FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

 

In the Matter of a Complaint by                        FINAL DECISION

 

Daniel R. Waleski,

 

                        Complainant

 

            against                          Docket #FIC 90-91

 

Board of Apportionment and Taxation of the City of Derby,

 

                        Respondent                  February 27, 1991

 

            The above-captioned matter was heard as a contested case on June 7, 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 of complaint dated March 7, 1990 and filed with the Commission on March 9, 1990, the complainant appealed to the Commission, alleging that the respondent convened in executive session for an improper purpose at its March 6, 1990 special meeting, and requesting that the actions taken at the meeting be declared null and void.

 

            3.         It is found that the respondent convened in executive session at its March 6, 1990 special meeting for the stated purpose of discussion of legal matters.

 

            4.         It is found that the respondent then reconvened in public session and approved an agreement negotiated in executive session between the mayor and itself regarding the purchase of a road grader.

 

            5.         The respondent maintains that the executive session was permissibly convened for the purpose of strategy and negotiation with respect to pending claims and litigation within the meaning of 1-18a(e)(2), G.S.

 

            6.         It is found that the underlying dispute between the mayor and the respondent involved conflicting claims over the course of several months about who had the authority to waive bidding on the road grader purchase.

 

Docket #FIC 90-91                             Page 2

 

            7.         It is found that the respondent asserted that it had the legal right, pursuant to section 66 of the city charter, to grant any bid waiver for the purchase of the road grader, and that the mayor had violated the charter by failing to request a bid waiver from the respondent.

 

            8.         It is found that the respondent had received a legal opinion from the city's corporation counsel with respect to its asserted legal right as described in paragraph 7, above.  The respondent disputed the opinion, but the mayor agreed with it.

 

            9.         It is found that solicitation of a second legal opinion from an outside attorney and legal action were options considered by the respondent to resolve its dispute with the mayor.

 

            10.       It is found that the agreement referenced in paragraph 4, above, was intended to settle the dispute between the parties, define their future obligations, and avoid litigation between them.

 

            11.       It is concluded that the respondent's claim with respect to its bid waiver authority was a pending claim to which it was a party within the meaning of 1-18a(e)(2), G.S.

 

            12.       It is also concluded that the respondent's negotiation of the agreement with the mayor was negotiation of its pending claim within the meaning of 1-18a(e)(2), G.S.

 

            13.       It is therefore concluded that the respondent did not violate 1-21(a) and 1-18a(e)(2), G.S., by convening in executive session to negotiate a settlement of its pending claim with the mayor.

 

            14.       It is also found, however, that the respondent did not clearly state the reason, as defined in 1-18a(e)(2), G.S., for its executive session, as required by 1-21(a), G.S.

 

            15.       It is therefore concluded that the respondent violated 1-21(a), G.S., by failing to clearly state the reason for its executive session.

 

 

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

 

Docket #FIC 90-91                             Page 3

 

            1.         Henceforth the respondent shall strictly comply with the requirements of 1-21(a), G.S., regarding the statement of reasons for convening in executive session.

 

Approved by order of the Freedom of Information Commission at its regular meeting of February 27, 1991.

 

                                                         

                                    Tina C. Frappier

                                    Acting Clerk of the Commission

 

Docket #FIC 90-91                             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:

DANIEL R. WALESKI

34 Elm Street

Derby, CT 06418

 

BOARD OF APPORTIONMENT AND TAXATION OF THE CITY OF DERBY

35 Fifth Street

Derby, CT 06418

 

                                                         

                                    Tina C. Frappier

                                    Acting Clerk of the Commission