FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
John Simonetti and Hawkstone Associates,
Complainant
against Docket #FIC 92-155
Oxford Planning and Zoning Commission,
Respondent January 19, 1993
The above-captioned matter was heard as a contested case on December 4, 1992, 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 filed May 14, 1992, the complainant appealed to the Commission, alleging that the respondent violated the Freedom of Information ("FOI") Act in connection with an executive session convened at its May 7, 1992 meeting.
3. Specifically, the complainant alleges that the FOI Act was violated because:
a. the complainant was not notified;
b. no litigation was pending;
c. the complainant was not permitted to attend the executive session; and
d. the respondent did not maintain minutes of the executive session.
4. It is found that the respondent held a meeting on May 7, 1992.
5. It is found that the agenda for the May 7 meeting called for an executive session on the subject of "Hawkstone Litigation Pending."
Docket #FIC 92-155 Page 2
6. It is found that the respondent voted five to one, with two members abstaining, to convene in executive session for strategy and negotiation with respect to pending litigation.
7. It is found that the respondent on March 5, 1992 had issued an order to the complainant to remedy conditions found to be in violation of an excavation permit.
8. It is found that the respondent's order informed the complainant that, unless he corrected or abated the conditions, the Town of Oxford would proceed with an enforcement action against him pursuant to 8-12, G.S.
9. It is found that the complainant did not correct or abate the conditions to the satisfaction of the respondent.
10. It is found that the respondent met on May 7 to discuss ongoing negotiations with the complainant, and to discuss the prospects of litigation to enforce the respondent's legal rights.
11. It is found that the respondent as a result of its May 7 meeting instructed the town attorney to commence suit in Superior Court against the complainant, service of which was made on or about June 22, 1992.
12. The complainant maintains that the executive session was improper because no service of suit had been made at the time of the May 7 meeting, and because the complainant sought to avoid litigation.
13. Section 1-18a(h), G.S., provides in relevant part:
"Pending litigation" means ... (3) the agency's consideration of action to enforce or implement legal relief or a legal right.
14. It is concluded that the May 7 executive session was convened for a proper purpose.
15. The complainant also maintains that he was improperly excluded from the executive session when he had pertinent testimony and opinion to present, and that the respondent demonstrated partiality by inviting only the town planner and not the complainant.
16. Section 1-21g(a), G.S., provides in relevant part:
At an executive session of a public agency, attendance shall be limited to members of said body and persons invited by said body to present testimony or opinion pertinent to matters before said body .... [emphasis added]
Docket #FIC 92-155 Page 3
17. It is concluded that 1-21g(a), G.S., permits, but does not require, an agency to invite persons to give pertinent testimony or opinion in executive session.
18. It is therefore concluded that the respondent did not violate the FOI Act by declining to invite the complainant to the May 7 executive session.
19. The Commission additionally notes that it would have been contrary to the purpose of 1-18a(e), 1-18a(h), and 1-21(a), G.S., to require the respondent to invite the person against whom litigation was being evaluated to the May 7 executive session.
20. The complainant also maintains that the respondent failed to maintain minutes of its May 7 executive session.
21. It is found that the respondent maintained minutes of its May 7 meeting.
22. It is also found that the respondent's minutes disclose all persons who were in attendance at the May 7 executive session, in compliance with 1-21g(a), G.S.
23. It is concluded that the respondent did not violate the FOI Act by failing to keep a record of the actual discussion that occured in executive session.
24. Finally, with respect to the allegation described in paragraph 2.a, above, it is found that the complainant failed to allege a violation of the FOI Act, and did not pursue this allegation at the hearing on this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is dismissed.
Approved by Order of the Freedom of Information Commission at its special meeting of January 15, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 92-155 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 Simonetti
Hawkstone Associates
73 Center Street
Shelton, CT 06484
Oxford Planning and Zoning Commission
c/o Atty. John Ryan
Ryan, Tyma & Sousa
P.O. Box 648
Shelton, CT 06484
Debra L. Rembowski
Acting Clerk of the Commission