FREEDOM OF INFORMATION COMMISSION
|In the Matter of a Complaint by||FINAL DECISION|
|Roland Jernstrom and Frances Jernstrom,|
|against||Docket #FIC 1997-406|
|Carol St. Ament; Frank
Gallow; Thomas Rizer; and Hollis
Hooper, as members of the Zoning
Board of Appeals, Town of Plainfield;
and Zoning Board of Appeals, Town
|Respondents||August 26, 1998|
The above-captioned matter was heard as a contested case on April 16 and May 28, 1998, at which times the complainants and the respondents 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 respondents are public agencies within the meaning of §1-18a(a), G.S.
2. By letter dated December 9, 1997, and filed with the Commission on December 10, 1997, the complainants appealed to the Commission alleging that the respondents violated the Freedom of Information Act (FOIA) by holding a meeting without proper notice and consider[ing] a non-agenda item at a regular meeting on a basis that was predetermined.
3. By letter dated December 11, 1997, and filed with the Commission on December 15, 1997, counsel for the complainants supplemented the complaint with a request that the actions of the respondent Board at the meeting held on December 2, 1997 be declared null and void and that maximum civil penalties be assessed against the respondents.
4. Section 1-21, G.S., provides in pertinent part:
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. It is found that respondent Gallow, while a member of the respondent Board, himself applied to the respondent Board for a variance and recused himself from any action as a member of the respondent Board on such application. Respondent Gallows application received a three to one affirmative vote at the November 5, 1997 meeting of the respondent Board. However, since four affirmative votes were required for the respondent Board to grant a variance, the respondent Board did not grant a variance to respondent Gallow at its November 5, 1997 meeting.
6. It is found that, at the November 5, 1997 meeting of the respondent Board, the chairperson, respondent St. Ament, overlooked appointing Hollis Hooper to be a voting member to act in the place of respondent Gallow, and that but for this oversight, Mr. Gallows variance application would have received the four votes necessary for the variance to be granted. It is also found that the attorney for the complainant as well as a staff member of the respondent Board persuaded the respondent St. Ament not to conduct a re-vote at the November 5, 1997 meeting, which re-vote would have resulted in four votes for the variance.
7. It is found that, following the newspaper publication of a denial of respondent Gallows variance application, which members of the respondent Board had generally believed had been approved at the November 5, 1997 meeting, there was some discussion among individual members of the respondent Board (specifically between respondent St. Ament and respondent Zak, and between respondent Rizer and respondent Zak) prior to the December 2, 1997 meeting of the respondent Board. The relevant sworn testimony was that these discussions extended only to the need to do something at the next meeting of the respondent Board to correct an inaccurate reflection of the actions of the respondent Board at its November 5, 1997 meeting. The Commission does not have evidence in the record to hold otherwise.
8. It is found that the agenda posted for the December 2, 1997 meeting included an item to review and act on minutes of November 5, 1997 meeting, but did not include any item for action to approve the variance application of respondent Gallow. It is also found that the complainant Frances Jernstrom would have attended the December 2, 1997 meeting of the respondent Board if the agenda had included an item for action to approve the variance application of respondent Gallow.
9. It is found that there was no vote of two-thirds vote of the respondent Board to add as subsequent business an item for action to approve the variance application of respondent Gallow, and that the respondent Board took up the variance application following discussion of the minutes of November 5, 1997. It is also found that the four to one vote to grant the variance application represented more than the two-thirds that was necessary to bring the matter properly before the respondent Board.
10. It is concluded that the respondents violated §1-21, G.S. when, without first recording a two thirds vote to do so, they took up a motion to approve the variance application of respondent Gallow (which is different business than a motion to correct minutes).
11. However, the Commission, in its discretion, declines to assess civil penalties against the respondents.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The vote to approve the variance application of respondent Gallow taken at the December 2, 1997, meeting of the Plainfield Zoning Board of Appeals is hereby declared null and void.
2. Henceforth, the respondent Board shall not take up any subsequent business not listed on its posted agenda without first recording a two thirds vote to do so. Approved by Order of the Freedom of Information Commission at its regular meeting of August 26, 1998.
_________________________ 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:
Roland Jernstrom and Frances Jernstrom c/o Atty. B. Paul Kaplan 643 Norwich Road Plainfield, CT 06374
Carol St. Ament; Frank Zak; James Gallow; Thomas Rizer; and Hollis Hooper, as members of the Zoning Board of Appeals, Town of Plainfield; and Zoning Board of Appeals, Town of Plainfield c/o Atty. Michael P. Carey Brown, Jacobson, Tillinghast, Lahan & King, P.C. 22 Courthouse Square Norwich, CT 06360
__________________________ Doris V. Luetjen Acting Clerk of the Commission