FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Gregory M. Conte,
against Docket #FIC 92-97
Monroe Town Council and Monroe Town Council's Planning and Zoning, Public Works and Recreation Committee,
Respondents February 10, 1993
The above-captioned matter was heard as a contested case on September 11, 1992, 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. By letter of complaint filed with the Commission on March 26, 1992, the complainant alleged the following Freedom of Information Act (hereinafter "FOIA") violations:
a) The respondent Town Council's Planning and Zoning, Public Works and Recreation Committee, (hereinafter "respondent committee"), cancelled a properly noticed meeting scheduled for March 9, 1992 at 7:00 P.M., and instead held a meeting on March 5, 1992 at 5:30 P.M., which was illegal because neither an agenda was prepared, nor a notice posted for such meeting, in violation of 1-21(a), G.S.
b) The respondent Town Council (hereinafter "respondent council"), held a regular meeting on March 9, 1992, at which it convened an executive session but failed to state the purpose for that executive session in violation of 1-21(a), G.S.
Docket #FIC 92-97 Page 2
c) The respondent council conducted business that was not on its agenda for the March 9th meeting and was not properly added to the agenda for that meeting, in violation of 1-21(a), G.S. Specifically, the respondent council discussed whether a proposed fee schedule for parks and recreation should be accepted, voted on a motion to establish a public hearing on the proposed municipal budget and, thereafter, set the times and dates for such meetings.
3. With respect to the allegation outlined in paragraph 2a, above, the respondent committee concedes that there was no notice given of its March 5, 1992 meeting, nor was there a notice of cancellation for its March 9, 1992 meeting.
4. Section 1-21(a), G.S., states that in pertinent part that:
The meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public.... [And] "[n]otice of each special meeting of every public agency...shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof....The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.
5. It is concluded that the respondent violated 1-21(a), G.S., by convening a special meeting on March 5, 1992 and failing to prepare and file a notice for such meeting, as required by 1-21(a), G.S.
6. It is found that with respect to the allegation outlined in paragraph 2b, above, the respondent council convened in executive session at its March 9, 1992 meeting and failed to properly identify the subject matter of the executive session.
7. Section 1-21(a), G.S., regarding executive sessions provides in pertinent part that:
... A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.
Docket #FIC 92-97 Page 3
8. The respondent council maintains that the executive session was properly called and convened to discuss "possible litigation" and fire code violations involving Hidden Knolls Senior Housing (hereinafter "Knolls complex").
9. Specifically, the respondent council claims that Attorney LaFollette's reply letters of February 14 and 27, 1992 to the the Monroe fire marshal's correspondence concerning fire code violations at the Knolls complex, constituted a threat of litigation.
10. It is found that Attorney LaFollette's reply letters of February 14 and 27, 1992 to the fire marshall, neither contained a threat of litigation nor constituted a pending claim or pending litigation as defined in 1-18a(g) and 1-18a(h), G.S.
11. Moreover, it is found that in accordance with the Town of Monroe's charter, the respondent council has no authority to intervene in a matter involving the fire marshal, or interfere with an order of the fire marshal.
12. It is therefore concluded that the respondent council violated the provisions of 1-21(a), G.S., by convening an executive session for an improper purpose.
13. It is further concluded that the complainant was wrongfully denied his right to attend such discussions as required by 1-21, G.S.
14. It is found that with respect to the allegation outlined in paragraph 2c, above, the respondent council did in fact transact, at its March 9, 1992 meeting, business not included on the agenda, including, discussing whether a proposed fee schedule for parks and recreation should be accepted, voting on a motion to conduct public hearings on the proposed municipal budget and, setting the times and dates for such hearings.
15. It is therefore concluded that the agenda for the March 9th meeting failed to give meaningful notice of the actual business to be transacted by the respondent council.
16. Section 1-18a(b), G.S., states in relevant part that:
... "Meeting" shall not include ... communication limited to notice of meetings of any public agency or the agendas thereof....
17. It is found that the respondent council's discussions related to the setting of dates and times for its public hearings are "communications limited to notice of meetings" within the meaning of 1-18a(b), G.S.
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18. An agenda for a regular meeting of a public agency can properly be amended by first obtaining an affirmative vote of two-thirds of all board members present and voting, in accordance with 1-21(a), G.S.
19. It is concluded that the respondent violated the agenda provisions of 1-21(a), G.S., by failing to include, either initially or by amendment the items of business actually transacted at its March 9th meeting, specifically, discussing whether a proposed fee schedule for parks and recreation should be accepted and voting on a motion to conduct public hearings on the proposed municipal budget.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth, the respondent shall strictly comply with the open meetings requirements clearly set forth in 1-21, G.S.
2. The Commission declines to declare that action taken by the respondent council at its March 9th meeting regarding parks and recreation fees and the scheduling of public hearings for the municipal budget are void, in light of the meaningful and deliberate efforts made by the respondents since the March 9th meeting to educate themselves, and to comply with the FOIA.
4. The Commission, however, wishes to remind the respondents, that under 1-21i(b), G.S., in the future this Commission may declare null and void any or all actions taken at any meeting, and in addition, may impose a civil penalty against the official directly responsible for the denial of any right created under the FOIA.
4. Finally, the Commission wishes to remind the respondents that attendance at a properly convened executive session must be limited in accordance with the provisions of 1-21g(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of February 10, 1993.
Mitchell W. Pearlman
Acting 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:
Gregory M. Conte
136 Wheeler Road
Monroe, CT 06468
Monroe Town Council and Monroe Town Council's Planning and Zoning, Public Works and Recreation Committee
c/o Atty. James P. White
Pullman & Comley
850 Main Street
P.O. Box 7006
Bridgeport, CT 06601-7006
Mitchell W. Pearlman
Acting Clerk of the Commission