FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION
Adam J. Teller,  
  Complainant  
  against   Docket #FIC 2010-659
Zoning Commission, Town of Old Lyme;
and Board of Selectmen, Town of Old
Lyme,
 
  Respondents October 12, 2011
       

 

The above-captioned matter was heard as a contested case on May 18, 2011, at which time the complainant and the respondents 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 respondents are public agencies within the meaning of 1-200(1), G.S.

 

2.  By letter dated October 20, 2010 and filed with the Commission on October 21, 2010, the complainant appealed to the Commission, alleging that the respondents violated the Freedom of Information (“FOI”) Act by:

 

a.       failing to provide notice of the October 18, 2010 special meeting of the respondent board and/or joint meeting of both respondents;

b.      failing to adequately apprise the public of the purpose of the October 18, 2010 executive session (the “executive session”) in the agendas and minutes of the respondents’ special meetings;

c.       convening jointly in executive session for an improper purpose; and

d.      failing to limit attendance at the executive session to the period of time necessary for such invited persons to present their testimony or opinion.

 

In addition, the complainant requested that the Commission order the following relief:

 

e.       “[t]hat the Zoning Commission (and the Board of Selectmen, if applicable) produce minutes describing in detail the matters discussed in the ‘executive session’ and the persons in attendance at that session;

f.       [t]hat the Zoning Commission (and the Board of Selectmen, if applicable) and all individual members, staff, and all other attendees at the ‘executive session’ be ordered to produce and make available to the public any recordings, notes, documents, or other material used or created during the ‘executive session’ so as to allow the public proper access to such public records as would have been available during a public meeting, and to permit reconstruction of the actual discussion and events of the unlawfully closed meeting(s);

g.      [t]hat the Zoning Commission (and the Board of Selectmen, if applicable) and all individual members present, be ordered to comply with the [FOI] Act in the future; and

h.      [t]hat appropriate monetary sanctions be imposed against any member of either the Commission or the Board of Selectmen who is found to have willfully violated the Freedom of Information Act.”

 

3.  It is found that, on October 18, 2010, the respondent commission held a special meeting in the Auditorium/Meeting Hall of the Old Lyme Town Hall (the “special meeting”). 

 

4.  Section 1-200(2), G.S., provides in relevant part that:

 

“Meeting” means 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… A quorum of the members of a public agency who are present at any event which has been noticed and conducted as a meeting of another public agency under the provisions of the Freedom of Information Act shall not be deemed to be holding a meeting of the public agency of which they are members as a result of their presence at such event.

 

5.  Section 1-210(a), G.S., provides in relevant part that “[e]ach such agency shall make, keep and maintain a record of the proceedings of its meetings.”

 

6.  Section 1-225(d), G. S., provides in relevant part that:

 

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 . . . The notice shall specify the time and place of the special meeting and the business to be transacted.

 

7.  It is found that the respondent commission noticed the October 18, 2010 special meeting, which notice provided the date, time and place of the meeting, and the agenda.  It is found that the agenda lists four items: (1) Convene Meeting; announcement of voting members; (2) Introduction of attendees and announcement of who will be admitted into an Executive Session to discuss threatened litigation; (3) Executive Session to discuss threatened litigation regarding the seasonal dwelling registry; and (4) Adjournment.

 

8.  It is found that such agenda lists the start time of the special meeting as 6:00 p.m., and that the minutes reflect that at 6:05 p.m., a motion was made, seconded and adopted by the respondent commission to enter into executive session to discuss “threatened” litigation.  It is also found that the following persons attended the executive session portion of the special meeting: members of respondent commission, three members of the respondent board, the Zoning and Wetlands Enforcement Officer, the Zoning Assistant, counsel for both the Zoning Enforcement officer and the respondent commission, counsel for the Zoning Board of Appeals, Town Counsel for the Town of Old Lyme, and Town Counsel for the Town of Old Saybrook.

 

9.  It is found that the respondent commission voted to come out of executive session at 7:30 p.m. and then voted to adjourn the special meeting at 7:33 p.m. 

 

10.  It is found that the first selectman and two other members of the respondent board attended the special meeting of the respondent commission on October 18, 2010. 

 

11.  It is found that the first selectman and the two other members of the respondent board participated in the commission’s special meeting.  In particular, it is found that they attended the executive session to discuss “threatened litigation” and participated in the discussion. 

 

12.  It is found that the board created minutes that identified their gathering as a special meeting of the board.  It is also found that such minutes state that during the gathering, the three board members voted to go into executive session at 6:11 p.m. for the purpose of discussing “threatened litigation.”  It is further found that such minutes state that the three board members voted to exit the executive session and to adjourn the gathering at 7:33 p.m., prior to the start of the board’s regular meeting scheduled for 7:30 p.m.

13.  It is found that a quorum of the board was present at the Commission’s special meeting.

 

14.  It is found, however, that the quorum of the board discussed a matter over which it has supervision or advisory power at the special meeting of the commission.  Therefore, the board was more than merely present at such meeting. 

 

15.  It is concluded, therefore, that the October 18, 2010 special meeting of the commission was also a special meeting of the board.

 

16.  It is found that the board failed to notice and make available an agenda for the October 18, 2010 joint special meeting; consequently, it is concluded that the respondent board violated 1-225(d), G.S., as alleged in paragraph 2.a, above.

 

17.  With respect to the complainant’s allegations described in paragraphs 2.b   and 2.c,  above, concerning the appropriateness of the respondents’ executive session, 1-225(a), G.S., provides, in relevant part that:

 

(a) The meetings of all public agencies, except executive sessions, as defined in subdivision (6) of section 1-200, shall be public . . .

 

18.  Section 1-200(6), G.S., defines “executive session” to mean:

 

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, because of the member’s conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled….

 

19.  Section 1-200(9), G.S., sets forth the following definition:

 

“Pending litigation” means (A) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (B) the service of a complaint against an agency returnable to court which seeks to enforce or implement legal relief or a legal right; or (C) the agency’s consideration of an action to enforce or implement legal relief or a legal right.

 

20.  Section 1-225(f), G.S., provides: “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.”

 

21.  It is found that the commission had received several letters from attorneys representing clients subject to the Old Lyme seasonal dwelling registry.  It is found that the commission anticipated that it might be sued at some point, but only one letter stated an intent to institute imminent legal action in federal court.

 

22.  It is found that only the letter that stated an intent to institute imminent legal action was “pending litigation,” within the meaning of 1-200(9), G.S.  

 

23.  It is found that the letter described in paragraph 22, above, stated an imminent intent to seek a temporary restraining order in order to force compliance with a settlement into which the commission had entered nearly 10 years ago.  In particular, it is found that the pending litigation sought to correct alleged inaccuracies with respect to the list of homeowners who qualified to be on the seasonal dwelling registry.

 

24.  It is found that the pending litigation against the commission was narrow in scope, and concerned only membership on the registry. It is found that the pending litigation did not include a challenge to the constitutionality or legitimacy of the seasonal dwelling registry. 

 

25.  It is found that the commission and the board did not confine their discussion in executive session to the pending litigation described in paragraph 23, above.  It is found that, instead, the respondents discussed strategy with respect to litigation that they anticipated based on the other attorneys’ letters.  It is found that the respondents engaged in a broad discussion of the policy behind the registry, the constitutionality of the registry, regulations concerning the registry, and how to deal with problems that may arise with the registry. 

 

26.  It is found that the respondents heard oral advice from an attorney for Old Saybrook about how the town resolved problems with the Old Saybrook seasonal dwelling registry.

 

27.  It is found that that the respondents’ discussion in executive session went far beyond strategy and negotiation with respect to the pending litigation against the town.  It is also found that the respondents failed to prove that any discussion of the pending litigation was limited to strategy and negotiation concerning the litigation.

 

28.  It is concluded, therefore, that the executive session was improper and that the respondents violated 1-225(a), G.S., by failing to permit public access to such session, as alleged in paragraph 2.c, above.

 

            29.  It is found that the public could not discern from the special meeting agenda and minutes of the respondents which specific litigation the respondents intended to take up in executive session during the joint special meeting.  Accordingly, it is found that such agenda item was both inaccurate and vague.

 

30.  It is concluded that the respondents violated 1-225(d), G.S., as alleged in paragraph 2.b, above, by failing to describe sufficiently the business to be transacted at its special meeting on the agenda for such meeting.

 

31.  With respect to the allegation contained in paragraph 2.d., 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 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.

 

32.  It is found that the respondents permitted non-agency members to be in attendance at the executive session in question for the entire session and beyond the time necessary for each to present testimony or opinion.

 

33.  Consequently, it is concluded that the respondents violated the provisions of 1-231(a), G.S., as alleged in paragraph 2.d, above, by permitting such non-agency members to be present and remain in attendance during the entire executive session.

 

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

 

1.  The respondents shall, within 90 days of the notice of final decision in this matter, cause minutes to be filed of the October 18, 2010 executive session.  Such minutes shall detail the matters discussed in the executive session and the persons in attendance at that session.

 

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

 

 

Approved by Order of the Freedom of Information Commission at its regular meeting of October 12, 2011.

 

__________________________

Cynthia A. Cannata

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:

 

Adam J. Teller

Leone, Throwe, Teller & Nagle

Attorneys at Law

33 Connecticut Boulevard

East Hartford, CT  06128

 

Zoning Commission, Town of Old Lyme;

c/o Eric Knapp, Esq.

Branse, Willis & Knapp, LLC

148 Eastern Boulevard

Suite 301

Glastonbury, CT  06033

 

and Board of Selectman, Town of Old Lyme

Old Lyme Memorial Town Hall

52 Lyme Street

Old Lyme, CT  06371

 

 

 

 

 

 

____________________________

Cynthia A. Cannata

Acting Clerk of the Commission

 

 

 

 

 

FIC/2010-659/FD/cac/10/12/2011