In the Matter of a Request
    for Advisory Opinion





)     Advisory Opinion   #35



Town Counsel Town of North Haven, Applicant

)     December 13, 1978








On November 22, 1978, the Commission considered and agreed to respond to the request for an advisory opinion filed by the Town Counsel, Town of North Haven.


In his request, the applicant states that the Board of Selectmen of the Town of North Haven wishes to allow members of the public to address it during the course of its meetings. Since that agency may not know in advance what subjects will be raised during the public participation segment of its meetings, it may not be able to comply with the agenda requirements of Conn. Gen. Stats. 1-21. That statute reads in pertinent part:


The agenda of the regular meetings of every public agency, except for the general assembly, shall be available to the public and shall be filed, not less than twenty-four, hours before the meetings to which they refer, in such agency's regular office or place of business or, if there is no such office or place of business, in the office of the secretary of the state for any such public agency of the state or in the office of the clerk of such subdivision for any public agency of a political subdivsi6n of the state. 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.


In essence, the applicant requests the Commission's opinion as to whether a public agency can accommodate public comments at its meetings without violating the provisions of 1-21.


The Freedom of Information Act neither explicitly mandates nor prohibits public comments at meetings of any public agency. Consequently, such a practice is entirely within the discretion of each agency, unless required or restricted by other applicable law. The Commission, however, is strongly in favor of public participation at agency meetings, to whatever extent possible. It is the Commission's firm belief that the spirit of the Freedom of Information Act, and the concept of open government that it fosters, is not limited to public agencies disclosing their records and providing access to their meetings. If open government is to become a reality, public agencies must open their proceedings to receive the concerns and opinions of the people whom they serve. The Commission commends the Board of Selectmen of the Town of North Haven for recognizing this fundamental principle and attempting to give it effect.


While l-21 classifies all public agency meetings into three categories, its agenda provisions refer to regular meetings only. As a result, agendas are not required for special or emergency meetings, although an agency may utilize them as a matter of convenience. The business to be transacted at these latter two kinds of meetings must be specified in each notice of special meeting, or come within the subject justifying the convening of each emergency meeting, respectively. Thus, if public comments are permitted by an agency at any special or emergency meeting, they must be related directly and specifically to the business stated in the notice of such special meeting, or to the subject of the emergency, as the case may be.


With respect to regular meetings, 1-21 does not prescribe what items must be included on agendas. It requires, however, an affirmative two-thirds vote of the agency members present and voting in order to consider and act upon any subsequent business not set forth on a particular agenda. Consequently, it is the Commission's opinion that the General Assembly intended to grant public agencies great flexibility in determining the business to be transacted at their regular meetings. This conclusion is further supported by the general statutory scheme of 1-21, which provides more precise notice and minutes burdens as a prerequisite for convening those categories of meetings that require leas advance public notice


Therefore, it is the Commission's opinion that if any public agency wishes to permit public participation at its regular meetings, it may do so in compliance with 1-21 by limiting such participation to the items of business listed specifically on its agendas. In addition, if an agency wishes to set aside a segment of its regular meetings for public comments, it may do so by otherwise meeting the requirements of 1-21. In this regard, it is the Commission's opinion that any one of the following procedures would be satisfactory. Establishing:


1. An agenda item for new or subsequent business. The agency may then consider and act upon public comments, provided that two-thirds of the agency's membership present and voting so approve.




2. A rule or regulation, requiring as a pre-condition for public comments, that the subject be submitted in advance of a particular meeting for approval and inclusion on the agenda for that meeting.


3. An agenda item for public comments. The agency may then receive comments concerning any matter, but may not consider or act upon the subject of such comments unless it was set forth specifically on the agenda, or unless the agency otherwise complies with the subsequent business provisions of 1-21. Nothing, however, would preclude the agency from considering or acting upon the subject matter of such comments at a future meeting.


The Commission cautions that none of the procedures described above should be used as a device to knowingly disguise or conceal agency business from public scrutiny. Important issues raised at any meeting should hot be disposed of without adequate notice of their pendency unless absolutely necessary for the proper functioning of the agency. In this respect, it is the Commission's opinion that procedure number 3 offers the best combination of flexibility and notice within the framework of public participation. If each agency were to implement the policy considerations underlying that procedure in a reasoned fashion under the circumstances presented to it, the Commission believes that both the letter and spirit of the Freedom of Information Act will be fulfilled.





                                                                                            By Order of the Freedom of
                                                                                            Information Commission


                                                                                            Helen M. Loy, Chairman of
                                                                                            of the Freedom of Information

Date _December 13, 1978__



Charlene G. Arnold, Clerk