FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Tracy Carroll,  
  Complainant  
  against   Docket #FIC 2008-460

Executive Board, Morningside

Association, 

 
  Respondent April 8, 2009
       

 

The above-captioned matter was heard by Commissioner Vincent M. Russo as a contested case on October 20, 2008, at which time the complainant appeared and presented testimony, exhibits and argument on the complaint, but the respondent did not appear.  At its regular meeting of February 11, 2009, the Commission unanimously appointed Commissioner Sherman D. London to prepare a proposed final decision in this matter, due to the recent death of Commissioner Russo.  On March 13, 2009, Commissioner London reviewed the evidence in this case, listened to the recording of the hearing that had taken place on October 20, 2008, and issued the following proposed final decision. 

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 July 2, 2008 and filed July 10, 2008, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information Act (“FOI Act”) in the following ways:

a.       by having a purposely vague agenda;

b.      by voting to rescind an easement without discussion, debate or proper public notice and immediately thereafter voting to approve a new easement in the same manner;

c.       by having a secret meeting;

d.      by failing to respond to a request for a copy of a public record; and

e.       by creating minutes that do not include reference to public comment and/or information that the complainant believes to be false, accusatory or extraneous. 

 

3.      At the hearing on this matter, the complainant testified that he had received the copy of the public record that he requested, and, as such, the matter referenced in paragraph 2.d, above, is no longer at issue in this case. 

4.      Section 1-225(c), G.S., provides, in relevant part:

 

The agenda of the regular meeting of every public agency. . . shall be available to the public and shall be filed, not less than twenty-four hours before the meeting to which they refer, (1) in such agency’s regular office or place of business, and (2) . . . in the office of the clerk of such subdivision for any public agency of a political subdivision of the state or in the office of the clerk of each municipal member of any multitown district or agency. . . . 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 the agenda for the respondent’s June 10, 2008 regular meeting lists the following items of business to be transacted: 

 

1.      Roll Call

2.      Approval of Minutes of May 13, 2008 Meeting

3.      Treasurer’s Report

4.      President’s Report

5.      Charter Revision Update

6.      Unfinished Business

7.      New Business

8.      Any Other Business That May Rightfully Come Before Us

 

6.       With respect to the allegation described at paragraph 2.b., above, the complainant contends that the respondent should have conducted a public discussion or debate concerning the rescission of one utility easement and the approval of another utility easement prior to voting upon these matters.  The complainant further contends that these items were not properly added to the agenda before they were voted on.

 

7.      It is found that, under the agenda item of “New Business,” the respondent made a motion to rescind a utility easement that had been approved at a January 22, 2008 Special Meeting.  It is found further that the motion to rescind the utility easement passed by a unanimous vote. 

 

8.      In addition, it is found that, immediately after rescinding the easement described in paragraph 7, above, a member of the respondent agency made a motion to approve a new utility easement and this motion also passed by a unanimous vote. 

 

9.      It is found that, prior to the voting on the approval of the new utility easement, the secretary of the respondent agency passed out a copy of the proposed easement, and the members of the respondent agency reviewed this record. 

 

10.  It is found, however, that the respondent did not add the issues concerning the rescission or approval of the easements to its agenda by an affirmative vote of two thirds of its members present and voting before taking action on these matters, but rather simply acted upon the motions themselves. 

 

11.  It is found that the respondent failed to follow the necessary procedures to add the matter of rescinding the existing easement and approving a new easement to its agenda prior to taking action on these items. 

 

12.  It is therefore concluded that the respondent violated 1-225(c), G.S., by failing to properly add the issue of rescinding an easement and the issue of approving another easement to its agenda before voting on these matters.

 

13.  However, because the FOI Act does not mandate that the members of a public agency engage in a public discussion or a public debate before voting on a matter, it is concluded that the respondent did not violate 1-225(c), G.S., when its members chose not to “discuss” or “debate” the rescission or the approval of the easements prior to voting upon these matters. 

 

14.  With respect to the allegations in described in paragraph 2.a., above, the complainant contends that the agenda did not reasonably apprise the public that the respondent would consider the issue of rescinding the current utility easement, and subsequently consider the issue of approving another utility easement.  Specifically, the complainant contends that if the respondent knew in advance that the issues of rescinding and approving these easements were going to be acted upon, these issues should have been placed on the agenda so that members of the public concerned with these matters could have attended the respondent’s June 10, 2008 meeting.  The complainant further contends that the respondent “purposely” omitted the business it had planned with regard to the easements from the agenda because these issues were controversial. 

 

15.  It is found that the complainant did not attend the respondent’s June 10, 2008 regular meeting.

 

16.  It is further found that, based on the testimony of the complainant, the complainant is a member of the respondent agency who would have attended the June 10, 2008 meeting had he been apprised that the respondent was going to take action upon or consider the rescission of one utility easement and the approval of another.

 

17.  In Zoning Board of Appeals of the Town of Plainfield, et al. v. FOIC, et al., Superior Court, Docket No. 99-0497917-S, Judicial District of New Britain, Memorandum of Decision dated May 3, 2000 (Satter, J.), reversed on other grounds, 66 Conn. App. 279 (2001), the court observed that one purpose of a meeting agenda “is that the public and interested parties be apprised of matters to be taken up at the meeting in order to properly prepare and be present to express their views,” and that “[a] notice is proper only if it fairly and sufficiently apprises the public of the action proposed, making possible intelligent preparation for participation in the hearing.”

 

18.  It is concluded that the agenda item labeled as “New Business,” as well as all the other agenda items, was not itself sufficient to apprise the public and interested parties that the respondent was going to take up the matter of rescinding the existing utility easement and approving another utility easement at the June 10, 2008 meeting.

 

19.  It is therefore concluded that the respondent violated 1-225(c), G.S., by failing to describe fairly and sufficiently the business to be transacted at the June 10, 2008 meeting agenda.

 

20.  However, the complainant did not present evidence sufficient to prove that the respondent’s failure to describe the business it planned to transact on the agenda for the June 10, 2008 meeting was done purposely.

 

21.  With respect to the allegations described in paragraph 2.c, above, the complainant contends that the fact that the members of the respondent agency did not engage in public discussion or a public debate concerning the rescission of one easement and the approval of another easement prior to casting their votes on these issues evidences that the respondent must have held a secret meeting on these matters prior to the June 10, 2008 regular meeting. 

 

22.  While the complainant has a suspicion that a secret meeting was conducted, it is found that there is inadequate evidence upon which to determine that the respondent held a secret meeting prior the June 10, 2008 regular meeting.

 

23.  It is therefore concluded that the respondent did not violate the FOI Act by conducting a secret meeting. 

 

24.  Finally, with respect to the allegations described in paragraph 2.e, above, the complainant contends that the respondent’s meeting minutes are not an actual reflection of the discussions that have occurred in the respondent’s meetings.  Specifically, the complainant contends that the respondent placed the issue of approving the original utility easement on the agenda of its November 13, 2007 meeting, and there was considerable public opposition at the meeting to the easement being approved.  The complainant further contends that the approval of this easement met with similar public opposition thereafter at the December 11, 2007, the December 20, 2007 and the January 22, 2008 meetings.  The complainant contends that the minutes of these meetings do not accurately reflect the actual discussions that occurred at the meetings and that the respondent has “cherry picked” facts for inclusion in the minutes that eschew the actual discussions.  

 

25.  It is well known, however, that the FOI Act does not require verbatim minutes.  Rather, the Commission has long held that minutes must contain, at a minimum, the date, time and place of the meeting, members present, action taken, and the votes of members with respect to such action.  See, e.g., Margaret Faber v. Middle Haddam Historic Dist. Comm’n, Town of East Hampton, Docket #FIC 2007-441 (Feb. 27, 2008). 

 

26.  It is concluded that the complainant’s allegation described in paragraph 2.e, above, does not involve a violation of the FOI Act. 

 

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 requirements of 1-225(c), G.S., by fairly and sufficiently detailing on its meeting agendas the business it plans to address at its meetings.  In addition, the respondent shall forthwith review the provisions of 1-225(c), G.S., so that it is familiar with the procedures required to add new items of business to an agenda of a regular meeting. 

 

2.  Forthwith, the respondent, or its designee, shall arrange for an FOI Act training session to be conducted by the staff of the FOI Commission.  The respondent, or its designee, shall forthwith contact the FOI Commission to schedule such training session.   

 

Approved by Order of the Freedom of Information Commission at its special meeting of April 8, 2009.

 

 

____________________________

S. Wilson

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:

 

Tracy Carroll

91 Terrace Road

Milford, CT 06460

 

Executive Board, Morningside

Association

P.O. Box 5068

Milford, CT 06460

 

 

 

____________________________

S. Wilson

Acting Clerk of the Commission

 

 

FIC/2008-460FD/sw/4/16/2009