OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by
|Docket #FIC 2001-245|
Planning and Zoning
|November 28, 2001|
The above-captioned matter was heard as a contested case on August 2, 2001, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint. R. D. Hendon Realty Inc.’s request to be made an intervenor was granted by the Hearing Officer; its request to be made a party was denied.
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),
2. By letter dated May 16, 2001 and filed on May 18, 2001, the complainant appealed to the Commission alleging that the respondent violated the Freedom of Information (“FOI”) Act by:
i) failing to fully disclose the agenda for the respondent’s special meeting and executive session held on April 24, 2001 at 6:30 p.m.; by indicating on the agenda that litigation would be addressed but not which litigation; by convening the meeting at 6:30 p.m. when meetings are usually held at 7:30 p.m.;
ii) not permitting the public to speak at the April 24, 2001 special meeting;
iii) not making the amended site plan available to the public “through May 14, 2001”; by denying the public access to the “stipulation for judgment” in docket No. CV000339151, before it was signed by the town [of Bethel] and Hendon; and
iv) by denying the public as of the date of this complaint, copies of the amended final site plan and the signed settlement.
3. It is found that during December 1999 R. D. Hendon Realty Inc., (hereinafter “Hendon”) filed an application with the respondent for approval of a site plan and excavation permit in connection with the construction of a retail store on Route 6 in the town of Bethel. It is found that on March 28, 2000, the respondent denied Hendon’s application, which denial Hendon appealed to the Danbury Superior Court. It is found that on or about April 23, 2001, while such appeal was pending, Hendon and the respondent’s counsel reached a tentative settlement in the matter. It is found that the respondent held a special meeting on April 24, 2001 (hereinafter “meeting”) during which it convened in executive session and discussed the tentative settlement. It is found that after reconvening in public session, the respondent voted and approved the proposed “stipulation for judgment” in settlement of Hendon’s appeal. It is found that the complainant opposed the granting of Hendon’s application and is now opposed to the settlement reached between the respondent and Hendon, which settlement the complainant contends essentially changes the respondent’s denial of Hendon’s application to an approval. The complainant is dissatisfied that the respondent did not provide its members with an opportunity for public input prior to the respondent settling the Hendon litigation.
4. With respect to the allegations as described in paragraph 2i, above, it is found that the respondent filed a notice of special meeting with the Bethel town clerk’s office on April 19, 2001, indicating that such meeting would be held on April 24, 2001 at 6:30 p.m.
5. Section 1-225(d), G.S., provides in relevant part:
Notice of each special meeting of every public agency …shall be given not less than twenty-four hours prior to the time of such meeting by filing a notice of the time and place thereof … in the office of the clerk of such subdivision for any public agency of a political subdivision of the state….
6. It is concluded that since the respondent timely filed a notice of the April 24, 2001 special meeting indicating a start time of 6:30 p.m., the respondent did not violate the FOI Act by starting the meeting at 6:30 p.m.
7. It is also found that the meeting notice, in relevant part, indicates the following agenda items:
“1) The Planning & Zoning Commission will hold an executive session to discuss litigation.
2) Hendon Corporation 7 Stony Hill Road
site plan/excavation permit”.
8. Section 1-225(f), G.S.,
provides in relevant part:
A public agency may hold an executive session as defined in subdivision (6) of section 1-200, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such executive session, as defined in section 1-200. [Emphasis added.]
9. Section 1-200(6), 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 … (B) strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof…is a party until such litigation or claim has been finally adjudicated or otherwise settled. [Emphasis added.]
10. In keeping with longstanding Commission precedent, it is concluded that there should be some notice to the public of the specific matter being litigated so that, at a minimum, the public will have some knowledge of the matter to be addressed in executive session. It is found that the respondent did not state the litigation to which the public agency or a member thereof is a party, prior to convening in executive session and therefore, did not state the reason for such session within the meaning of §§1-225(f) and 1-200(6)(B), G.S. It is found that the respondent could have, and should have indicated on the agenda, and publicly stated, before going into the executive session, that the Hendon litigation would be addressed in such session. Discussion of the possible settlement of the pending Hendon litigation was clearly a topic permitted for discussion in executive session as such matter constituted “strategy and negotiations” with respect to pending litigation.
11. It is therefore concluded
that the respondent violated §1-225(f),
G.S., by failing to state, prior to convening in executive session, that the
Hendon litigation would be addressed in such session.
Although not raised in the complaint, it is further concluded that the
respondent’s minutes of the April 24, 2001 special meeting should be amended
to reflect that the respondent convened in executive session and discussed
strategy and negotiations with respect
to the Hendon matter. The minutes
should also be amended to disclose all persons who attended the
executive session, pursuant to §1-231(a), G.S.
12. With respect to the allegation as described in paragraph 2ii, above, it is found that the complainant has not alleged any conduct on the part of the respondent that even if proven, would violate the FOI Act. Although public participation is laudable and in keeping with the spirit of the FOI Act, there is no provision in the FOI Act that provides the public the right to speak at a meeting. Consequently, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint.
13. With respect to the allegations as described in paragraph 2iii and 2iv, above, it is found that no “amended site plan” exists. Regarding the complainant’s contention that it was denied access to the stipulation for judgment before it was “signed in Danbury Superior Court,” it is found that during the public portion of the meeting, members of the complainant requested the stipulation for judgment. It is found that after the meeting, members of the complainant were provided with an opportunity to review the draft stipulation for judgment, however, the copy they were provided they were asked to return to the respondent that night. It is found that the stipulation for judgment was still a work in progress and following the meeting, counsel for the respondent had to make certain technical changes to such document. It is found that the day after the meeting, counsel for the respondent filed an executed copy of the stipulation for judgment in Danbury Superior Court, which court, after a hearing, approved the settlement between Hendon and the respondent.
14. It is found that with respect to the complainant’s request, made during the meeting, for the stipulation for judgment, the respondent provided the complainant with an opportunity to inspect the document, as it existed, on the night of the meeting. Section 1-210(a), G.S., provides, in relevant part: “every person shall have the right to inspect … [public] records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-212.” [Emphasis added.] It is concluded that the respondent provided the complainant with prompt access, outside of “regular business hours”. Therefore, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint.
15. Regarding the complainant’s contention that it was denied access to the stipulation for judgment as of the date of its FOI complaint in this matter, May 16, 2001, it is found that the day after the meeting, April 25, 2001, a member of the complainant requested a copy of the “legally signed” stipulation for judgment. Such request was made to the planning and zoning office and also to the town clerk’s office. It is found that neither of those offices had a copy of the “legally signed” stipulation for judgment. It is found that the member of the complainant then on April 25, 2001 visited the Danbury Superior Court and reviewed the stipulation for judgment on file with the court.
16. It is found that the planning and zoning office received a copy of the legally signed stipulation for judgment on or about May 24, 2001. Upon receipt of a request dated May 23, 2001 for the legally signed stipulation for judgment, the planning and zoning secretary, by letter dated May 25, 2001, informed the complainant’s member, described in paragraph 15, above, that a copy was available and could be picked up at their offices.
17. Based on the foregoing, it is concluded that the respondent did not violate the FOI Act as alleged in the complaint with respect to the requests for the stipulation for judgment and amended site plan.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. With respect to the portion of the complaint concerning the respondent’s failure to clearly state that the Hendon litigation was the matter to be addressed in executive session, the respondent shall henceforth, state the reason for executive sessions to discuss pending litigation in keeping with paragraphs 10 and 11, of the findings above. The respondent shall also amend the minutes of the April 24, 2001 special meeting to reflect a) that the respondent convened in executive session and discussed strategy and negotiations with respect to the Hendon matter and b) all persons who attended the executive session
2. The remainder of the complaint
is hereby dismissed.
3. The Commission notes that the members of the complainant who took their valuable time to bring this complaint and participate at the hearing in this matter did so in good faith. However, it is further noted that the crux of the complaint, i.e., the complainant’s members dissatisfaction with the decision of the respondent in settling the Hendon litigation, is a matter that appears to be one that the complainant’s members should have appropriately directed to the superior court, pursuant to §8-8(2)(b), G.S., which provision provides, in relevant part: “[A]ny person aggrieved by any decision of a board may take an appeal to the superior court…within fifteen days from the date that notice of the decision was published as required by the General Statutes.”
Approved by Order of the Freedom of Information Commission at its regular meeting of November 28, 2001.
Petrea A. Jones
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:
c/o Susen Blume
14 Westview Drive
Bethel, CT 06801
Planning and Zoning Commission, Town
c/o Martin J. Lawlor, Jr., Esq.
99 Greenwood Avenue
Bethel, CT 06801
Petrea A. Jones
Acting Clerk of the Commission