FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Keith Fontaine and Norwich Bulletin,
against Docket #FIC 93-235
Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen,
Respondents November 10, 1993
The above-captioned matter was heard as a contested case on October 8, 1993, at which time the complainants 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 September 10, 1993, the complainants appealed to the Commission, alleging that the respondents convened illegally in executive session on September 9, 1993.
3. Specifically, the complainants alleged that the respondents had failed to comply with the Commission's final decision in contested case Docket #FIC 93-190.
4. The Commission takes administrative notice of its record and final decision in contested case Docket #FIC 93-190, Susann Viafora and Norwich Bulletin vs. Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen.
5. It is found that the respondents held a joint special meeting on September 9, 1993.
6. It is found that the notices of the meeting described the business to be transacted as discussion of and possible action concerning the details and requirements for filing litigation against the U.S. Department of the Interior for its failure to grant the request filed by the three towns that a trust acquisition request of the Mashantucket Pequot Tribe (the
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"Tribe") be rejected, and the relationship between such litigation and the offer of the Tribe to resolve the trust acquisition issue.
7. It is found that the respondents convened in executive session at the September 9, 1993 meeting for the stated purpose of strategy and negotiation with respect to pending claims and litigation.
8. It is found that the respondents had been given by their Washington, D.C. legal counsel a written outline of legal action that could be taken against the Department of the Interior, including the pros and cons of such action.
9. It is found that the respondents discussed with their counsel in executive session the matters referenced in paragraph 8, above.
10. In its final decision in Docket #FIC 93-190, the Commission found that the respondents had failed to prove, in connection with a joint meeting that had been scheduled for August 10, 1993, that they were then actually considering any action to enforce or implement legal relief or a legal right.
11. In its final decision in Docket #FIC 93-190, the Commission also ordered the respondents henceforth to strictly comply with the requirements of 1-18a(e)(2), 1-18a(g), and 1-18a(h), G.S.
12. The complainants maintain that the actual discussion at the September 9 meeting was not different from the discussion planned for the August 10 meeting, and that the respondents may not, pursuant to the Commission's order in FIC 93-190, convene in executive session before the Bureau of Indian Affairs (the "BIA") has made a decision on the Tribe's trust acquisition request, and the respondents then decide whether to take an administrative appeal from that decision, if it is adverse to them.
13. The respondents maintain that their September 9, 1993 executive session was permissible pursuant to 1-18a(h), G.S., because they were now considering legal action separate from a possible administrative appeal from the awaited decision of the BIA.
14. Section 1-18a(h) defines "pending litigation" to mean:
(1) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (2) the service of a complaint against an agency returnable to a court which seeks to enforce or
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implement legal relief or a legal right; or (3) the agency's consideration of action to enforce or implement legal relief or a legal right.
15. It is found that the respondents' discussion at their September 9, 1993 meeting, unlike the discussion planned for the August 10, 1993 meeting, concerned strategy and negotiation with respect to the consideration of initiating legal action separate from an administrative appeal of BIA's awaited decision.
16. It is therefore concluded that the respondents did not violate 1-21(a), G.S., by convening in executive session for the purposes described in paragraph 15, above.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of November 10, 1993.
Elizabeth A. Leifert
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:
66 Franklin Street
Norwich, CT 06360
Preston Board of Selectmen,Ledyard Town Coucil and
North Stonington Board of Selectmen
c/o Frank Manfredi, Esq.
Cotter, Greenfield, Manfredi & Lenes, P.C.
223 West Town Street
Norwich, CT 06306
Elizabeth A. Leifert
Acting Clerk of the Commission