FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Thane Grauel, Douglas Healy and the Westport Minuteman,  

Complainant

 

against

Docket #FIC 1996-184

Joseph Arcudi, First Selectman, Town of Westport; Andrew Fink, Town Attorney, Town of Westport; and Garson Heller, Chairman, Revaluation Study Committee, Town of Westport,  

Respondents

March 12, 1997

The above-captioned matter was consolidated for hearing with Docket #FIC1996-099, Thane Grauel and the Westport Minuteman v. Revaluation Study Committee, Town of Westport and Town Attorney, Town of Westport. The case captions have been amended to correctly identify the complainants in each case.

The matters were heard as contested cases on October 8, 1996, at which time the complainants and respondents appeared, stipulated to certain facts, and presented testimony, exhibits and argument on the complaints.

After consideration of the entire record, the following facts are found and conclusions of law are reached:

1. The respondents first selectman and town attorney are public agencies within the meaning of 1-18a(a), G.S.

2. By letter of complaint dated February 23, 1996, and filed with the Commission on March 21, 1996 ("appeal"), the complainants appealed to the Commission alleging that: (a) the respondent Revaluation Study Committee ("RSC") chairman held a meeting on February 22, 1996 ("February meeting") for which no notice was posted; (b) an executive session was illegally convened by the RSC at its February meeting; (c) they were illegally ejected from the RSC’s February meeting; and (d) the RSC failed to record and file minutes or a record of votes for its February meeting.

3. In their appeal, the complainants requested that the Commission declare all actions taken by the RSC at the February meeting null and void, and impose a civil penalty against each of the individual respondents.

4. The complainants contend that the RSC is a public agency and as such its meetings, including the February meeting, are subject to the provisions of Connecticut’s Freedom of Information ("FOI") Act, specifically the open meetings provisions of 1-21, G.S.

5. The respondents contend that the RSC is not a public agency, but a study group created by the respondent first selectman, and as such its meetings are not subject to the provisions of the FOI Act.

6. Section 1-18a(a), G.S., defines public agency, in relevant part, as:

any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official …. (Emphasis added.)

7. It is found that the five-person RSC, comprised of citizens, and former and incumbent public officials, was established by the town’s first selectman in his capacity as chief executive officer for the town.

8. It is found that the charge given the respondent RSC by the first selectman was to study and report on: the state’s law dealing with the method of, and time period for, municipal implementation of town-wide revaluation of residential and commercial real property; provide an opinion about the accuracy of the revaluation of the town’s real property by the town’s tax assessor; and examine the consequences of delaying revaluation, if necessary.

9. It is concluded that the RSC is a public agency within the meaning of 1-18a(a), G.S.

10. In relevant part, 1-21(a), G.S., states that:

[t]he meetings of all public agencies, except executive sessions as defined in subsection (e) of section 1-18a, shall be open to the public….

11. 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. "Meeting" shall not include: … an administrative or staff meeting of a single-member public agency .…

12. It is found that although the RSC had neither decision-making authority, nor the ability to take any action concerning the town’s revaluation process, it clearly had advisory power over the process by virtue of its mandate to report to, and advise the first selectman concerning its findings about the accuracy and timeliness of the tax assessor’s performance of the town’s property revaluation.

13. It is therefore concluded that the meetings of the RSC are meetings within the meaning of 1-18a(b), G.S., subject to the open meetings provisions of 1-21(a), G.S.

14. It is found that on February 22, 1996, the Representative Town Meeting’s ("RTM") Finance Study Committee held a meeting ("RTM meeting") for which notice was posted and an agenda was filed, in accordance with the provisions of 1-21(a), G.S.

15. It is found that one of the agenda items for the RTM meeting was "[p]ossible action concerning the town’s October 1, 1995 property revaluation" ("revaluation matter").

16. It is also found that a quorum of members of the RSC attended the RTM meeting to provide information concerning the revaluation matter and the actions of the town’s tax assessor.

17. It is found that the RSC did not file notice of, or an agenda for a February 22, 1996 meeting, nor did it record the minutes and a record of votes for a meeting on that date.

18. Section 1-18a(i), G.S., states that:

[a] quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of this chapter shall not be deemed to be holding a meeting of the public agency of which they are a member as a result of their presence at such event.

19. It is therefore concluded that since the attendance of the RSC members at the RTM meeting was limited to providing information to the RTM Committee, the RSC did not violate the provisions of 1-21(a), G.S., with respect to the attendance of a quorum of its members at the RTM meeting.

20. It is found that by memorandum dated February 22, 1996, the respondent town attorney advised the respondent first selectman that the RSC was not a public agency, but a study group, and as such was not subject to the provisions of the FOI Act ("legal opinion").

21. It is found that prior to the start of the RTM meeting, the respondent first selectman gave complainant Gruel a copy of the legal opinion and requested that all members of the press leave the meeting room.

22. It is found that the complainants left the meeting room when requested to do so by the respondent first selectman.

23. It is found that the RTM Committee did not convene in executive session at the RTM meeting in accordance with 1-21(a), G.S.

24. It is therefore concluded that by excluding the complainants from the RTM meeting, the respondent first selectman violated the complainants’ right to attend that meeting in violation of 1-21(a), G.S.

25. The Commission declines to issue a civil penalty in this case.

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

1. Henceforth the respondent first selectman shall strictly comply with the open meetings provisions of 1-21, G.S.

2. The complaint is hereby dismissed against the respondents town attorney and chairman of the RSC.

Approved by Order of the Freedom of Information Commission at its regular meeting of March 12, 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:

Thane Grauel, Douglas Healy and the Westport Minuteman
c/o Alan Neigher, Esq.
Byelas & Neigher
1804 Post Road East
Westport, CT 06880-5683

Jospeh Arcudi, First Selectman, Town of Westport; Andrew Fink, Town Attorney, Town of Westport; and Garson Heller, Chairman, Revaluation Study Committee, Town of Westport
c/o Andrew F. Fink, Esq.
257 Riverside Avenue
Westport, CT 06880

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission
FIC1996-184/FD/eal/03201997