FIC1992-278

FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by Final Decision

Michael Vandenbroeck and Richard Woodburn,

Complainants

against Docket #FIC 92-278

Frank Taylor, Gerald Casiello, Benjamin Gordon, Constance Saulsbery, Bruce Given, Andrew Comcowich, Thomas Baptist and Redding Zoning Commission; and John Roche, James Smith, John Robie, Lillian Durden, Heloise Fahan and Redding Zoning Board of Appeals; and Michael N. LaVelle, Redding Town Counsel,

Respondents April 28, 1993

The above-captioned matter was heard as a contested case on March 11, 1993, at which time the complainants 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. By letter of complaint filed August 27, 1992 and postmarked August 26, 1992, the complainants appealed to the Commission, alleging that:

a. the respondents violated the Freedom of Information ("FOI") Act by meeting jointly on July 27, 1992 and convening in executive session for an improper purpose;

b. the respondents violated the FOI Act because the notice of the July 27, 1992 meeting was inadequate to inform the public of the purpose of the meeting; and

c. the respondent zoning commission violated the FOI Act by conducting an unnoticed meeting on July 27, 1992.

Docket #FIC 92-278 Page 2

3. The complainants also requested that the Commission invalidate any and all action taken by the respondents at their July 27 meeting or meetings, and impose a civil penalty against the respondents.

4. It is found that the respondents zoning commission and zoning board of appeals conducted a joint special meeting on July 27, 1992.

5. It is found that the purpose of the meeting was to negotiate a settlement to a pending suit brought by the zoning commission against the zoning board of appeals.

6. It is found that the notice of the July 27 meeting described the business to be transacted as discussion of pending litigation status.

7. It is found that the pending litigation between the zoning commission and the zoning board of appeals was, in the words of the complainants, a "hot, flaming controversy" that was locally publicized.

8. It is concluded under the circumstances of this case that the notice of the July 27 meeting reasonably apprised the public of the business to be transacted.

9. It is found that the respondents convened in executive session at the July 27 meeting for the stated purpose of strategy and negotiations with respect to the pending litigation.

10. The complainants maintain that the respondents impermissibly convened in executive session because they were adversaries in the litigation.

11. Sections 1-21(a) and 1-18a(e)(2), G.S., permit an agency to convene in executive session for the purpose of "strategy and negotiations with respect to pending claims or pending litigation to which the public agency ... is a party ...."

12. The Commission finds that while a litigation strategy session by an agency implies the exclusion of the agency's adversary, a negotiation session does not.

13. It is therefore concluded that the respondents did not violate 1-21(a) and 1-18a(e)(2), G.S., which permit the parties to pending litigation to conduct negotiations in executive session.

Docket #FIC 92-278 Page 3

14. The complainants also maintain that the zoning commission's minutes of the executive session should have included the names of all the zoning board of appeals members present, and that, likewise, the zoning board of appeals' minutes of the executive session should have included the names of all the zoning commission members present.

15. Section 1-21g(a), G.S. requires that the minutes of an executive session shall disclose all persons who are in attendance except job applicants who attend for the purpose of being interviewed by the agency.

16. It is found that each of the respondent agencies prepared minutes identifying who of its own members was present, and that the executive session was conducted jointly with the other agency.

17. It is found that the zoning commission's and the zoning board of appeals' minutes of their joint executive session cumulatively disclose all persons who were in attendance.

18. Although technically the minutes of each of the respondent agencies should have identified all individuals present during the executive session in question, under the circumstances of this case it is found that this omission does not constitute a violation of the FOI Act.

19. The complainants additionally maintain that the respondent zoning commission held an unnoticed meeting when it emerged from executive session into public session on July 27, 1992.

20. It is found, however, that the zoning commission conducted no business in public session outside of its settlement of the pending litigation with the zoning board of appeals, which, in light of the findings in paragraphs 6, 7 and 8, above, in this case was adequately described in the notice of meeting.

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 regular meeting of April 28, 1993.

Debra L. Rembowski

Acting Clerk of the Commission

Docket #FIC 92-278 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:

Michael Vandenbroeck and Richard Woodburn

c/o Atty. Nancy Burton

147 Cross Highway

Redding Ridge, CT 06876

c/o Atty. Michael N. La Velle

Pullman & Comley

850 Main Street

P.O. Box. 7006

Bridgeport, CT 06601-7006

Debra L. Rembowski

Acting Clerk of the Commission