FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-540
June 4, 1997

In the Matter of a Complaint by Daniel P. Russo, Complainant
against
Gerald E. Daley; John L. Robinson; Jesse Salafia; Robert P. Santangelo; Gerald F. Winzer; Phrances Szewzyk; and Domenique Thornton, as members of the Common Council, City of Middletown; Common Council, City of Middletown; Maria Holzberg, Mayor, City of Middletown; W. Lee Osborn, Chairman, Planning and Zoning Commission, City of Middletown; Guy P. Russo, Director, Water Department, City of Middletown; Edward J. Dzialo, Jr., Chairman, Harbor Improvement Agency, City of Middletown, Respondents

The above-captioned matter was heard as a contested case on March 31, 1997, at which time the complainant and the 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 Section 1-18a(a), G.S.

2. By letter dated and filed on October 22, 1996, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information Act by holding an "improper secret" meeting on July 17, 1996. The complainant also requested that appropriate civil penalties be imposed.

3. It is found that the complainant received notice in fact of the July 17, 1996 meeting on October 10, 1996.

4. Pursuant to the provisions of 1-21i(b)(1), G.S., the complainant has established jurisdiction with respect to the allegations described at paragraph 2, above, because his complaint was filed within thirty days of the date when he received notice in fact of the alleged unnoticed or illegal meeting.

5. Section 1-18a(b), G.S., states in pertinent part:

"Meeting" 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. [emphasis added]

6. However, 1-18a(b), G.S., also goes on to state that "’(m)eeting’ shall not include…a caucus of members of a single political party" and defines "caucus" to mean:

a convening or assembly of the enrolled members of a single political party who are members of a public agency within the state or a political subdivision.

7. It is found that the written notification prepared by the clerk of the Common Council referred to the gathering as a "caucus", to which all Democratic members of the respondent Common Council, City of Middletown ("Council") were invited, and that the clerk of the Council telephoned Council members to give them notice of the gathering.

It is found that seven members constitute a quorum of the Council. It is also found that there was never a quorum in attendance at the July 17, 1996 gathering, because Councilwoman Thornton left after very briefly attending, due to her belief that the gathering was an illegal meeting; and also because Councilman Daley arrived after Councilwoman Thornton’s departure and Councilman Vinci was out of state on vacation. The Council members who attended at some point included the respondents: Gerald E. Daley, John L. Robinson, Jesse Salafia, Robert P. Santangelo, Gerald F. Winzer, Phrances Szewzyk, and Domenique Thornton. No other members of the council were in attendance, and therefore these other members, together with Councilwoman Thornton and Councilman Vinci, are not responsible for the findings herein.

9. It is found that the persons who were not Council members who attended the July 17, 1996 gathering included the respondents: Maria Holzberg, Mayor, City of Middletown; W. Lee Osborn, Chairman, Planning & Zoning Commission, City of Middletown; Guy P. Russo, Director, Water and Sewer Department, City of Middletown; Edward J. Dzialo, Jr., Chairman, Harbor Improvement Agency, City of Middletown. It is concluded that, because four persons other than Council members were present at the July 17, 1996 gathering, the gathering was not a caucus within the meaning of 1-18a(b), G.S.

10. It is found that the July 17, 1996 discussion, while a broad overview of harbor improvement plans, followed a rebuff at the previous Council meeting of the personnel suggested by the respondent Mayor for the boat launch committee, and that the discussion was designed to win Council support for the many other aspects of the harbor improvement plans that would have to gain Council approval in order for the plans to be implemented (including but not limited to acquisition of property, plans for the boat launch area and for an eight mile waterfront).

11. It is therefore concluded that the July 17, 1996 gathering constituted a "proceeding" of the respondent Council because the participants discussed the plans of the Harbor Improvement Agency, which plans included various matters over which the Council had supervision, control and jurisdiction, within the meaning of 1-18a(b), G.S.

12. Accordingly, it is concluded that there was a "meeting" of the respondent Council in violation of the notice, agenda, and minutes requirements of 1-21, G.S. The July 17, 1996 gathering did the Council’s business in a private meeting.

13. With reference to the complainant’s request that civil penalties be imposed "against those responsible", it is found that the respondent Maria Holzberg, Mayor, City of Middletown chaired the July 17, 1996 meeting and took responsibility for freedom of information requirements at the meeting, including personal responsibility for any penalties that this Commission might levy.

14. It is also found, however, that because the respondent Mayor could reasonably have believed that the July 17, 1996 meeting was a caucus, the Commission declines to impose 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 Council shall strictly comply with the open meeting requirements set forth in 1-21, G.S.

2. The Commission notes that Middletown is a substantial municipality, with an able in-house legal staff. Accordingly, the Commission will expect the respondent Mayor to exercise a higher level of scrutiny concerning freedom of information issues in the future and will be ready to consider the imposition of civil penalties if a pattern of cavalier freedom of information behavior emerges.

3. With reference to the respondents other than the respondent Council, the complaint is dismissed.

Approved by Order of the Freedom of Information Commission at its regular meeting of June 4, 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:

Daniel P. Russo
78 Hawks Nest Circle
Middletown, CT 06457

Gerald E. Daley; John L. Robinson; Jesse Salafia; Robert P. Santangelo; Gerald F. Winzer; Phrances Szewzyk; and Domenique Thornton, as members of the Common Council, City of Middletown; Common Council, City of Middletown; Maria Holzberg, Mayor, City of Middletown; W. Lee Osborn, Chairman, Planning and Zoning Commission, City of Middletown; Guy P. Russo, Director, Water Department, City of Middletown; Edward J. Dzialo, Jr., Chairman, Harbor Improvement Agency, City of Middletown
c/o Timothy Lynch, Esq.
Deputy City Attorney
245 DeKoven Drive
PO Box 1300
Middletown, CT 06457-1300

__________________________
Elizabeth A. Leifert
Acting Clerk of the Commission

FIC 1996-540/FD/eal/06161997