FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Paulann H. Sheets,

Complainant,

against Docket #FIC 88-496

Town Council, Town Attorney, and Town Manager all of the Town of Groton,

Respondents June 28, 1989

The above-captioned matter was heard as a contested case on January 31, 1989 along with Docket #FIC 89-497, 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. At its November 22, 1988 regular meeting of the Committee of the Whole, the respondent town council convened in executive session.

3. In attendance at the executive session were the respondent town manager, the respondent town attorney James Brennan, and the following members of the respondent town council: Richard Dixon, Judith DuFlocq, Edward Eckelmeyer, Charles Kosloskey, Linda Krause, Robert Strohm, Jr., and Chaz Zezulka, III.

4. By letter dated December 21, 1988 and filed with the Commission on December 22, 1988, the complainant appealed to the Commission, requesting a null and void order and alleging:

a. the executive session was held for an improper purpose;

b. non-agenda items were discussed during the public session without two-thirds of the members present voting to take up those items;

c. and attendance in the executive session was not limited to members of the respondent town council.

Docket #FIC 88-496 Page Two

5. It is found that the respondent town council convened in executive session to discuss the strategy for pending litigation brought by one John Kelly against the Town of Groton's board of education and its members. Among the details discussed were indemnification of board of education members, related attorneys fees, and a related resolution already made by the board of education.

6. It is found that the respondent town council is not a party to the litigation it discussed in the executive session.

7. The respondents claim that the litigation could have significant financial ramifications for the town and that the respondent town council must be involved in certain aspects of planning the strategy for the lawsuit.

8. It is concluded, nonetheless, that the respondent town council violated §§1-18a(e)(2) and 1-21(a), G.S., by convening in executive session to discuss strategy for pending litigation to which it is not a party.

9. It is found that during the public session of the meeting in question, the respondent town council discussed meeting with local legislators, reappointment of the Groton week committee and the planning commission's request to use the council chambers.

10. It is found that these items were not listed on the agenda for the meeting or the referral list to which it refers.

11. It is found that the respondent town council's members did not vote to take up these items.

12. It is concluded, therefore, that the respondent town council violated §1-21(a), G.S., by discussing non-agenda topics at a regular meeting without first voting to do so.

13. It is found that the respondents town manager and town attorney were present throughout the executive session.

14. It is found that neither of those respondents is a member of the respondent town council.

15. It is found that the town attorney was presenting legal opinion throughout the executive session, but that the town manager gave no testimony or opinion to the respondent town council during the executive session.

Docket #FIC 88-496 Page Three

16. The respondents claim that the respondent town manager's presence in the executive session was necessary for him to stay fully informed and to act as a recording secretary.

17. It is concluded, nonetheless, that the respondent town council violated §1-21g, G.S., by allowing a non-member whose testimony was not necessary to present testimony or opinion to attend the executive session.

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

1. All actions resulting from the respondent council's executive session of November 22, 1988 are hereby declared null and void.

2. The respondents shall cause to be posted for thirty days at the Town of Groton's clerk's office a copy of the final decision in this matter.

3. The Commission reminds the respondents that repetition of the violations found in this matter could subject the respondent town council to consideration by the Commission of the imposition of civil penalties.

4. The Commission also notes that it is not the responsibility of the general public to oversee public agency meetings to assure compliance with the Freedom of Information Act. The responsibility of complying with the Act lies strictly with the public agency.

Docket #FIC 88-496 Page four

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:

PAULANN H. SHEETS, 87 Neptune Drive, Groton, CT 06340

PAULANN H. SHEETS, c/o Joseph E. Moukawsher, Esquire,

Moukawsher & Moukawsher, 333 Long Hill Road, P.O. Box

1032, Groton, CT 06340

TOWN COUNCIL, TOWN ATTORNEY AND TOWN MANAGER ALL OF THE

TOWN OF GROTON, c/o James F. Brennan, Esquire, P.O. Box

1591, Mariner Square, New London, CT 06320

Approved by order of the Freedom of Information Commission at its regular meeting of June 28, 1989.

Karen J. Haggett

Clerk of the Commission