FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Henry Gardiner and Scott Gardiner,
against Docket #FIC 89-156
East Lyme Zoning Commission,
Respondent December 18, 1989
The above-captioned matter was heard as a contested case on September 28, 1989, at which time the complainants and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. This case was consolidated for hearing with Docket Nos. FIC 89-157, FIC 89-158 and FIC 89-159.
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 the respondent's April 6, 1989 regular meeting, it convened in executive session.
3. By letter dated and filed with the Commission on May 4, 1989, the complainants appealed to the Commission, alleging the executive session was held illegally and requesting a null and void order.
4. It is found that before the executive session the respondent's chairperson stated its purpose was to meet with the respondent's legal counsel about threats or statements made about items on the agenda.
5. It is found that the respondent next took the required vote to convene in executive session.
6. It is found that the executive session lasted only ten or fifteen minutes, some of which time the respondent's members spent leaving the meeting room, reconvening in another room, and then returning to their original meeting room.
7. It is found that in the executive session the respondent's chairperson introduced the respondent's members to the respondent's new special counsel.
Docket #FIC 89-156 Page Two
8. It is found that also in the executive session one of the respondent's members asked the new attorney whether certain zoning proposals currently before the respondent would stand up in court.
9. It is found that the respondent's attorney replied that if all technical requirements are met the courts usually uphold municipal zoning boards' proposals.
10. It is found that the minutes of the respondent's April 6, 1989 meeting state the purpose of the executive session as: "to meet with legal representative from Robinson, Robinson & Cole."
11. It is found that this statement is listed under a heading, repeated verbatim from the meeting's agenda, as "Zoning Commission proposal to amend Zoning Regulations to Establish RU-120 Rural District Regulations."
12. The respondent claims that it convened in executive session to discuss strategy and negotiations with respect to pending claims and litigation, pursuant to 1-18a(e)(2), G.S.
13. It is concluded that being introduced to an attorney does not constitute a discussion of strategy and negotiations with respect to pending claims and litigation, within the meaning of 1-18a(e)(2), G.S.
14. It is found that on April 6, 1989 no litigation or claim to which the respondent was a party and which pertained to the three zoning proposals had been filed or otherwise initiated with any adjudicating body.
15. It is concluded that, given the lack of any pending claim or litigation, a question concerning court review of zoning proposals and an answer to that question does not constitute a discussion of strategy and negotiations with respect to pending claims and litigation, within the meaning of 1-18a(e)(2), G.S.
16. It is further concluded that the respondent violated 1-21(a), G.S., by convening in executive session for a purpose other than those permitted by 1-18a(e), G.S.
17. It is found that, before convening in executive session, the respondent failed to state the reason for the executive session in a manner that clearly communicated to the public the purpose for the executive session.
18. It is found that the minutes of the respondent's April
Docket #FIC 89-156 Page Three
6, 1989 meeting also fail to state the reason for the executive session in a manner that clearly communicates to the public the purpose for the executive session.
19. Thus it is concluded that the respondent violated 1-21(a), G.S., by failing to clearly state the purpose publicly both at the meeting and in the minutes.
20. It is found that what occurred in the executive session could have affected the respondent's votes, taken in the public session of its April 6, 1989 regular meeting, on three zoning proposals that were the topic of lengthy public hearings and public discussion.
The following order of 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) and 1-21(a), G.S.
2. The votes taken by the respondent at its April 6, 1989, regular meeting are hereby declared null and void.
Approved by order of the Freedom of Information Commission at its special meeting of December 18, 1989.
Karen J. Haggett
Clerk of the Commission
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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:
RONALD P. SHERLOCK, ESQ.
Gilman & Marks
One Riverview Square
East Hartford, CT 06108
THEODORE J. TUCCI
Robinson & Cole
One Commercial Plaza
Karen J. Haggett
Clerk of the Commission