed at various times of certain members of the respondent Water Pollution Control Authority ("WPCA") and other town officials, was formed to meet and discuss with representatives of CEE its request for additional payment for services under the contract.

 

5. It is found that the negotiating committee's activities culminated in a meeting with representatives of CEE on October 31, 1988 at which the negotiating committee agreed that it would recommend to the WPCA a $43,000 increase in CEE's payment under the contract.

 

Docket #FIC 88-475 Page 2

 

6. At its regular meeting of November 9, 1988 the respondent WPCA convened in executive session on the advice of counsel for the stated purpose of discussing pending claims and litigation relating to the contract.

 

7. It is found that while convened in executive session, the WPCA discussed the negotiating committee's report on the proposed contract modification, voted to accept the recommendation of the negotiating committee for an increase of $43,000 in CEE's payment under the contract, and voted to recommend the increase to the Board of Selectmen and Legislative Council.

 

8. It is also found that at its special meeting of November 15, 1988, the WPCA met and publicly voted the matters described in paragraph 7, above.

 

9. At its special meeting of November 28, 1988, the respondent Board of Selectmen convened in executive session on the advice of counsel for the stated purpose of discussing strategy and negotiation of a claim for additional compensation made by CEE.

 

10. It is found that while convened in executive session, the Board of Selectmen discussed CEE's request for additional payment, the negotiating committee's recommendation, and the contract provisions under which additional payment was expected.

 

11. It is found that the Board of Selectmen then reconvened in public session and voted to direct the first selectman to communicate the negotiating committee's recommendation to the Legislative Council.

 

12. By letter of complaint dated and filed November 30, 1988, the complainants appealed to the Commission, alleging that the respondents improperly convened in executive session at the November 9 and November 28, 1988 meetings described in paragraphs 6 and 9, above.

 

13. At the hearing, the complainant withdrew her complaint against the respondent Legislative Council.

 

14. It is found that no litigation was pending between any of the respondents and CEE at the time of the November 9 and November 28, 1988 meetings described in paragraphs 6 and 9, above.

 

15. It is found that, pursuant to the contract, all claims between the town and CEE arising out of the contract involving an amount not exceeding $200,000 will be decided by arbitration, and that notice of demand for arbitration must be filed in writing with the other party to the contract and with the American Arbitration Association.

 

Docket #FIC 88-475 Page 3

 

16. It is also found that CEE's request for additional payment under the contract was resolved by the parties without CEE submitting a claim to arbitration.

 

17. It is concluded, therefore, that no claim was pending within the meaning of 1-18a(e)(2), G.S., between CEE and any of the respondents at the time of the November 9 and November 28 meetings.

 

18. It is also concluded that 1-18a(e)(2), G.S., does not permit the topics described in paragraphs 7 and 10, above, to be discussed or voted upon in executive session.

 

19. It is concluded therefore that the respondent WPCA violated 1-18a(e)(2) and 1-21(a), G.S., by convening in executive session for an impermissible purpose.

 

20. It is also concluded that the respondent Board of Selectmen violated 1-18a(e)(2) and 1-21(a), G.S., by convening in executive session for an impermissible purpose.

 

 

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

 

1. The complaint is dismissed as to the respondent Legislative Council.

 

2. The respondents WPCA and Board of Selectmen henceforth shall act in strict compliance with 1-18a(e)(2) and 1-21(a), G.S.

 

3. The respondents WPCA and Board of Selectmen shall cause to be posted in the town clerk's office or on the town clerk's bulletin board a copy of the final decision in this case for 30 days after receipt of the notice of final decision.

 

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

 

 

Tina C. Frappier

Acting Clerk of the Commission

 

Docket #FIC 88-475 Page 4

 

PURSUANT TO SECTION 4-180(c), G.S. THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

 

THE PARTIES TO THIS CONTESTED CASE ARE:

LOURDES O'NEIL HAYNES AND VOICES, INC.

P.O. Box 383

Southbury, CT 06488

 

NEWTOWN WATER POLLUTION CONTROL AUTHORITY, NEWTOWN BOARD OF SELECTMAN AND NEWTOWN LEGISLATIVE COUNCIL OF THE TOWN OF NEWTOWN

c/o Stephen D. Wippermann, Esquire

19 Church Hill Road

P.O. Box 37

Newtown, CT 06470

 

 

Tina C. Frappier

Acting Clerk of the Commission