FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Sydney M. Libby,
against Docket #FIC 94-39
Ad Hoc Committee of the Middletown Common Council and Middletown
Respondents December 14, 1994
The above-captioned matter was first heard as a contested case on June 3, 1994, at which time the complainant and certain members of the respondent council appeared and presented testimony, exhibits and argument on the complaint by then Commissioner Joan M. Fitch as hearing officer. On June 30, 1994, the date on which her term as Commissioner expired, Commissioner Fitch rendered a report of hearing officer, which report was scheduled to be considered by the Commission on August 10, 1994, at which time the Commission tabled the matter for further consideration. Thereafter, the Commission reopened the matter, naming the Middletown Common Council as a respondent, and assigned it to the undersigned hearing officer for hearing on October 11, 1994. At the October 11, 1994 hearing, the complainant and the respondents appeared, and offered additional 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 Middletown Common Council is a public agency within the meaning of 1-18a(a), G.S.
2. By letter of complaint dated February 7, 1994 and filed February 9, 1994, the complainant appealed to the Commission and alleged that during a recess of the responent council's special meeting of January 20, 1994, an "ad hoc" committee of the council improperly convened in private session to discuss changes to the charter revision committee's report, in violation of the Freedom of Information (hereinafter "FOI") Act. The complainant also requested the imposition of a civil penalty pursuant to 1-21i(b), G.S.
Docket #FIC 94-39 Page 2
3. It is found that the respondent council convened a special meeting on January 20, 1994 and one of its agenda items for such meeting was "#5-1 RESOLUTION: RECOMMENDING CHANGES TO THE DRAFT REPORT SUBMITTED BY THE CHARTER REVISION COMMITTEE."
4. It is found that before considering in public session proposed changes to the charter revision committee's draft report, which changes were prepared by the Democratic caucus of the council, the council voted to recess and remained in recess for nearly an hour and a half.
5. It is found that during the recess described in paragraph 4., above, five members of the council, three Democrats, including the deputy mayor, and two Republicans, gathered in the mayor's office to review and discuss the proposed changes to the draft report. It is this gathering that the complainant terms an "ad hoc" committee meeting of the council.
6. The council members contend that they did not form an ad hoc committee of the council and that the gathering described in paragraph 5., above did not constitute a meeting of the council within the meaning of 1-18a(b), G.S.
7. The council members maintain that their only purposes for gathering during the recess were to provide an opportunity for minority leadership to review the technical changes proposed by the Democratic caucus, to ascertain whether the Republicans had any problems with the changes and to ensure that the council could move in a bipartisan manner.
8. It is found that some minor changes were made with respect to wording of the proposed changes to the draft report during the course of the gathering described in paragraph 5., above.
9. It is further found that following the recess, the respondent council reconvened and then voted to approve the proposed changes to the draft report for submission to the charter revision committee with one amendment that was offered by a member of the council who was not present during the gathering described in paragraph 5., above.
10. It is found that the respondent council consists of twelve voting members and that seven members constitute a quorum of the council.
11. It is found that the political composition of the respondent council consists of eight Democrats and four Republicans and that the political composition of the gathering, described in paragraph 5., above, is closely proportionate to the political composition of the Council as a whole.
Docket #FIC 94-39 Page 3
12. It is further found that no member of the respondent council objected to the gathering that took place during the recess and that the members of the council who were not participants in the gathering saw nothing improper about it and presumed that there was some confusion concerning the proposed changes that needed to be discussed during the recess.
13. Under the facts and circumstances of this case, it is found that the council members who gathered during the council recess did not constitute an ad hoc committee of the council.
14. Section 1-18a(b), G.S., however, in relevant part, defines meeting as:
"...any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimenber public agency...to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power...." [Emphasis added.]
15. Based upon the findings set forth in paragraphs 4. through 12., above, it is further found that despite the absence of a quorum, the five council members who gathered during the council's recess, met under the implied authority of the council to discuss a matter over which the respondent council had supervision, control, jurisdiction or advisory power.
16. It is further found that the gathering described in paragraph 5., above, constituted a proceeding of the respondent council and therefore was a meeting within the meaning of 1-18a(b), G.S.
17. It is found that the members of the respondent council have not cited any reason why the gathering conducted during the recess as described in paragraph 5., above, could not have occurred in public session.
18. Consequently, it is concluded under the facts and circumstances of this case that the respondent council violated the open meeting provisions of 1-21(a), G.S., when five of its members gathered in the mayor's office during the council recess, as described in paragraph 5., above.
19. The Commission, in its discretion, declines to impose civil penalties under the facts of this case.
The following order by the Commission is hereby recommended on the basis of the record of the above-captioned complaint:
Docket #FIC 94-39 Page 4
1. Henceforth the respondent council shall strictly comply with the open meeting requirements of 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 14, 1994.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-39 Page 5
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:
SYDNEY M. LIBBY
c/o Todd D. Fernow, Esq.
Peter L. Black
UConn Legal Clinic
65 Elizabeth Street
Hartford, CT 06105-2290
AD HOC COMMITTEE OF THE MIDDLETOWN COMMON COUNCIL AND
MIDDLETOWN COMMON COUNCIL
c/o Trina A. Solecki, Esq.
245 DeKoven Drive
P.O. Box 1300
Middletown, CT 06457
Debra L. Rembowski
Clerk of the Commission