FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by Final Decision
Edward A. Peruta,
Complainant
against Docket #FIC 93-121
Michael Egan, James Sweeny and Wethersfield Board of Tax Review,
Respondents December 22, 1993
The above-captioned matter was heard as a contested case on August 13 and September 29, 1993, at which time the complainant 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 April 29, 1993 the complainant appealed to the Commission, alleging that:
a. notice of the respondents' April 17, 1993 meeting did not arrive at his home until April 17, 1993;
b. no detailed published agenda was made available at the respondents' April 17, April 22 and April 23, 1993 public hearings;
c. on April 13, 1993 the respondents established rules solely to prevent the complainant from recording commercial business tax appeals;
d. on April 22, 1993 the respondents failed to have audio amplification installed; spoke inaudibly or allowed inaudible testimony; and allowed a member of the respondent to speak with his mouth blocked;
e. on numerous occassions the respondents convened in executive session without specific justification, in two cases resulting in penalty reductions against taxpayers;
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f. the respondents failed to maintain accurate and legal minutes that reflected (i) their votes to convene in executive session, (ii) their votes conducted in executive session, (iii) their votes to reconvene in public session, and (iv) their votes to adopt the rules referenced in paragraph 2.e, above;
g. the respondents failed to suspend meetings when a quorum was not present; and
h. one or two members of the respondent board of tax review left the respondents' meetings to meet across the hall to gather or view information, and discuss claims before the respondents.
3. The complainant also requested that the Commission declare all actions of the respondents null and void, and assess civil penalties against the individually named respondents.
4. It is found that the respondents conducted a series of special meetings for the purposes of hearing taxpayers' appeals on April 17, 22, 23, and 26, 1993.
5. It is found that the respondents filed notice of those four meetings with the town clerk on April 15, 1993.
6. It is found that the notice of those four meetings announced that the respondent board would meet on the four specified dates at specified times and places for the purpose of hearing re-scheduled appeals from March, new appeals, deliberations, and any other business to come before the respondents.
7. With respect to the allegation described in paragraph 2.a, above, the complainant maintains that the town tax assessor advised the town clerk that notices of meetings were not required to be mailed to the complainant pursuant to 1-21c, G.S., unless the request was made in writing, even though the town clerk had assured the complainant that no written request would be necessary.
8. It is found, however, that the day after the complainant's request, the town clerk promptly mailed him all notices of meetings which he requested; and, under the facts of this case, the Commission in its discretion declines to make any findings with respect to any advice that may have been given to one town official by another.
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9. With respect to the allegation described in paragraph 2.b, above, the complainant maintains that the notices of the April 17, 22, 23 and 26 special meetings failed to adequately state the business to be transacted, because the notices did not list the specific taxpayer appeals to be heard.
10. Section 12-110, G.S., requires the boards of tax review of every town to meet at least three times, and to give notice of the time and place of the meetings at least ten days before the first meeting.
11. Section 12-111, G.S., provides in relevant part:
At such meeting [pursuant to 12-110] any person ... claiming to be aggrieved by the doings of the assessors of such town may appeal therefrom to such board of tax review ....
12. The respondents maintain that, as provided by 12-111, G.S., they accept taxpayer appeals right up to the time of the meeting, and so could not list every taxpayer appeal that would be heard.
13. It is found that the respondents' notice of the four meetings puts any interested citizen on notice that the respondents will be hearing taxpayer appeals.
14. It is also found that the respondent board was required by the state office of policy and management to complete its duties regarding the above-referenced appeals and file a completed grand list by April 30, 1993.
15. It is also found that the respondents maintain, but do not post, an ongoing list of the specific taxpayer appeals to be heard.
16. It is therefore found that any individual who had an interest in a specific taxpayer appeal would have notice of the dates at which all appeals would be heard, and could determine through inquiry of the respondents whether a specific taxpayer's appeal had been scheduled for a specific day.
17. It is concluded that to read 1-21(a), G.S., to require the respondents to list 24 hours in advance the only taxpayer appeals to be heard at such meeting, and to restrict the meeting to hearing such prior-listed appeals, would create an unnecessary conflict with the provisions of 12-110 and 12-111, G.S.
18. It is therefore concluded that the respondents did not violate 1-21(a), G.S., by failing to list every taxpayer appeal to be heard at the meetings in question.
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19. With respect to the allegation described in paragraph 2.c., above, the complainant maintains that the rules adopted by the respondents regarding recording of their meetings were in violation of 1-21a, G.S.
20. Section 1-21a, G.S., provides in relevant part:
(a) At any meeting of a public agency which is open to the public ... proceedings of such public agency may be recorded, photographed, broadcast or recorded for broadcast, subject to such rules as such public agency may have prescribed prior to such meeting ....
(b) Any such public agency may adopt rules governing such recording, photography or the use of such broadcasting equipment for radio and television stations but, in the absence of the adoption of such rules and regulations by such public agency prior to the meeting, such recording, photography or the use of such radio and television equipment shall be permitted as provided in subsection (a).
21. It is found that the respondents adopted rules governing recording, photography and the use of broadcasting equipment on April 13, 1993.
22. The complainant maintains that the rules were not posted before he appeared at the April 22, 1993 meeting to record it.
23. It is concluded that 1-21a, G.S., requires that the rules be adopted before any meeting at which they are applied, but does not require that the rules be posted in the room where the meeting takes place.
24. The complainant further maintains that the rules require him to sign in with his name, address and telephone number; require him to remain ten feet from the hearing table; require him to leave the hearing room and shut off and/or remove from the hearing room all recording devices when the respondents convene in executive session; and require him to remain quiet and stationary while the respondents are in session.
25. Section 1-21(a), G.S., provides in relevant part:
No member of the public shall be required, as a condition to attendance at a meeting of any [public agency], to register his name, or furnish other information, or complete a questionnaire or otherwise fulfill any condition precedent to his attendance.
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26. It is found that the right to videotape a meeting of a public agency pursuant to 1-21a, G.S., is inseparable from the right to attend the meeting, and is comparable to the implicit rights to hear what transpires and to take notes.
27. It is concluded that requiring individuals who intend to videotape the respondents' proceedings to sign in with their
names, addresses and phone numbers is therefore a condition precedent to attendance.
28. It is therefore concluded that the respondents violated 1-21(a) and 1-21a, G.S., by adopting rules requiring persons who intend to videotape a meeting to sign in with their names, addresses and telephone numbers.
29. Section 1-21h, G.S., provides in relevant part:
In the event that any meeting of a public agency is interrupted by any person or group of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are wilfully interrupting the meetings, the members of the agency conducting the meeting may order the meeting room cleared and continue in session.
30. It is concluded that 1-21h, G.S., establishes the statutory limits on disorderly behavior by the public at a public meeting.
31. It is therefore concluded that the respondents may not seek to impose significantly more stringent limits on persons who videotape meetings by requiring them to remain "quiet and stationary," particularly where such requirements have not been shown to be reasonably related to the act of videotaping the meeting.
32. It is therefore concluded that the respondents violated 1-21h and 1-21a, G.S., by adopting excessively strict rules governing the conduct of people videotaping their meetings.
33. It is found that the remainder of the rules described in paragraph 24, above, did not interfere with the complainant's ability to record those portions of the respondents' meeting that were open to the public, and were not otherwise violative of the open meetings requirements of the FOI Act.
34. The complainant also maintains that the rules require him to leave the room when the respondents convene in executive session for the purpose of considering a taxpayer affidavit that asserts that the taxpayer will be furnishing data that is confidential.
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35. It is found that the rule described in paragraph 34, above, is actually a rule governing the attendance of all persons, and not a rule specific to the recording of the respondents' meetings.
36. It is also found that the respondents did convene in executive session for the purpose of considering such affidavits.
37. It is found that the respondents failed to prove that such affidavits themselves contain any confidential information that might permit the convening of an executive session pursuant to 1-18a(e)(5) and 1-21(a), G.S.
38. It is therefore concluded that the respondents violated 1-21(a), G.S., by convening in executive session for an impermissible purpose.
39. With respect to the allegation described in paragraph 2.d, above, it is found that the complainant's need for audio amplification relates to his own hearing impairment.
40. It is also found that the open meeting requirements of 1-21, G.S., do not make special provisions for hearing impaired individuals.
41. Under the circumstances of this case, it is found that the respondents did not violate 1-21, G.S., by failing to provide special audio amplification at the meetings in question.
42. It is also found that a member of the respondent board of tax review at the April 28, 1993 meeting covered his lips and spoke about a case that the board was then considering such that only the other member of the respondent board could hear him.
43. It is concluded that the respondents violated 1-21(a), G.S., by conducting communication on matters properly before them that was not audible to the public at an otherwise open meeting.
44. With respect to the allegation described in paragraph 2.e, above, it is found that the respondents convened in executive session at their April 22, 23 and 26, 1993 meetings to review financial or commercial information submitted in confidence by the taxpayer to the respondents and not required by statute, all within the meaning of 1-19(b)(5), G.S.
45. It is also found that the respondents convened in executive session at their April 22, 23 and 26, 1993 meetings to review confidential data pertaining to rental income and operating expenses.
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46. Section 12-63c, G.S., provides in pertinent part that any information relating to actual rental and rental-related income and operating expenses not already a matter of public record which is submitted or made available to the tax assessor shall not be subject to the provisions of 1-19, G.S.
47. It is concluded that the respondents did not violate 1-21, G.S., by convening in executive session pursuant to the reason provided in 1-18a(e)(5), G.S., to discuss records or the information contained therein that are exempt from disclosure.
48. It is also found that the respondents convened in executive session at their April 23, 1993 meeting to discuss the degree or percentage of reduction in the penalties to be assessed against certain commercial taxpayers.
49. It is found that the respondents reduced the degree or percentage of certain tax penalties assessed as a matter of general fairness and good public policy, and not based upon confidential financial information.
50. It is found that the respondents failed to prove that discussion of the issue of the degree or percentage of the penalty reduction would have resulted in the disclosure of confidential financial or commercial information.
51. It is therefore concluded that the respondents violated 1-21(a), G.S., by convening in executive session to discuss matters not permitted by 1-18a(e)(5), G.S.
52. With respect to the allegation described in paragraph 2.f(i), above, it is found that the minutes of the respondents' April 22, 23 and 26 meetings reflect executive sessions, but do not contain a record of the votes to convene in executive session.
53. It is concluded that the respondents violated 1-21(a), G.S., by failing to explicitly record their votes to convene in executive session.
54. With respect to the allegation described in paragraph 2.f(ii), above, it is found that the respondents did not conduct votes while in executive session.
55. With respect to the allegation described in paragraph 2.f(iii), above, it is concluded that the FOI Act, while requiring a vote to convene in executive sesion, does not require the respondents to vote to reconvene in public session.
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56. With respect to the allegation described in paragraph 2.f(iv), above, it is found that the minutes of the respondents' April 13, 1993 meeting reflect the votes of the two members present concerning the respondents' rules.
57. With respect to the allegation described in paragraph 2.g, above, it is concluded that nothing in the FOI Act requires the respondent board to formally suspend its meetings if a quorum of the board is temporarily not present.
58. With respect to the allegation described in paragraph 2.h, above, it is found that members of the respondent board left the hearing room to obtain information about properties comparable to the property that was the subject of the appeal, and did not confer with each other or otherwise meet outside of the hearing room concerning the appeals.
59. The Commission in its discretion declines to assess civil penalties against the respondents.
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 1-21(a), G.S.
2. Those portions of the respondents' rules concluded herein to be in violation of the FOI Act are declared null and void.
Approved by Order of the Freedom of Information Commission at its regular meeting of December 22, 1993.
Elizabeth A. Leifert
Acting Clerk of the Commission
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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:
Mr. Edward A. Peruta
P.O. Box 307
Rocky Hill, CT 06067
Michael Egan, James Sweeny and Wethersfield Board of Tax Review
c/o Ann E. Lynch, Esq.
Updike, Kelly & Spellacy, P. C.
One State Street
Hartford, CT 06103
Elizabeth A. Leifert
Acting Clerk of the Commission