FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Susann Viafora and Norwich Bulletin,
Complainants
against Docket #FIC 93-190
Preston Board of Selectmen, Ledyard Town Council and North Stonington Board of Selectmen,
Respondents August 11, 1993
The above-captioned matter was heard as a contested case on August 9, 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 by telephone facsimile on August 6, 1993, the complainants appealed to the Commission, alleging that the respondents had announced a decision to meet in executive session on August 10, 1993, and that the respondent Ledyard Town Council met impermissibly in executive session on August 4, 1993.
3. In their letter of complaint, the complainants indicated that they sought to prevent the respondents from illegally convening in executive session, and requested that the Commission schedule a hearing on this matter before August 10, 1993, which request for a hearing the Commission granted.
4. It is found that the Mashantucket Pequot Tribe (the "Tribe") has pending before the Bureau of Indian Affairs, U.S. Department of the Interior (the "BIA"), a request to place certain properties in trust.
5. It is found that the respondents filed with the Eastern Area Office of BIA on April 23, 1993 a statement of opposition to the Tribe's request, and with the central BIA office on July 15, 1993 a request for rejection of the request.
6. It is found that on July 29, 1993 the Tribe offered the towns of North Stonington, Ledyard and Preston $5 million each over five years if the towns agreed not to oppose the tribe's pending request to BIA.
Docket #FIC 93-190 Page 2
7. It is found that on August 4, 1993 the respondent Ledyard Town Council met in executive session to discuss the Tribe's offer.
8. It is found that the stated purpose of the executive session was strategy and negotiation with respect to pending litigation.
9. It is found that the respondent Ledyard Town Council discussed in executive session their possible responses to the Tribe's July 29, 1993 offer.
10. It is found that the respondents scheduled a joint meeting for August 10, 1993 for the stated purpose of discussing pending litigation and strategies regarding the Tribe's land acquisition.
11. The respondents maintain that the August 4, 1993 and the proposed August 10, 1993 executive sessions are permissible pursuant to 1-18a(e)(2), 1-18a(g) and 1-18a(h), G.S.
12. Section 1-18a(e)(2), G.S., permits 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 agency is a party.
13. Section 1-18a(g), G.S., defines "pending claim" to mean:
a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action in an appropriate forum if such relief or right is not granted.
14. It is found that the Tribe's July 29, 1993 offer to the towns is not a demand for legal relief, an assertion of a legal right, or a statement of an intention to institute an action.
15. Section 1-18a(h), G.S., defines "pending litigation" to mean:
(1) a written notice to an agency which sets forth a demand for legal relief or which asserts a legal right stating the intention to institute an action before a court if such relief or right is not granted by the agency; (2) the service of a complaint against an agency returnable to a court which seeks to enforce or implement legal relief or a legal right; or (3) the agency's consideration of action to enforce or implement legal relief or a legal right.
Docket #FIC 93-190 Page 3
16. The respondents maintain that their proposed executive session is permissible pursuant to 1-18a(e)(2), G.S., because they are currently parties to litigation with the Tribe before BIA.
17. It is found that the respondents statements in opposition to the Tribe's application were in response to BIA's invitation for comments on the proposed acquisitions.
18. It is found that BIA has announced no intention to conduct any hearing on the Tribe's application.
19. It is also found that the respondents failed to prove that they have any legal rights to participate, beyond the submission of comments, as a party to the Tribe's pending application to BIA.
20. It is concluded that the respondents are not currently parties to pending litigation within the meaning of 1-18a(e)(2), G.S.
21. The respondents also maintain that they are parties to pending litigation because they may be aggrieved by BIA's action on the Tribe's application, at which point they could take an administrative appeal of BIA's action.
22. Specifically, the respondents point out that should they take an administrative appeal of BIA's decision, they would then have the right to submit evidence and legal argument to the Interior Board of Indian Appeals, a body of administrative law judges.
23. It is concluded, however, that the possibility that the respondents may become parties to an administrative appeal in the future does not make them parties before BIA has issued any decision on the Tribe's application.
24. The respondents also maintain that their executive sessions are permissible pursuant to 1-18a(e)(2), G.S., because they are considering action to enforce or implement legal relief or a legal right within the meaning of 1-18a(h)(3), G.S.
25. It is found that the substantial evidence in this matter indicates that the respondents are seeking to avoid litigation with the Tribe.
26. It is also found that the respondents failed to prove that they are actually considering any action to enforce or implement legal relief or a legal right.
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The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. Henceforth the respondents shall strictly comply with the requirements of 1-18a(e)(2), 1-18a(g), and 1-18a(h), G.S.
Approved by Order of the Freedom of Information Commission at its regular meeting of August 11, 1993.
Debra L. Rembowski
Acting Clerk of the Commission
Docket #FIC 93-190 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:
Susann Viafora and Norwich Bulletin
66 Franklin Street
Norwich, CT 06360
Preston Board of Selectmen
c/o Atty. Frank A. Manfredi
Cotter, Greenfield and Manfredi, P. C.
P. O. Box 6002
Yantic, CT 06389
Ledyard Town Council
c/o Atty. Peter Bartinik
100 Fort Hill Road
Groton, CT 06340
North Stonington Board of Selectmen
c/o Town Hall
P. O. Box 91
North Stonington, CT 06359
Debra L. Rembowski
Acting Clerk of the Commission