FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

FINAL DECISION
Docket #FIC 1996-606
August 13, 1997

In the Matter of a Complaint by John A. DeLutio, Complainant
against
Bernard P. Dzielinski, Chairman, Ridgefield Board of Finance; Martin Heiser; Paul Rosa and John Scarbrough as members of the Ridgefield Board of Finance, Respondents

The above-captioned matter was heard as a contested case on June 18, 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 1-18a(a), G.S.

2. By letter of complaint postmarked December 20, 1996, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information ("FOI") Act with respect to a November 20, 1996 meeting of the respondent board by:

a) failing to notice on the meeting agenda an appropriation of $77,000 for the Middle School building project, (hereinafter "school project appropriation"); and

b) voting to approve the school project appropriation without first obtaining a vote to add such item to the meeting agenda.

In his complaint, the complainant requested that the Commission declare null and void the respondent board’s vote approving the school project appropriation. In addition, the complainant requested the imposition of civil penalties upon the

Docket #FIC 1996-606 Page 2

respondents.

3. Section 1-21i(b)(1), G.S., provides that "[a] notice of appeal shall be deemed to be filed on the date it is received by said commission or on the date it is postmarked, if received more than thirty days after the date of the denial from which such appeal is taken. Upon receipt of such notice, the commission shall serve upon all parties, by certified or registered mail, a copy of such notice together with any other notice or order of such commission."

4. It is concluded that the complaint, being postmarked December 20, 1996, was filed on December 20, 1996 within the meaning of 1-21i(b)(1), G.S., and was therefore, timely brought by the complainant.

5. It is also concluded that the Commission served all parties to the complaint with a copy of such complaint in accordance with 1-21i(b)(1), G.S.

6. Consequently, the respondents’ motion to dismiss for lack of subject matter jurisdiction is denied.

7. With respect to the allegations as described in paragraph 2a) and 2b) of the findings above, it is found that the respondent board held a regular meeting on November 20, 1996 (hereinafter "meeting").

8. It is found that the agenda for the meeting did not include the school project appropriation.

9. It is found that during the meeting the respondent board voted to approve the school project appropriation.

10. Section 1-21(a), G.S., provides that: "Upon the affirmative vote of two-thirds of the members of a public agency present and voting, any subsequent business not included in such filed agendas may be considered and acted upon at such meetings."

11. It is found that the school project appropriation item constituted subsequent business not included in the respondent board’s November 20, 1996 agenda, within the meaning of 1-21(a), G.S.

12. It is also found that the respondents did not obtain the two-thirds vote to add the school project appropriation item to the agenda prior to considering and acting upon such item.

Docket #FIC 1996-606 Page 3

13. It is therefore, concluded that the respondents violated 1-21(a), G.S., when they considered and acted upon the school project appropriation without first obtaining a two-thirds vote to add such item to the agenda.

14. Section 1-21i(b)(2), G.S., authorizes the Commission to declare null and void any action taken at any meeting which a person was denied the right to attend.

15. Section 1-21i(b)(2), G.S., further authorizes the Commission to impose a civil penalty upon a finding that a denial of any right created by the FOI Act was without reasonable grounds.

16. It is found that the respondent board’s vote to approve the school project appropriation was subsequently reviewed and approved by the town at a special town meeting held on December 11, 1996.

17. It is found that the complainant was not denied the right to attend the respondent board’s November 20, 1996 meeting or the special town meeting held on December 11, 1996.

18. It is also found that the violation described in paragraph 13 of the findings, above, was not without reasonable grounds.

19. The Commission therefore, in its discretion, declines to issue a null and void remedy and to impose civil penalties 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 respondents shall strictly comply with the provisions of 1-21(a), G.S.

Approved by Order of the Freedom of Information Commission at its regular meeting of August 13, 1997.

__________________________
Doris V. Luetjen
Acting Clerk of the Commission

Docket #FIC1996-606 Page 4

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:
John A. DeLutio
60 Walnut Grove Road
Ridgefield, CT 06877

Bernard P. Dzielinski, Chairman, Ridgefield Board of Finance; Martin Heiser;
Paul Rosa and John Scarbrough, as members of the Ridgefield Board of Finance
c/o Attorney J. Allen Kerr, Jr.
Office of the Town Attorney
400 Main Street
Ridgefield, CT 06877

__________________________
Doris V. Luetjen
Acting Clerk of the Commission
fic1996-606/FD/tcg/08221997