FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by FINAL DECISION

 

Beverly L. York,

 

Complainant,

 

against Docket #FIC 89-90

 

Norman R. French, Windham First Selectman and Windham Board of Selectmen,

 

Respondents October 25, 1989

 

The above-captioned matter was heard as a contested case on August 15, 1989, at which time the complainant and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.

 

On August 16, 1989, the Hearing Officer ordered the respondent first selectman to file a post-hearing exhibit, in the form of an affidavit, by August 25, 1989. The respondent first selectman filed his affidavit on October 2, 1989.

 

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. By letter dated February 21, 1989, the complainant requested the following documents referred to at the respondent board of selectmen's February 7, 1989:

 

a. a written legal opinion from former town attorney Dan Lamont concerning the status of Old Bush Hill Road,

 

b. a map of the Old Bush Hill Road area that selectman Martineau and the respondent first selectman reviewed a few weeks before the February 7, 1989 meeting,

 

c. and a schedule of road work done on Old Bush Hill Road for a decade starting in 1928.

 

3. Also on February 21, 1989, the respondent board of selectmen held a regular meeting during which it convened in executive session.

 

4. By letter dated February 28, 1989, the respondent first selectman responded to the complainant's records request,


 

Docket #FIC 89-90 Page Two

 

stating that he was waiting for the map to come from the town attorney and that he could not locate the other records.

 

5. By letter dated March 3, 1989, and filed with the Commission on March 8, 1989, the complainant appealed to the Commission, alleging the denial of her records request. The complainant also alleged the respondent board of selectmen improperly convened in executive session during its February 21, 1989 regular meeting. In her complaint, the complainant requested the imposition of a civil penalty against the respondents.

 

6. The respondents claim that they provided the complainant with the map and that the other records requested could not be located. The respondents also claim that the executive session was properly held to discuss pending litigation.

 

7. It is found that the complainant first requested the records in question from the respondent first selectman in person on February 9, 1989.

 

8. It is found that the complainant first saw the map described in paragraph 3b, above, on March 13, 1989.

 

9. It is found that the respondent first selectman did not provide the complainant access to the map until more than a month after she requested access to it in person.

 

10. Thus it is concluded that the respondent first selectman violated 1-19(a), G.S., by failing to provide the complainant with access to the map reasonably promptly during regular business hours.

 

11. It is also found that the respondent first selectman did not provide the complainant access to the map until three weeks after her written request.

 

12. It is concluded, therefore, that the respondent first selectman violated 1-15, G.S., by failing to provide access to the map reasonably promptly upon written request.

 

13. It is found that the respondents and other town officials and employees have been unable after some effort to find the records described in paragraphs 3a and c, above.

 

14. It is concluded, therefore, that it is likely the records described in paragraphs 3a and c, above, no longer exist.

 

Docket #FIC 89-90 Page Three

 

 

15. It is found that, before convening in executive session at its February 21, 1989 meeting, the respondent board of selectmen failed to publicly state the purpose of the executive session.

 

16. It is found that, while the respondent board voted to move the executive session to a different place on the agenda, it failed to take a separate vote to go into executive session.

 

17. It is concluded that the respondent board violated 1-21(a), G.S., by not publicly stating the reason for and not voting to convene in executive session.

 

18. It is further found that the agenda for the respondent board's February 21, 1989, meeting lists item twelve only as "Executive Session," but does not specify the topic for discussion.

 

19. It is found that this item on the agenda did not communicate to the public in any meaningful way what matter the respondent board intended to take up.

 

20. It is concluded, therefore, that the respondent violated 1-21(a), G.S., by failing to provide an agenda that communicated to the public the items to be taken up at the meeting.

 

21. It is further found that in the executive session the members of the respondent board discussed abandoning Old Bush Hill Road versus continuing its use.

 

22. It is found that the respondent board had received a letter from a developer indicating he would not hesistate to go to court if the actions he urged were not taken by the board.

 

23. It is found, however, that no strategy or negotiations with respect to a pending claim or litigation within the meaning of 1-18a(e)(2), G.S., was discussed in the executive session.

 

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

 

25. In addition it is found that the minutes of the respondent board's February 21, 1989 meeting fail to list who attended the executive session and what the purpose of the executive session was.

 

26. It is concluded that the respondent board further violated 1-21(a), G.S., by not including the executive session

 

Docket #89-90 Page Four

 

purpose and attendees in its meeting minutes.

 

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

 

1. The respondent first selectman henceforth shall act in strict compliance with 1-15 and 1-19(a), G.S., promptly fulfilling requests for public records.

 

2. The respondent board henceforth shall act in strict compliance with 1-21(a), G.S., following proper procedure to convene in executive session and filing proper agendas and minutes.

 

4. The respondent board henceforth shall act in strict compliance with 1-18a(e) and 1-21(a), G.S., limiting executive sessions to permissible purposes.

 

5. The respondents shall attend an educational workshop to be given by a Commission staff attorney no more than sixty days after the mailing of the notice of final decision in this matter. The respondents shall invite to the workshop in writing all municipal Windham employees and officers, both incumbent and newly elected.

 

6. The Commission declines to impose a civil penalty against the respondents.

 

Approved by order of the Freedom of Information Commission at its regular meeting of October 25, 1989.

 

 

Tina C. Frappier

Acting Clerk of the Commission

 

Docket #89-90 Page Five

 

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:

BEVERLY L. YORK

RFD 1, Bush Hill Road

Willimantic, CT 06226

 

NORMAN R. FRENCH, WINDHAM FIRST SELECTMAN AND WINDHAM BOARD OF SELECTMEN

c/o Joan B. Sinder, Esquire

756 Main Street

Willimantic, CT 06226

 

 

Tina C. Frappier

Acting Clerk of the Commission