FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
John M. Hoffer,
Complainant
against Docket #FIC 90-227
Oxford Planning and Zoning Commission,
Respondent January 23, 1991
The
above-captioned matter was heard as a contested case on October 4, 1990, at
which time the complainant and the respondent 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 respondent is a public agency within the
meaning of 1-18a(a), G.S.
2. By letter filed with this Commission on June
18, 1990, the complainant alleged that the respondent conducted an improper
executive session on June 7, 1990 by failing to adequately identify the topic
to be considered, by failing to permit the complainant who was the subject of
the session to require an open meeting pursuant to 1-18a(e)(1), G.S., and
by permitting attendance in executive session by non-members of the respondent.
3. It is found that at the respondent's June 7,
1990 meeting, the following people were in attendance at its executive session:
chairperson Nancy Clark; secretaries Wayne Johnson and Louise DePalma; members
Carleton Atwater, Steven Daninhirsch, Robert Wilcock, James Leach (alternate),
and John Hoffer (complainant); as well as non-members Hiram Peck (town planner)
and Chris Jaran (second selectman).
4. It is found that the agenda for the June 7
regular meeting indicates "Executive Session" for item #3 under
"Other Business" without any other reference to the topic of that
executive session; additionally, no
statement of the reason for the executive session was given prior to the
respondent convening in the executive session.
5. It is concluded, therefore, that the
respondent violated 1-21(a), G.S. by failing to adequately set forth in
Docket #FIC 90-227 Page 2
its agenda the business to be transacted in
executive session and by failing to state a proper purpose for executive
session within the meaning of 1-18a(e), G.S.
6. The respondent claims that the purpose of
the executive session was primarily to discuss the inability of the zoning
enforcement officer and other staff members to effectively perform their jobs
rather than to focus the discussion on the complainant.
7. It is found, however, that in executive
session, those present discussed staff members' complaints that the
complainant's actions and behavior caused them job difficulties.
8. It is found that the complainant objected to
the fact that the discussion was being held in executive session and that
non-members of the respondent were allowed in executive session.
9. It is found that the respondent chose to
continue its executive session after a short break to research the Freedom of
Information Act.
10. It is also found that at no time prior to
the meeting in question did the respondent give the complainant the opportunity
to require that the discussion concerning his actions be held in public
session.
11. It is therefore concluded that the
respondent violated 1-18a(e)(1), G.S. by failing to notify the complainant
that he would be discussed in executive session thereby affording him the opportunity
to require the portions of the discussion concerning his actions to be held in
public session.
12. It is found that the town planner and the
second selectman were invited into the executive session to present testimony
or opinion pertinent to matters before the respondent pursuant to 1-21g,
G.S.
13. It is found that the respondent permitted
the town planner and second selectman to remain in the executive session to
observe each other's testimony.
14. The respondent claims that it wanted to hear
the town planner's and second selectman's opinions concerning the discussion
taking place in the executive session in addition to other testimony they might
offer, and therefore, the respondent asserts, the two non-members were entitled
to remain to listen at the session.
15.
It is found that 1-21g(a), G.S. limits
attendance by non-members of the respondent to the period necessary to present
their testimony or opinion.
Docket #FIC 90-227 Page 3
16. It is found that the respondent failed to
prove the attendance by non-members was required for the entire time of their
presence.
17. It is concluded that the respondent violated
1-21g(a), G.S. by permitting the extended attendances of the town planner
and the second selectman at its executive session.
18. This Commission notes that if the respondent
has any reason whatsoever for wishing a non-member to witness any discussion
that they schedule to take place in an executive session, an appropriate
measure is to conduct an open session rather than an executive session.
The
following order by the Commission is hereby recommended on the basis of the
record concerning the above-captioned complaint.
1. For its next regularly scheduled meeting,
the respondent shall place on its agenda, as a topic for public discussion, the
matters for which it convened an executive session on June 7, 1990 and
described in the findings, above.
2. The Commission reminds the respondent that
the Commission staff and attorneys are available by telephone to answer questions
free of charge concerning the Freedom of Information Act on Monday through
Friday, during regular office hours.
Approved by order of the Freedom of Information
Commission at its special meeting of January 23, 1991.
Tina
C. Frappier
Acting
Clerk of the Commission
Docket #FIC 90-227 Page 4
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:
JOHN M. HOFFER
118 Chestnut Tree Hill Ext.
Oxford, CT 06483
OXFORD PLANNING AND ZONING COMMISSION
c/o Gerald M. Gallant, Esq.
Adelman & Gallant
144 Oxford Road
Oxford, CT 06483
Tina
C. Frappier
Acting
Clerk of the Commission