FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by

FINAL DECISION

Gilbert Kelman,

 

Complainant

 

 

against

Docket #FIC 2000-033

Board of Selectmen,
Town of Branford,

 

 

Respondents

June 14, 2000

 

 

 

 

The above-captioned matter was heard as a contested case on March 6, 2000, at which time the complainant and the respondent 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 respondent is a public agency within the meaning of §1-200(1), G.S.

 

            2.   By letter dated January 19, 2000, and filed with the Commission on January 21, 2000, the complainant alleged that the respondent violated the Freedom of Information (“FOI”) Act by failing to make available minutes of a March 25, 1999 meeting.   

 

            3.  Section 1-225, G.S., in relevant part provides that: 

 

“[t]he meetings of all public agencies…shall be open to the public.  The votes of each member of any such public agency upon any issue before such public agency shall be reduced to writing and made available for public inspection within forty-eight hours and shall also be recorded in the minutes of the session at which taken, which minutes shall be available for public inspection within seven days of the session to which they refer….”

 

            4.   Section 1-200(2), G.S., defines “meeting" as:

 

“…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….”

 

            5.   It is found that the complainant has been involved in a protracted land dispute with a neighbor in Branford, which has been adjudicated by the Appellate Court [hereinafter “the dispute”]. 

 

6.  It is found that, by letter dated March 16, 1998, the complainant requested that the first selectman and another selectman, Fran Walsh, act on §§47-54, 47-49 and 47-50, G.S., as a means of resolving the dispute which, despite an Appellate Court ruling, was ongoing at all times pertinent herein.    

 

7.  It is found that, subsequent to the respondent’s receipt of the letter described in paragraph 6, above, the complainant and the first selectman had several conversations over the course of a year about the dispute, but that during such time, the respondent did not act on the request described in such letter.

 

8.  It is found that, in March 1999, approximately one year after the letter described in paragraph 6, above, was mailed, the first selectman, through the respondent’s secretary, telephoned the complainant and invited him to meet in the first selectman’s office on March 25, 1999.   It is found that, at the time of such invitation, and up until the time of such meeting, the first selectman intended to meet with the complainant alone in order to discuss the dispute, and the possible application §§47-50, G.S., as a means of its resolution.  

 

9.  Section 47-50, G.S., provides:

 

“[w]hen a fence between adjoining proprietors has never been divided and either refuses to divide it, the other party may call on the selectmen to make a division, who shall set out, in writing, the better part to him who erected it or to the party holding under him; and the cost, certified by the selectmen in writing, shall be paid by him who refused to make such division.  Such division, when recorded in the town where the land lies, shall be binding on the parties.”

 

10.  It is found that on March 25, 1999, Fran Walsh, a member of the respondent board, happened to be at Town Hall attending to other matters, and that, shortly before the time of the appointed meeting described in paragraph 8, above, the first selectman briefly asked Selectman Walsh his opinion on the possible applicability of §§47-50, G.S., as a means of resolving the dispute. 

 

11.  It is found that, on March 25, 1999, the town attorney, Penny Bellamy, also happened to be at Town Hall attending to other matters, and that, either shortly before, or at, the time of the appointed meeting described in paragraph 8, above, the first selectman asked Attorney Bellamy for her opinion on the possible applicability of §§47-50, G.S., as a means of resolving the dispute. 

 

12.  It is found that, at the time of the appointed meeting described in paragraph 8, above, such meeting was held and that those in attendance were the complainant, two selectmen, and the town attorney [hereinafter, such meeting will be referred to as “the meeting”].

 

13.  It is found that, during the meeting, the town attorney opined that §47-50, G.S., did not apply to the dispute.  It is further found that the complainant objected to the town attorney’s participation at such meeting, contending that she had a conflict of interest regarding the dispute.   It is also found that such meeting ended somewhat abruptly at such point.

 

14.  It is found that the respondent did not vote on the applicability of §47-50, G.S., to the dispute during the meeting, but that at such time the first selectman informed the complainant that he did not believe such statue applied to the dispute.   

 

15.  It is found that the meeting lasted approximately five minutes.

 

16.  It is found that by letter, dated January 7, 2000, the complainant, through his attorney, requested that the respondent board provide a copy of the minutes of the meeting.

 

17.  It is found that the respondent board did not prepare minutes of the meeting.

 

18.  It is found that the respondent board is comprised of three members and that two members of such board constitute a quorum.

 

19.  It is concluded that the decision as to whether §47-50, G.S., applied to the dispute was a matter over which the respondent board had supervision, control, jurisdiction or advisory power, within the meaning of §1-200(2), G.S., and that the discussion of such issue between the selectmen, as described herein, was a communication by a quorum of the respondent about such matter. 

 

20.  It is found that the actions of the selectmen in this matter led to the convening of an unintentional meeting and, further, that the selectmen did not intend to violate the FOI Act by such actions.  Nevertheless, it is concluded that the respondent board violated §1-225, G.S., by failing to make available minutes of the meeting, as alleged in the complaint.

 

21.  At the hearing in this matter, the complainants requested that the respondent be ordered to prepare minutes of the meeting, or, in the alternative, that the Commission declare null and void action taken at such meeting.

 

22.  Section 1-206(b)(2), G.S., provides in relevant part that:

 

“…The commission may declare null and void any action taken at any meeting which a person was denied the right to attend and may require the production or copying of any public record….”

 

23.  It is found that the respondent did not take action at the meeting, within the meaning of §1-206(b)(2), G.S.

 

 

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

 

1.  Forthwith, the respondent shall prepare minutes of the meeting and shall provide the complainants with a copy of such minutes.

 

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of

June 14, 2000.

 

 

 

 

_________________________

Melanie R. Balfour

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:

 

 

Gilbert Kelman

c/o Atty. Bernard Pitterman

Guendelsberger & Taylor

28 Park Lane

New Milford, CT  06776

 

Board of Selectmen, Town of Branford

c/o Atty. James J. Perito

Susman, Duffy & Segaloff, PC

55 Whitney Avenue, PO Box 1684

New Haven, CT  06510-1300

 

 

 

 

 

__________________________

Melanie R. Balfour

Acting Clerk of the Commission

 

FIC2000-033FD/mrb/06/16/00