FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
August Miller,
Complainant
against Docket #FIC 90-492
Meriden Zoning Board of Appeals,
Respondent July 10, 1991
The above-captioned matter was heard as a contested case on April 4, 1991, 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 December 13, 1990 and filed with the Commission on December 17, 1990, the complainant appealed to the Commission, alleging that the respondent failed to maintain minutes of a certain meeting on February 7, 1989.
3. It is found that the respondent on February 8, 1989 conducted a public hearing on an appeal the complainant had taken to the board from a cease and desist order issued by the zoning enforcement officer.
4. It is found that the city planner testified before the respondent board at its hearing.
5. It is also found that on the day before the board's hearing the city planner gave one member of the respondent, Robert LaRosa, a preview of his testimony.
6. It is found that the board had, approximately one year earlier in 1988, granted the complainant's appeal from an identical order of the zoning enforcement officer.
7. It is also found that the board, after its February 8, 1989 hearing, denied the complainant's appeal, with only LaRosa changing his vote from the 1988 decision.
8. The complainant maintains that the communication referenced in paragraph 5, above, caused LaRosa to change his vote and therefore was a meeting within the meaning of 1-18a(b), G.S.
Docket #FIC 90-492 Page 2
9. It is found, however, that the communication described in paragraph 5, above, although it may have influenced an individual board member, was not discussed with other board members before the February 8 public hearing and was not a step in the respondent's consideration of and action on the complainant's appeal.
10. It is concluded that the February 7 communication was not a meeting of the respondent within the meaning of 1-18a(b), G.S.
11. It is found that the complainant by letter dated November 15, 1990 requested the minutes and any records of the February 7 communication.
12. It is found that the respondent has no record of the February 7 communication.
13. It is concluded that, since the February 7 communication was not a meeting within the meaning of 1-18a(b), G.S., the respondent was not obligated under 1-19(a), G.S., to make, keep and maintain a record of that communication, and did not violate the FOI Act by failing to do so.
14. At the hearing, the respondent requested that a civil penalty be assessed against the complainant pursuant to 1-21i(b), G.S., for bringing an appeal frivolously, without reasonable grounds, and solely for the purpose of harassing the respondent.
15. Specifically, the respondent maintains that the complainant has brought a similarly harassing complainant in Docket #FIC 90-445; that the complainant presented no evidence that the February 7 communication was a meeting; that a communication between a zoning enforcement officer and a member of the zoning board of appeals is standard operating procedure; that the complainant waited two years before complaining about the Febuary 7 communication; and that the complainant has already prevailed on the substance of his zoning appeal in Superior Court and thus has nothing of substance to gain from this complaint.
16. It is found that the complainant's allegation in his complaint to the Commission that a communication between a member of the respondent and one of its staff was a meeting for which the respondent was required to keep minutes is insufficient on its face to state a violation of the FOI Act, and that the complainant's evidence and argument on his complaint were devoid of merit.
Docket #FIC 90-492 Page 3
17. It is concluded therefore that the complaint in this matter was brought frivolously.
18. The complainant maintains that his appeal was not without reasonable grounds because a member of the respondent made a decision based on the February 7 communication, and he is entitled to a record of that communication.
19. The Commission takes administrative notice that a communication between a member of a board or commission and one of its staff concerning matters before the board or commission is a common occurrence and is not, in itself, reasonable grounds for a conclusion that an illegal meeting has occurred.
20. It is also found that the transcript of the February 8 public hearing, which is the basis for the complainant's appeal in this case, does not in itself create reasonable grounds for a conclusion that any illegal meeting had occurred.
21. It is further found that the complainant's belief that every communication between a board member and a staff member is subject to FOI Act requirements is not objectively reasonable.
22. It is therefore concluded that the complaint in this matter was brought without reasonable grounds.
23. The complainant maintains that his appeal is not for the purpose of harassing the respondent because he has been denied information about the basis of a board decision, because he only recently discovered the reference to the February 7 communication in the transcript of the February 8 public hearing, and because he is assembling a federal case for deprivation of civil rights.
24. It is found that the transcript of the February 8 public hearing indicates the basis for the respondent's decision and the City Planner's argument concerning the complainant's zoning appeal.
25. It is therefore found that the complainant was not denied information about the respondent's deliberative process.
26. It is also found that the complainant and his counsel were present at the February 8 public hearing, and that the transcript of that public hearing was part of the record of the complainant's appeal to Superior Court from the respondent's decision.
27. The Commission therefore rejects as not credible the complainant's contention that he only recently discovered the reference to the February 7 communication.
Docket #FIC 90-492 Page 4
28. The Commission takes administrative notice of the Memorandum of Decision dated November 19, 1990 in Docket No. CV 89-233157 S, August Miller III vs. Meriden Zoning Board of Appeals, Superior Court, J.D. of New Haven at Meriden (Burns, J.).
29. It is found that complainant prevailed in his appeal in Superior Court, and that the respondent took no further appeal from that decision.
30. It is also found, however, that the pursuit of future litigation against the respondent was one reason the complainant brought this appeal.
31. It is therefore concluded that the complaint in this matter was brought principally, but not solely, for the purpose of harassing the respondent.
32. Although the conclusion in paragraph 31, above, precludes the imposition of a civil penalty against the complainant pursuant to 1-21i(b), G.S., the Commission notes that similar complaints by the complainant may result in the applicability of 52-568(b), G.S.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of July 10, 1991.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 90-492 Page 5
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:
August Miller
209 Capitol Avenue
Meriden, CT 06450
Meriden Zoning Board of Appeals
c/o Christopher P. Hankins, Esq.
City of Meriden
142 East Main Street
Meriden, CT 06450
Debra L. Rembowski
Acting Clerk of the Commission