FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Carl J. Lupoli,

Complainant

against Docket #FIC 88-428

Chairman Louis Affinito, Hamden Zoning Board of Appeals, and, Hamden Zoning Board of Appeals,

Respondents July 12, 1989

The above-captioned matter was heard as a contested case on January 6, 1989, 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 §1-18a(a), G.S.

2. By letter of complaint dated October 21, 1988 and received by the Commission on October 25, 1988, as amended by letter of complaint dated December 2, 1988 and received by the Commission on December 5, 1988, the complainant appealed to the Commission, alleging that the respondents excluded him from a telephone vote conducted prior to the respondent board's October 20, 1988 meeting, alleging that the respondent chairman had denied him a copy of a certain legal opinion, requesting that civil penalties be imposed against the respondents, and requesting that the vote conducted by telephone be declared null and void.

3. It is found that at its August, 1988 meeting the respondent board denied a certain application for a variance submitted by Anthony Raccio.

4. It is found that Raccio submitted a second application which was presented but not heard at the respondent board's September 15, 1988 meeting because the complainant requested a legal opinion from the board's counsel as to whether the application could be heard after a similar application had been denied, as described in paragraph 3, above.

Docket #FIC 88-428 Page 2

5. It is found that the respondent chairman obtained a legal opinion from the board's counsel on or about September 19, 1988, indicating that the board had discretion whether or not to hear the second application.

6. It is found that the respondent chairman subsequently polled by telephone three of the five members of the respondent board and obtained their assent to hear Raccio's second application at the board's October 20, 1988 meeting.

7. It is found that the respondent chairman subsequently arranged for Raccio's second application to be put on the agenda for the respondent board's October 20, 1988 meeting.

8. It is concluded that the telephone poll described in paragraph 6, above, was a communication by and to a quorum of the respondent board by means of electronic equipment, to discuss or act upon a matter over which the board had supervision, control, jurisdiction or advisory power, and was therefore a meeting within the meaning of §1-18a(b), G.S.

9. It is also concluded that the assent of the three board members to hear Raccio's second application, as described in paragraph 6, above, constituted a vote by those members upon an issue before the board, within the meaning of §1-21(a), G.S.

10. It is found that the respondent chairman did not include the complainant in the telephone poll because the chairman knew that the complainant opposed hearing the second application.

11. It is also found that the respondents offered no evidence to prove that the complainant or the public were given any notice of the telephone poll described in paragraph 6, above.

12. It is therefore concluded that the telephone poll described in paragraph 6, above, was a secret or unnoticed meeting within the meaning of §§1-18a(b) and 1-21i(b), G.S.

13. It is found that the respondent board held a regularly scheduled meeting on October 20, 1988, at which time the complainant learned of the secret or unnoticed meeting described in paragraphs 8 and 12, above.

14. It is therefore concluded that the respondents violated §1-21(a), G.S., by failing to give notice to the complainant and the public of the time, place and business to be transacted at the meeting described in paragraphs 8 and 12, above.

Docket #FIC 88-428 Page 3

15. Although the complainant's appeal from the actions of the respondents in conducting the telephone poll described in paragraph 6, above, was limited to the issue of his exclusion from that meeting and vote, the Commission notes that the open meeting requirements of §1-21(a), G.S., regarding public access to all meetings of public agencies and regarding the filing of minutes and a record of vote concerning all such meetings, are also applicable to a meeting and vote conducted by telephone, as described in paragraphs 8 and 9, above.

16. It is found that at the October 20, 1988 meeting the respondent board voted publicly to hear Raccio's second application, and also voted to grant that application.

17. Under the circumstances of this case, the Commission in its discretion declines to declare null and void the actions taken as a result of the respondents' telephone poll.

18. It is found that at the October 20, 1988 meeting the complainant asked the respondent chairman to provide him with a copy of the legal opinion described in paragraph 5, above.

19. It is found that the chairman did not have a copy of the opinion at the October 20, 1988 meeting, but made a copy available to the complainant at the office of the respondent board on October 21, 1988, and mailed a copy of the opinion to the complainant on or about October 24, 1988.

20. At the hearing, the complainant withdrew that portion of his complaint regarding the alleged denial of his request for the legal opinion.

21. Under the circumstances of this case, the Commission in its discretion declines to impose a civil penalty against the respondents.

22. The respondents moved to dismiss the complainant's appeal because Raccio had not been named as a party in this case.

23. It is found that the respondents' motion asserts no rights of the respondents.

24. It is concluded, in any event, that no legal rights, duties or privilegs of Raccio are determined in this case within the meaning of §1-21j-27, Regulations of Connecticut State Agencies.

25. The respondents' motion to dismiss is therefore denied.

Docket #FIC 88-428 Page 4

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

1. The respondents shall henceforth act in strict compliance with the requirements of §§1-18a(b) and 1-21(a) regarding meetings and votes conducted by telephone.

PURSUANT TO 4-180(c) C.G.S THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE F.O.I.C., OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.

THE PARTIES TO THIS CONTESTED CASE ARE:

CARL LUPOLI, c/o Albert I. Sheppard, Esquire, P.O. Box 5067, Hamden, CT 06518

CHAIRMAN LOUIS AFFINITO, HAMDEN ZONING BOARD OF APPEALS AND

HAMDEN ZONING BOARD OF APPEALS, c/o Steven Rolnick, Esquire, Office of the Town Attorney, 2372 Whitney Avenue, Hamden, CT 06518

Approved by order of the Freedom of Information Commission at its regular meeting of July 12, 1989.

Karen J. Haggett

Clerk of the Commission