In the Matter of a Complaint by                        Final Decision


George J. Joly,




            against              Docket #FIC 91-171


Town of Killingly, KELP Sub-Committee and Killingly Town Attorney,


                        Respondents                 December 11, 1991


            The above-captioned matter was heard as a contested case on September 30, 1991, at which time the complainant 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 full name of the respondent sub-committee is Killingly Energy Limited Partnership (hereinafter "KELP").


            3.  By letter dated June 28, 1991 and filed on or about July 12, 1991, the complainant appealed to the Commission alleging that during its June 12, 1991 meeting, respondent KELP convened an illegal executive session in violation of the Freedom of Information (hereinafter "FOI") Act.


            4.  It is found that on June 12, 1991, respondent KELP held a special meeting for the following purposes, as stated on its notice of special meeting:  1) to discuss and select consultants relative to reviewing Department of Environmental Protection Permit Applications (possible executive session); and 2)  to discuss the town's strategy with respect to Department of Environmental Protection Hearings (executive session).


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            5.  At the hearing on this matter, the complainant indicated that he was not contesting the second purpose for executive session that was stated on the June 12, 1991 notice    of special meeting.


            6.  It is also found that during respondent KELP'S June 12, 1991 special meeting, a motion was made to convene in executive session to "discuss the negotiation of a contract for services with an environmental consultant," which motion passed unanimously.


            7.  It is also found that prior to respondent KELP's convening in executive session, the complainant and another member of the public questioned the legality of the executive session and that the respondent town attorney indicated that the closed session was permissible under the FOI Act.


            8.  It is also found that upon reconvening in public session, a motion was made to authorize the retention of Leggette, Brashers & Graham, Inc., an environmental consulting firm (hereinafter "consulting firm") with expertise in water quality, and that the motion passed unanimously.


            9.  It is also found that in June of 1988, an application was filed with the State of Connecticut Siting Council (hereinafter "Council") for the construction of an electric generating wood facility in the Town of Killingly (hereinafter "project") and that the Town of Killingly is currently involved in litigation with the Council over the Council's decision to grant a certificate of approval for the project.


            10.  It is also found that at the time of the June 12, 1991 special meeting, respondent KELP was awaiting the scheduling of a number of Department of Environmental Protection (hereinafter "DEP") hearings regarding pending applications for the issuance of certain air and quality permits in connection with the project.


            11.  It is also found that respondent KELP hired the consulting firm in preparation for the upcoming DEP hearings described in paragraph 10, above.


            12.  The respondents maintain that the subject of the executive session discussion was respondent KELP's "strategy" in the upcoming DEP hearings and that it viewed discussion in executive session of the recommendation of its special counsel


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concerning the retention of the consulting firm as a "strategy item," therefore permissible under the FOI Act.


            13.  Section 1-18a(e)(2), G.S., provides that an agency may exclude the public for the purpose of "strategy and negotiations with respect to pending claims and litigation."


            14.  It is found that the actual interviewing of potential consulting firms was done by respondent KELP's special counsel prior to the June 12, 1991 special meeting; that no interviews were conducted by respondent KELP in the executive session; and that the only consulting firm discussed by respondent KELP during the executive session was the firm that was ultimately retained by respondent KELP following the executive session.


            15.  It is also found that the scope of the executive session was discussion of what the consulting firm would be able to do for respondent KELP to assist at the upcoming DEP hearings and how the consulting firm might help formulate questions to be posed to the applicants at the DEP hearings.


            16.  It is found that the discussion in executive session of what the consulting firm would do to assist respondent KELP at the upcoming DEP hearings constituted "strategy" within the meaning of the 1-18a(e)(2), G.S., exemption.


            17.  It is therefore concluded that respondent KELP convened in executive session for a permissible purpose.


            18.  The complainant maintains that a member of the public would have no means of knowing by looking at the notice for the June 12, 1991 special meeting that the executive session discussion would be about one recommended consultant and that the phrasing of the notice indicates that more than one candidate would be considered by respondent KELP.


            19.  The respondents concede that the notice and the minutes for the June 12, 1991 special meeting could have been more specific with regard to the scope and content of the executive session pertaining to the consulting firm.


            20.  It is found that the notice and minutes of respondent KELP's June 12, 1991 special meeting do not clearly indicate to the public the subject of its executive session regarding the consulting firm.


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            21.  It is concluded that respondent KELP violated 1-21(a), G.S., by failing to state in its notice and in its minutes for its June 12, 1991 special meeting the purpose for the executive session in a manner which clearly communicated such purpose to the public.


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


            1.  Respondent KELP shall henceforth comply with the requirements of 1-21(a) and 1-18a(e), G.S., with respect to providing notice to the public of the subject of its executive sessions.


Approved by Order of the Freedom of Information Commission at its regular meeting of December 11, 1991.



                                    Debra L. Rembowski

                                    Acting Clerk of the Commission


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George J. Joly

52 Bonneville Street

Danielson, CT 06239


Town of Killingly, KELP Sub-Committee, Killingly Town Attorney

c/o Attorney William H. St. Onge

Boland, St. Onge & Brouillard

211 Kennedy Drive

Putnam, CT 06260



                                    Debra L. Rembowski

                                    Acting Clerk of the Commission