FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
against Docket #FIC 1997-087
Town Council, Town of New Milford,
Respondent December 10, 1997
The above-captioned matter was heard as a contested case on September 25, 1997, at which time the complainant and the respondent appeared, 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 respondent is a public agency within the meaning of §1-18a(a), G.S.
2. By letter dated March 8, 1997, and filed with the Commission on March 11, 1997, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information Act with reference to the regular meeting held on February 10, 1997 (the “meeting”) by:
a) making available an improper agenda;
b) holding an improper discussion of matters not properly added to the agenda and voting on such matters;
c) voting improperly to ratify an option agreement that was not properly added to the agenda; and by,
d) holding an improper executive session.
The complainant requested that the remedy ordered by the Commission include a requirement that representatives of the respondent attend seminars on the Freedom of Information Act.
3. At the hearing, following the taking of evidence on questions of fact and argument on questions of law, the complainant informed the Commission that he wished to withdraw the portions of his complaint described at subparagraphs 2b) and 2c), above, but also reaffirmed the portions of his complaint described at subparagraphs 2a) and 2d), above.
4. Section 1-21, G.S., provides in relevant parts:
The agenda of the regular meetings of every public agency,
except for the general assembly, shall be available to the public
and shall be filed, not less than twenty-four hours before the
meetings to which they refer….
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.
5. Section 1-18a(e), G.S., provides in relevant part:
"Executive sessions" means a meeting of a public agency at
which the public is excluded for one or more of the following
purposes:… (4) discussion of the selection of a site or the lease,
sale or purchase of real estate by a political subdivision of the
state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until
such time as all of the property has been acquired or all
proceedings or transactions concerning same have been
terminated or abandoned….
6. It is found that on February 5, 1997 an agenda was made available for the meeting, containing as “Item II” a heading entitled “Appointments/Reappointments”, followed by a heading entitled “1. Attachment”. Immediately prior to the meeting and not twenty-four hours before such meeting, a three page attachment was made available listing boards and commissions, together with various information for each position including the names of specific individuals being considered for appointment or reappointment.
7. It is found that by a seven to two vote, the respondent voted at the meeting to “consider the list of reappointments/appointments by Board or Commission.” While this motion was not styled with pristine legal clarity to permit consideration of subsequent business not included on the filed agenda, it did demonstrate an affirmative vote of a two-thirds majority in favor of taking up the specific appointments of listed individuals for the named boards and commissions.
8. It is concluded that, even assuming the Commission were to hold (which it has not) that the agenda did not give adequate notice to consider the appointment of individuals to named boards and commissions, the two thirds affirmative vote cured any notice violation of §1-21, G.S., that could have resulted from taking up the appointments.
9. It is found that the executive session described at paragraph 2d) was convened to consider the Larson Farm option and that, because the Mayor had executed the option before the Town Council approved specific contract language, members of the Town Council could have argued that the contract was without force and effect.
10. It is further found that a public discussion of the validity of the contract could have provoked the property owner to state that the option was invalid, that he was withdrawing from it and that he would only enter a new contract at a higher price. Therefore, there was “a likelihood of increased price”, as the term is used in §1-18a(e)(4),G.S., if the Town Council had publicly discussed the Larson Farm option.
11. It is also found that there was a “likelihood of increased price” because, notwithstanding the fact that Peter Larson’s desire to negate or revise the terms of the option was not ultimately discussed at the executive session, no Town Council member could know at the time the executive session was convened exactly what aspects of the Larson Farm option would be brought up for discussion at the meeting by other members of the Town Council.
12. It is concluded that there was no violation of §1-18a(e), G.S., as a result of the executive session convened at the meeting.
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.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 10, 1997.
Doris V. Luetjen
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:
37 Cherniske Road
New Milford, CT 06776
Town Council, Town of New Milford
c/o Francis J. Collins
148 Deer Hill Avenue
P.O. Box 440
Danbury, CT 06810
Doris V. Luetjen
Acting Clerk of the Commission