FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Ellen K. Desjardins
against Docket #FIC 94-122
Montville Town Council, Mayor of Montville and
Montville Town Attorney,
Respondents April 18, 1995
The above-captioned matter was heard as a contested case on November 3, 1994, at which time the complainant and the respondents appeared, 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 filed on April 19, 1994, the complainant appealed to the Commission alleging that: (a) the respondents improperly convened an executive session at a publicly held March 21, 1994 special meeting of the respondent town council; and (b) the respondent town attorney and several members of the respondent town council held a meeting on March 22, 1994, in violation of 1-21, G.S.
3. It is found that on March 21, 1994, the respondent town council held a special meeting, at which an executive session was called and convened for the stated purpose of discussing the Mohegan Indians of Connecticut Tribe's ("Mohegans") petition for federal recognition ("petition").
4. It is found that the proponents of the petition are residents of the town of Montville ("town").
5. It is found that at its request, on or about May 12, 1993, the town was designated an interested party in the case regarding the Mohegans' petition.
Docket #FIC 94-122 Page 2
6. It is found that the final determination by the assistant secretary for the Bureau of Indian Affairs ("BIA"), that the Mohegans exist as an Indian tribe within the meaning of federal law ("BIA determination"), was made on or about March 7, 1994, and published on March 15, 1994 in Vol. 59 No. 50, pages 12140-12141 of the Federal Register.
7. It is found that the respondents were notified of the BIA determination prior to the respondent town council's March 21, 1994 special meeting.
8. The respondents maintain that the sole purpose of the March 21, 1994 executive session ("March executive session") was to discuss the town's strategy, in light of the BIA determination, which they believed would have severe adverse consequences for the town by removing land from its tax base, and/or creating land use conflicts.
9. At the hearing in this matter, the respondents contended that at the March executive session they discussed whether the town would request review and reconsideration of the BIA determination pursuant to federal acknowledgement regulations, 25 C.F.R. Part 83.
10. It is found that from approximately March, 1993 through April, 1994, the respondents or their outside legal counsel continuously corresponded with the agencies, bureaus, departments and proponents involved in the review and consideration of the Mohegans' petition to make known their concerns and objections.
11. Section 1-18a(e)(2), G.S., permits a public agency to convene an executive session for the purpose of discussing:
... strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof ... is a party until such litigation or claim has been finally adjudicated or otherwise settled.
12. Based upon the facts of this case, it is found that on March 21, 1994, the town (in the form of the respondent town council and the respondent mayor) was a party to a pending claim as the possibility of reconsideration of the BIA's determination by the Interior Board of Indian Appeals ("IBIA") did then exist.
Docket #FIC 94-122 Page 3
13. It is found that at the March executive session the respondents discussed the BIA determination and whether the town could or would seek reconsideration of the determination within the requisite time period.
14. It is therefore concluded that the discussions held during the March executive session constituted "strategy" discussions within the meaning of 1-18a(e)(2), G.S.
15. It is found that on or about March 20, 1994, the respondent mayor and members of the respondent town council were invited by the governor to meet with the governor at his office on March 22, 1994 ("March meeting"), concerning the Mohegans' petition, BIA determination and possible request for reconsideration of the BIA determination ("Mohegan matter").
16. It is found that a quorum of the respondent town council members, and the respondent town attorney accompanied the respondent mayor to the March meeting with the governor.
17. It is found, however, that only the respondent mayor actually met with the governor and certain state officials to discuss the Mohegan matter.
18. It is found that following his meeting with the governor, the respondent mayor recapitulated the sum and substance of his discussions with the governor, for the benefit of the respondent town attorney and council members who had accompanied him.
19. Section 1-18a(b), G.S., in relevant part defines a meeting as:
... any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency ... to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.
20. It is found that a quorum of members of the respondent town council accompanied the respondent mayor to the March meeting with the expectation and belief that they would discuss the Mohegan matter, a matter over which the respondent town council, as an interested party in the petition proceeding, has advisory power.
Docket #FIC 94-122 Page 4
21. It is therefore found that the respondent town council held a meeting within the meaning of 1-18a(b), G.S., on March 22, 1994.
22. It is concluded that the respondent town council violated the meeting provisions of 1-21(a), G.S., by failing to post notice of the March meeting and to otherwise comply with the meeting requirements.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.
1. The complaint is hereby dismissed against the respondents mayor and town attorney.
2. Henceforth the respondent town council shall comply with the open meeting requirements as set forth in 1-21(a), G.S.
Approved by Order of the Freedom of Information Commission at its special meeting of April 18, 1995.
Debra L. Rembowski
Clerk of the Commission
Docket #FIC 94-122 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:
ELLEN K. DESJARDINS
513 Raymond Hill Road
Uncasville, CT 06382
MONTVILLE TOWN COUNCIL, MAYOR OF MONTVILLE AND MONTVILLE TOWN ATTORNEY,
c/o James J. Devine, Esq.
Berberick, Murphy, Devine & Whitty, P.C.
82 Chelsea Harbor Drive
P.O. Box 1126
Norwich, CT 06360
Debra L. Rembowski
Clerk of the Commission