FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Raymond A. Geer,  
  Complainant  
  against    Docket #FIC 2004-147

Planning and Zoning Commission, Town

Of North Stonington,

 
  Respondent  December 15, 2004
       

 

The above-captioned matter was heard as a contested case on August 17, 2004, 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 1-200(1), G.S.

 

2.  By letter of complaint dated March 22, 2004 and filed on March 24, 2004, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information (“FOI”) Act at its March 11, 2004 regular meeting by:

 

i)                    failing to state clearly the reasons for going into executive session;

ii)                   failing to indicate in the minutes that Craig Grimord, Senior Planner and Zoning Enforcement Officer, and Cheryl Konsavitch, Administrative Assistant, attended the executive session;

iii)                 permitting Mr. Grimord and Ms. Konsavitch to remain in the executive session for a period longer than was necessary to give testimony or opinion;

iv)                 discussing or conducting business during the executive session on matters not permitted during executive session;

v)                  voting to take legal action while in executive session;

vi)                 failing to make the votes, described in 2v, above, a part of the public record; and

vii)               stating that the purpose of the executive session was for discussing “pending litigation” but then discussing possible new litigation on a separate but related case.  

 

3.  It is found that the respondent held a regular meeting on March 11, 2004 (hereinafter “meeting”), during which it convened in executive session (hereinafter “executive session”).

 

4.   With respect to the allegation described in paragraph 2i, above, it is found that the respondent, prior to convening in executive session, stated that the purpose of such session was to discuss “pending litigation”.  It is also found that the minutes of the meeting reference that the purpose of the executive session was “pending litigation”.

 

5.  Section 1-225(a), G.S., in relevant part, provides: “the meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be open to the public”.

 

6.  Section 1-225(f), G.S., also 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.

 

7.  This Commission has repeatedly stated that in order for the public to be meaningfully apprised of the purpose of an executive session, such purpose must be specifically stated and to simply indicate “pending litigation” is not sufficient to adequately apprise the public of the matter to be addressed in executive session.

 

8.  It is therefore, concluded that the respondent violated 1-225(f), G.S., by failing to state the reason for the executive session within the meaning of such provision.  

 

9.  With respect to the allegation described in paragraph 2ii, above, 1-231, G.S., provides:

 

(a)  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.

 

10.  It is found that Mr. Grimord and Ms. Konsavitch attended the entire executive session.  It is also found that the respondent’s “draft minutes” of the meeting, which were the minutes on file, and made available to the complainant at the time he filed this complaint, are inaccurate and do not indicate that Mr. Grimord and Ms. Konsavitch attended the executive session.  It is further found that the respondent’s  “approved minutes”, which were subsequently filed on April 6, 2004, do correctly indicate that Mr. Grimord and Ms. Konsavitch attended the executive session.  It is therefore, concluded that the respondent did not violate 1-231(a), G.S., with regard to disclosing all persons in attendance at the executive session.

 

11.  With respect to the allegation described in paragraph 2iii, above, it is found that while Mr. Grimord’s attendance at the executive session was necessary to present testimony or opinion, within the meaning of 1-231(a), G.S., the respondent failed to prove that Ms. Konsavitch’s attendance at such session was necessary within the meaning of 1-231(a), G.S.  Therefore, it is concluded that the respondent violated such provision.

 

  12.  With respect to the allegations described in paragraphs 2iv and 2vii, above, it is found that during the executive session the respondent discussed the Gencarella litigation, which litigation arose after the respondent appealed the North Stonington Zoning Board of Appeals’ (“ZBA”) granting of a variance on September 9, 2003 to David and Susan Gencarella (hereinafter “Gencarella one”), and which matter was pending in the superior court.

 

13.  It is also found that the respondent discussed strategy during the executive session with respect to Gencarella one.  It is therefore, found that the court appeal in Gencarella one was an appropriate topic for discussion during the executive session, within the meaning of 1-200(6)(B), G.S., which provision permits discussion in executive session of: “strategy and negotiations with respect to pending claims or pending litigation to which the public agency … is a party until such litigation or claim has been finally adjudicated or otherwise settled.”

 

14.  It is also found that while in executive session, the respondent discussed the ZBA’s granting of a second variance on March 9, 2004 to the Gencarellas (hereinafter “Gencarella two”) and how the granting of that second variance might affect the respondent’s negotiations with the Gencarella’s in Gencarella one.  It is found however, that no litigation was pending with respect to Gencarella two at the time of the executive session.

 

15.  It is therefore, concluded that Gencarella two was not an appropriate topic for executive session, within the meaning of 1-200(6)(B), G.S., and therefore, the respondent violated such provision by discussing Gencarella two during the executive session, as alleged in paragraphs 2iv and 2vii, of the findings, above.

 

16.  With respect to the allegations described in paragraphs 2v and 2vi, above, it is found that the respondent did not vote during the executive session on any matter, including the decision to appeal Gencarella two to the court.   It is found that the decision to take such appeal was subsequently made jointly by Mr. Grimord and counsel at the direction of the respondent.

 

17.  It is therefore, concluded that since the respondent did not vote during the executive session it did not violate the FOI Act as alleged in paragraphs 2v and 2vi, of the findings, above.

 

            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 state the reason for holding an executive session with sufficient specificity so that the public is clear on the matter to be addressed in such session, prior to convening such session.

 

2.  Henceforth, the respondent shall limit attendance of persons invited to attend an executive session to the period necessary to present their testimony or opinion.

 

3.  Henceforth, the respondent shall limit discussion during an executive session convened pursuant to 1-200(6)(B), G.S., to matters permitted under such provision.

 

 

Approved by Order of the Freedom of Information Commission at its special meeting of December 15, 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:

 

Raymond A. Geer

637 Lantern Hill Road

PO Box 4

North Stonington, CT 06359

 

Planning and Zoning Commission,

Town of North Stonington

c/o Michael P. Carey, Esq.

Suisman, Shapiro, Wool, Brennan,

Gray & Greenberg, P.C.

2 Union Plaza, Suite 200

PO Box 1591

New London, CT 06320

 

___________________________________

Petrea A. Jones

Acting Clerk of the Commission

 

 

 

FIC/2004-147FD/paj/12/16/2004