FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-179
January 22, 1997
In the Matter of a Complaint by Marc A. Mittaud, Complainant(s)
against
State of Connecticut, Department of Public Utilities Control; Peter Lawson, First Selectman, Town of Canaan; Louis Timolat, Second Selectman, Town of Canaan; Patricia Mechare, Third Selectman, Town of Canaan; Board of Selectmen, Town of Canaan; and Water Commission, Town of Canaan, Respondent(s)

The above-captioned matter was heard as a contested case on October 18, 1996, at which time the complainant and respondents appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaint.

At the hearing on this matter, the respondent Department of Public Utilities Control ("DPUC") moved to dismiss the complaint as to it, to which the complainant agreed. The complainant also withdrew his complaint against the three members of the respondent water commission who did not attend the February 15, 1996 meeting in question. Therefore, the foregoing agency and individuals are no longer parties to this 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 dated February 15, 1996, and filed with the Commission on February 22, 1996, the complainant alleged that: (a) the respondent water commission ("CWC") excluded him from a meeting held on February 15, 1996; (b) the respondent board of selectmen ("board") failed to provide a notice of meeting and agenda for its February 9, 1996 meeting, and improperly convened an executive session at its February 14, 1996 meeting; and (c) the respondent board failed and refused to provide him with access to a document concerning an item on the board’s February 14, 1996 meeting agenda. The complainant requested the imposition of civil penalties against the individual respondents

3. With respect to the complainant’s allegation described in paragraph 2(a) of the findings, above, it is found that on February 15, 1996 two of five members of the respondent CWC attended a mediation session with a DPUC employee assigned to mediate the billing dispute arising from a utility customer’s dissatisfaction with the water bill that he received from the respondent CWC.

4. It is found that prior to commencing the mediation session, the mediator requested that all persons, except the parties to the dispute, leave the room where the session was being held.

5. It is found that the complainant was one of two persons to whom the mediator directed his request, and he left the room when asked to do so.

6. The respondent CWC contends that the gathering was not a meeting under the FOI Act because the sole purpose of the session was to discuss the disputed bill and the concerns of the unhappy customer in an attempt to settle the billing dispute.

7. In relevant part, 1-18a(b), G.S., states that:

"[m]eeting" means any hearing or other proceeding of a public agency, 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, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power.…

8. It is found that the two CWC members present at the February 15, 1996 gathering did not constitute a quorum of the respondent CWC.

9. It is also found that the February 15, 1996 gathering was neither a hearing nor a proceeding of the respondent CWC within the meaning of 1-18a(b), G.S.

10. Therefore, it is concluded that the February 15, 1996 gathering was not a meeting of the respondent CWC for purposes of the FOI Act.

11. With respect to the allegations described in paragraph 2(b) of the findings, above, concerning the respondent board, it is found that on February 9, 1996, the respondent board held a special meeting to set the agenda for the board’s February 14, 1996 meeting.

12. In relevant part, 1-21(a), G.S., provides that:

Notice of each special meeting of every public agency … shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof in the office of ...the clerk of each municipal member for any multitown district or agency….. The notice shall specify the time and place of the special meeting and the business to be transacted. No other business shall be considered at such meetings by such public agency.

13. It is found that on February 8, 1996, the respondent board prepared a notice of special meeting and agenda for its February 9, 1996 meeting as required by 1-21(a), G.S.

14. The complainant contended that the notice of meeting and agenda dated February 8, 1996, and allegedly filed on that date, was not date stamped received by the town clerk and therefore its filing must not have been timely.

15. It is found that the complainant failed to prove that the February 8, 1996 notice of special meeting and agenda were not filed twenty-four hours prior to the respondent board’s February 9, 1996 meeting.

16. It is therefore found that on February 8, 1996, the respondent board filed its notice of special meeting and agenda for the February 9, 1996 meeting as required by 1-21(a), G.S.

17. It is found that the respondent board held a regular meeting on February 14, 1996.

18. It is found that an executive session was convened at the respondent board’s February 14, 1996 meeting.

19. Section 1-21(a), G.S., states in relevant part that:

[a] public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in said section.

20. Section 1-18a(e), G.S., provides in relevant part that an executive session may be convened to discuss, among other things, the appointment, employment, performance, evaluation, health or dismissal of a public officer or employee, provided that such individual may require that discussion be held at an open meeting ….

21. It is found that the minutes of the respondent board’s February 14, 1996 meeting indicate that the executive session was convened to discuss a January 22, 1996 "letter from the state’s Department of Social Services" ("DSS letter").

22. It is concluded that the respondent failed to state a proper purpose for its executive session as set forth in 1-18a(e), G.S., and as required by 1-21(a), G.S.

23. It is found that at the executive session held at its February 14, 1996 meeting, the respondent board discussed the DSS letter concerning the assessment of a penalty against the town for its failure to file certain billing documents in a timely manner, and the culpability of the town’s former municipal agent/welfare administrator who was responsible for filing the documentation referred to in the DSS letter.

24. The respondent board contends that it held the discussion of the DSS letter in executive session to protect the town’s former municipal agent/welfare administrator.

25. It is found, however, that the respondent board never notified the former employee that she would be discussed at the February 14, 1996 meeting.

26. Given the facts and circumstances of this case it is found that the respondent board did not convene in executive session at its February 14, 1996 meeting for a proper purpose, as set forth in 1-18a(e), G.S., and therefore violated 1-18a(e) and 1-21(a), G.S., by convening in executive session at that meeting.

27. It is further concluded that the complainant was wrongfully denied his right to attend that portion of the February 14, 1996 meeting improperly held in executive session, in violation of 1-21(a), G.S.

28. With respect to the allegations described in paragraph 2(c) of the findings, above, it is found that the complainant never made a request for access to, or a copy of the document at issue.

29. It is therefore found that the complainant failed to allege or prove a violation of the FOI Act by the respondent board with respect to the document at issue.

30. The Commission in its discretion declines to issue a civil penalty against the respondent board.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:

1. Henceforth the respondent board shall strictly comply with the executive session and open meeting requirements set forth in 1-18a(e) and 1-21(a), G.S.

2. The complaint against the respondent CWC, and that portion of the appeal concerning the respondent board’s February 9, 1996 meeting and access to the document are hereby dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of January 22, 1997.

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

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:

Marc Mittaud
43 Dublin Road
Falls Village, CT 06031

State of Connecticut, Department of Public Utilities Control
c/o Robert S. Golden, Jr., Esq.
Assistant Attorney General
10 Franklin Square
New Britain, CT 06051

Peter Lawson, First Selectman, Town of Canaan; Louis Timolat, Second Selectman, Town of Canaan; Patricia Mechare, Third Selectman, Town of Canaan; Board of Selectmen, Town of Canaan; and Water Commission, Town of Canaan
c/o Judith Dixon, Esq.
Dixon & Brooks, P.C.
45 Center Street
Winsted, CT 06098

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-179/FD/eal/01291997