In the Matter of a Complaint by                        Final Decision


Trenton Wright,




            against              Docket #FIC 92-294


Joint Boards of Selectmen and Finance Committee on the Windham Energy Recovery Facility,


                        Respondent                  May 12, 1993


            The above-captioned matter was heard as a contested case on March 24, 1993, at which time the complainant and the respondent 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.  It is found that the respondent was created during a joint meeting of the Windham Board of Selectmen and the Windham Board of Finance on February 26, 1992; and that the respondent consists of three members of the Windham Board of Selectmen and two members of the Windham Board of Finance.


            2.  It is found that the respondent was created for the purpose of acting as Windham's negotiating team with five bidders who submitted proposals to the town for the conversion of the town's Waste Energy Recovery Facility (hereinafter "WERF") and proposals related to other solid waste issues in town, including the possible sale or lease of the town's ash landfill.


            3.  It is concluded that contrary to what its name suggests, the respondent does not constitute a "committee" or other subunit of either the Windham Board of Selectmen or the Windham Board of Finance within the meaning of 1-18a(a), G.S.; rather, the respondent is itself a public agency within the meaning of that provision.


            4.  By letter dated September 21, 1992 and filed September 22, 1992 the complainant appealed to the Commission alleging


Docket #FIC 92-294                           Page 2


that the respondent violated the Freedom of Information (hereinafter "FOI") Act at its September 14, 1992 meeting when it failed to indicate in the minutes for the subject meeting, the purpose for which it convened in executive session.


            5.  By letter dated October 7, 1992 and filed October 9, 1992, the complainant amended his September 21, 1992 letter and made the additional allegation that the respondent's failure to allow him to attend its September 14, 1992 executive session constituted a violation of the FOI Act.


            6.  With regard to the complainant's allegation described in paragraph 5, above, the complainant maintains that because he is a member of the Board of Selectmen, the public agency partially responsible for the respondent's creation, he is entitled under the FOI Act to attend executive sessions of the respondent, as an ex officio member of the latter agency.


            7.  In his letters of complaint, the complainant also requested the imposition of a civil penalty against the respondent.


            8.  Because the respondent is not a committee or other subunit of the board of selectmen, it is found that, in the absence of other evidence, the complainant failed to prove that he is an ex officio member of the respondent.


            9.  It is found that the agenda for the respondent's September 14, 1992 meeting at which the subject executive session occurred listed the following agenda item: "Possible executive session to discuss contract negotiations with WERF bidders."


            10.  It is found that the respondent convened in executive session during its September 14, 1992 meeting and plotted its contract negotiation strategy with its environmental counsel concerning the bid proposals described in paragraph 2, above.


            11.  It is found that the complainant arrived at the September 14, 1992 meeting while the executive session was in progress and was told by a member of the respondent that he was not permitted to attend the executive session.


            12.  With regard to the complainant's allegation described in paragraph 4, above, the respondent concedes that its initial unapproved version of the September 14, 1992 minutes failed to contain the purpose for its executive session but that upon realizing that the purpose was omitted, the respondent corrected the minutes on September 22, 1992 and approved them at its next meeting.  The corrected version indicates the same purpose for the executive session as that indicated on the agenda for the meeting.


Docket #FIC 92-294                           Page 3


            13.  Because of the corrective measures that were taken by the respondent with respect to its unapproved version of the minutes for its September 14, 1992 meeting, it is concluded that the respondent did not violate the FOI Act with respect to such minutes.


            14.  Although the stated purpose for the executive session in question failed to articulate a proper purpose for that session pursuant to 1-18a(e), G.S., it is found that the executive session discussion concerned the lease or sale of real estate by a political subdivision of the state. It is further found that disclosure of that discussion would have undoubtedly engendered publicity regarding such lease or sale, or any construction related to the conversion of WERF, that would have caused a likelihood of increased price, in the sense that the town would not have been able to maximize the compensation it sought to obtain through such lease, sale or conversion.


            15.  Consequently, it is concluded that the executive session in question was permissible under 1-18a(e)(4), G.S.


            16.  The Commission, in its discretion declines to impose a civil penalty upon the respondent.


            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 comply with the requirements contained in 1-21(a), G.S., with respect to articulating a proper purpose for an executive session as set forth in 1-18a(e), G.S.


            2.  The Commission wishes to advise the complainant that the issue of whether a member of a board is an ex officio  member of any of that board's subunits is a question governed by local law and would require proof that such local law confers ex officio status on board members.


Approved by Order of the Freedom of Information Commission at its regular meeting of May 12, 1993.



                                    Debra L. Rembowski

                                    Acting Clerk of the Commission


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Trenton Wright

232 Mansfield Avenue

Willimantic, CT 06226


Walter Pawelkiewicz

First Selectman

979 Main Street

P.O. Box 94

Willimantic, CT 06226



                                    Debra L. Rembowski

                                    Acting Clerk of the Commission