FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Wesley S. Lubee, Jr.,   
  Complainant  
  against   Docket #FIC 2003-381

Zoning Enforcement Officer, Land

Use Bureau, City of Stamford,

 
  Respondent  October 13, 2004
       

 

The above-captioned matter was heard as a contested case on May 27, 2004, at which time the complainant and the respondent appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.   For purposes of hearing, this matter was consolidated with Docket# FIC 2003-393; Wesley S. Lubee Jr.  v. Board of Commissioners, Housing Authority, Town of Wallingford; Docket# FIC 2003-409; Wesley S. Lubee, Jr. v. Board of Commissioners, Housing Authority, Town of Wallingford; Docket# FIC 2003-413; Wesley S. Lubee, Jr. v. Board of Commissioners, Housing Authority, Town of Wallingford; and Docket# FIC 2003-415; Wesley S. Lubee, Jr. v. Board of Commissioners, Housing Authority, Town of Wallingford.

 

            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 of complaint dated and filed on October 22, 2003, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information [hereinafter “FOI”] Act with respect to various meetings as described in paragraph 3, below, in the following ways:

 

a.  the minutes of the respondent’s meetings were abbreviated and not verbatim;

 

b.  there was no schedule of annual meetings filed with the Wallingford town clerk or the Secretary of the State;

 

 

c.  neither the Secretary of the State nor the Wallingford Town Clerk have received notices of the respondent’s special meetings;

 

d.  the respondent convened twenty executive sessions in twenty-four months;

 

e.  there has never been a recorded motion or a recorded two-thirds vote to enter executive session;

 

f.  the attendance at executive sessions has never been recorded;

 

g.  there is seldom a recorded motion to return to open session.  

 

3.  Attached to the letter of complaint were minutes of the following meetings that the complainant alleges violated the FOI Act:  January 23, 2001, February 27, 2001, March 21, 2001, May 9, 2001, July 17, 2001, September 25, 2001, October 23, 2001, November 27, 2001, January 23, 2002, January 28, 2002, February 5, 2002, February 26, 2002, March 21, 2002, April 19, 2002, May 28, 2002, July 19, 2002, September 24, 2002, October 22, 2002, November 26, 2002, December 13, 2002, February 23, 2003, March 26, 2003, April 23, 2003, and May 27, 2003.  

 

4.  It is concluded that the allegations described in paragraphs 2.a, 2.d, and 2.g, above, do not allege violations of the FOI Act.  Accordingly, such allegations shall not be further addressed herein.

 

5.   It is found that, by letter to the Commission dated and filed December 15, 2003, the complainant withdrew that portion of the complaint described in paragraph 2.b, above.  Accordingly, such allegation will not be further addressed herein. 

 

6.  With respect to the allegation described in paragraph 2.c, above, 1-206(b)(1), G.S., provides in relevant part that:

 

[a]ny person denied the right to inspect or copy records under section 1-210 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by the Freedom of Information Act may appeal therefrom to the Freedom of Information Commission, by filing a notice of appeal with said commission.  A notice of appeal shall be filed within thirty days after such denial….  

 

7.  It is found that the most recent meeting described in the attachment to the complaint was the meeting of May 27, 2003. 

 

 

8.  It is found that the notice of appeal was filed more than thirty days after the meetings described in the attachment to the complaint.  Accordingly, it is concluded that the Commission lacks jurisdiction over the allegation described in paragraph 2.c, above, and it shall not further be addressed herein.

 

9.  However, the Commission has consistently concluded that the failure to maintain accurate minutes is a continuing violation.   Accordingly, the allegations set forth in paragraphs 2.e and 2.f, above shall be addressed below.

 

10.  With respect to the allegation set forth in paragraph 2.e, above, 1-225, G.S., provides in relevant part:

 

“(f) [a] public agency may hold an executive session…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….”

 

“(a)…[t]he votes of each member of any…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….”

 

11.  It is found that, with respect to the minutes of the following meetings of the respondent, such minutes contain a record of a two-thirds vote to enter executive session within the meaning of 1-225(a), G.S.: February 27, 2001, March 21, 2001, May 9, 2001, July 17, 2001, September 25, 2001, January 28, 2002, April 19, 2002, July 19, 2002, September 24, 2002, October 22, 2002, November 26, 2002, December 13, 2002, February 23, 2003, March 26, 2003, and April 23, 2003.  Accordingly, it is concluded that the respondent did not violate 1-225(a), G.S., by failing to record such votes, as alleged in paragraph 2.e, above.   

 

12.  It is found that, with respect to the minutes of the following meetings of the respondent, such minutes do not contain a record of a two-thirds vote to enter executive session within the meaning of 1-225(f), G.S.: February 5, 2002, March 21, 2002, and May 28, 2002.  Accordingly, it is concluded that the respondent violated 1-225(f), G.S., by failing to record such votes, as alleged in paragraph 2.e, above.   

 

13.  With respect to the allegation set forth in paragraph 2.f, above, 1-231(a), G.S. provides:

 

“At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body provided that such persons' attendance shall be limited to the period for which their presence is necessary to present such testimony or opinion and, provided further, that the minutes of such executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by such agency.”

 

            14.  The respondent contends that, since all attendees to meetings, including the public, are listed at the outset of the respective minutes to such meetings, and since subsequent arrivals and departures are denoted, the attendees at executive sessions can be deduced from an overall reading of such minutes.  However, it is concluded that such practice does not conform to the requirements of 1-231(a), G.S., since members of the public need not identify themselves when attending public meetings,[1] and since individuals other than public agency members may be invited into executive sessions to present testimony or opinion, pursuant to such provision. 

 

            15.  It is found that, with respect to the minutes of the following meetings, such minutes do not disclose all persons who were in attendance at the respective executive sessions, within the meaning of 1-231(a), G.S.:  February 27, 2001, March 21, 2001, May 9, 2001, July 17, 2001, September 25, 2001, January 28, 2002, February 5, 2002, March 21, 2002, April 19, 2002, May 28, 2002, July 19, 2002, September 24, 2002, October 22, 2002, November 26, 2002, December 13, 2002, February 23, 2003, March 26, 2003, and April 23, 2003.  Accordingly, it is concluded that the respondent violated 1-231(a), G.S., by failing to disclose such information, as alleged in paragraph 2.f, above.   

 

16.  It is found that the respondent did not conduct executive sessions on January 23, 2001, October 23, 2001, November 27, 2001, January 23, 2002, February 26, 2002, and May 27, 2003.  Accordingly, it is concluded that the respondent did not violate the FOI Act as alleged in paragraphs 2.e and 2.f, above, on such dates. 

 

17.  At the hearing in this matter, the complainant asked that the action taken during the October 22, 2002 meeting of the respondent, which involved listing real property with a broker, be declared null and void. 

 

18.  The Commission declines to declare null and void the action described in paragraph 17, above.

 

19.   At the hearing in this matter, the respondent acknowledged that its members need FOI training, and informed the Commission that an attorney has been engaged to present such training to the respondent. 

 

 

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

  

 

            1.  Henceforth, the respondent shall strictly comply with the provisions of 1-225(a) and 231(a), G.S.

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 13, 2004.

 

________________________________

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:

 

            Wesley S. Lubee, Jr.

            15 Montowese Trail

            Wallingford, CT 06492

 

Board of Commissioners,

Housing Authority,

Town of Wallingford

c/o E. James Loughlin, Esq.

Loughlin Fitzgerald

150 South Main Street

Wallingford, CT 06492

 

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

FIC/2003-381FD/paj/10/14/2004

 

 

                                                                                     

 



[1] Section 1-225(e), G.S., provides: “No member of the public shall be required, as a condition to attendance at a meeting of any such body, to register the member’s name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to the member’s attendance.”