FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Edward A. Peruta,
against Docket #FIC 93-257 and Docket #FIC 93-274
O. Paul Shew, Rocky Hill Town Manager; Rocky Hill Town Council;
Donald Unwin, Joseph DiNunzio, Michael Gerace, William Pacelia,
Joseph Senofonte and Robert Wright, as Members of the Rocky Hill Town
Council; Philip Dunn, Acting Police Chief, Rocky Hill Police Department;
Peter Lanlois, Rocky Hill Acting Town Manager; and Town of Rocky Hill,
Respondents March 9, 1994
The above-captioned matters were heard as contested cases on December 13, 1993, at which time the complainant and 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 letters of complaint filed with the Commission by facsimile transmission on September 15, September 20 and October 4, 1993, the complainant alleged that:
(a) at the respondent town council's August 16, 1993 regular meeting (hereinafter "August meeting"), an executive session was improperly convened in that it was not on the agenda for that meeting, and was not convened for a permissible purpose;
(b) at the executive session at the August meeting a consensus vote was reached; and
Docket #FIC 93-257 and Docket #FIC 93-274 Page 2
(c) the respondent town manager, acting police chief and acting town manager all failed to comply with his requests for access to all records relating to the $360,000 tax incentive that the respondent town was going to offer the Hallsmith-SYSCO Corporation (hereinafter "SYSCO").
3. The complainant requested the imposition of civil penalties.
4. It is found that at its August meeting the respondent town council convened an executive session for the stated purpose of discussing "negotiations regarding economic development of the respondent town."
5. It is found that the executive session was not on the respondent town council's agenda for the August meeting.
6. It is found that while a town council member made a motion to convene the executive session purportedly to discuss economic development, the respondent town council members failed to first properly add the business of the executive session to the agenda as required by 1-21(a), G.S.
7. Section 1-21(a), G.S., states in relevant part that:
Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas [for a regularly scheduled meeting] may be considered and acted upon at such meetings.
8. It is found that while the minutes for the August meeting clearly reflect the fact that council members were aware of the requirement and process for adding items to the meeting's agenda, respondent council members nevertheless failed to comply with 1-21(a), G.S., prior to convening the executive session to discuss economic development.
9. Section 1-18a(e), G.S., sets forth the five permissible purposes for convening an executive session. It is found that discussion of economic development is not among them.
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10. The respondents maintain that the discussions concerning "economic development," which are more correctly described as discussions concerning the increase of the tax incentive to be offered to SYSCO, are analogous to discussions regarding the acquisition or lease of real estate, discussed in 1-18a(e)(4), G.S.
11. Section 1-18a(e)(4), G.S., expressly states that an executive session is permissible to discuss the site selection, lease, purchase or sale of "real estate by a political subdivision of the state."
12. It is found that the respondents town manager and town council did not discuss matters relating to the site selection, lease, purchase or sale of real estate by the town.
13. It is therefore concluded that the respondents failed to prove the applicability of 1-18a(e)(4), G.S., to the discussion at issue in this case.
14. The respondents also maintain that the executive session was proper pursuant to 1-18a(e)(5), G.S., because public discussion of the SYSCO matter would have resulted in the disclosure of commercial or financial information which was then protected from disclosure.
15. It is found that the respondents failed to prove that the commercial or financial information discussed was entitled to protection from disclosure, or to prove the applicabilty of either 1-18a(e)(5) or 1-19(b), G.S.
16. It is concluded that the respondent town council members and the respondent town manager violated the open meetings and executive session provisions of 1-18a(e) and 1-21(a), G.S., when they convened the executive session to discuss "economic development" at the council's August meeting.
17. It is found that while no vote was in fact taken during the executive session at issue, the facts are sufficient to support the inference that during the executive session the respondent town manager gave his opinion that in order to attract SYSCO to the respondent town, an additional $60,000 would have to be added to the $300,000 tax incentive already offered to SYSCO, and respondent town council members were then asked to support that increase.
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18. It is found that the records that the complainant requested are public records within the meaning of 1-18a(d) and 1-19, G.S.
19. The respondents maintain that disclosure of the records was initially withheld in order to protect the negotiations between the respondent town and SYSCO.
20. The respondent town manger conceded at the hearing on this matter that the records at issue had been transferred out of town hall to the custody of the town attorney until the negotiations with SYSCO were successfully concluded on or about September 20, 1993.
21. The respondent town manager further conceded that while more than one document existed regarding the town's negotiations with SYSCO, including correspondence with Connecticut's Departments of Economic Development and Transportaion, as well as a negotiated agreement in the form of a town council resolution, on October 1, 1993 the complainant was only given a copy of a "confidential memorandum" regarding SYSCO.
22. In accordance with the express language of 1-19(a), G.S., all public records are to be maintained in a publicly accessible location. It is found that the office of the town attorney is not a publicly accessible location.
23. It is found that the respondents failed to either allege or prove the applicability of any exemption to the disclosure provisions of 1-15 and 1-19, G.S.
24. It is concluded that, acting upon the advice of counsel, the respondent town manager, acting police chief, and acting town manager violated the disclosure provisions of 1-19(a), G.S., when they failed to provide the complainant with copies of the requested records.
25. It is found that the respondents' violations of the rights conferred by 1-15, 1-19(a) and 1-21(a) were without reasonable grounds.
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The following order by the Commission is hereby recommended
on the basis of the record concerning the above-captioned complaint:
1. The Commission imposes a civil penalty against each of the named respondent town council members and the respondent town manager in the amount of twenty-five dollars ($25.00), for a total civil penalty of one hundred seventy-five dollars ($175.00). The aforementioned civil penalty of one hundred seventy-five dollars shall be remitted to the Commission within thirty days of the date of the mailing of the notice of final decision in this case.
2. Henceforth the respondents shall fully comply with the open meetings provisions of 1-21(a), G.S., and the disclosure provisions of 1-19(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of March 9, 1994.
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:
Mr. Edward A. Peruta
38 Parish Road
Rocky Hill, CT 06067
O. Paul Shew, Rocky Hill Town Manager; Rocky Hill Town Council; Donald Unwin, Joseph DeNunzio, Michael Gerace, William Pacelia, Joseph Senofonte and Robert Wright as Members of the Rocky Hill Town Council; Philip Dunn, Acting Police Chief, Rocky Hill Police Department; Peter Lanlois, Rocky Hill Acting Town Manager; and
Town of Rocky Hill
c/o Curtis H. Roggi, Esq.
Roggi & Stuhlman
1160 Silas Deane Highway
Wethersfield, CT 06109
Elizabeth A. Leifert
Acting Clerk of the Commission