FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
In the Matter of a Complaint by FINAL DECISION
Sydney M. Libby,
Complainant
against Docket #FIC 94-108
Middletown Department of Public Works,
Respondent January 11, 1995
The above-captioned matter was heard as a contested case on October 13, 1994, 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 April 5, 1994, the complainant appealed to the Commission, alleging that the respondent Middletown public works commission went into executive session on March 10, 1994 without proper notice, and that the director of public works refused to answer questions about the executive session, or to give the complainant the agenda or minutes of the executive session.
3. It is found that the respondent held a regular meeting on March 8, 1994.
4. It is found that the March 8, 1994 meeting is the meeting at issue in this complaint.
5. It is found that the respondent convened in executive session at the March 8, 1994 meeting so that the public works director could report to the public works commission on his inability to negotiate the purchase of a certain strip of land for a road, to discuss the value of the land as appraised and the price the commission would be willing to pay, and to discuss whether to proceed with a taking of the strip of land by eminent domain.
6. It is found that the respondent convened in executive session at the March 8, 1994 meeting for the stated purpose of "discussing the negotiations on acquisition of property for road purposes on Randolph Road."
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7. Section 1-21(a), G.S., provides in relevant part:
A public agency may hold an executive session as defined in subsection (e) of section 1-18a, upon an affirmative vote of two-thirds of the members of such body present and voting, taken at a public meeting and stating the reasons for such exective session, as defined in said section.
8. Section 1-18a(e)(4), G.S., defines one purpose for an executive session to be:
discussion of the selection of a site or the lease, sale or purchase of real estate by a political subdivision of the state when publicity regarding such site, lease, sale, purchase or construction would cause a likelihood of increased price until such time as all of the property has been acquired or all proceedings or transactions concerning same have been terminated or abandoned.
9. The complainant maintains that the respondent failed to state a proper purpose for the executive session within the meaning of 1-18a(e)(4) and 1-21(a), G.S., because the respondent did not state that publicity would cause a likelihood of increased price, and did not cite the statute or subsection of the statute under which it was convening in executive session.
10. It is found that the respondent discussed in executive session what it was willing to pay for a certain parcel of land beyond what it had already offered the owner, and that publicity concerning the repondent's contemplated best offer that reached the owner of the land would have caused a likelihood of increased price.
11. It is also concluded that nothing in 1-21(a), G.S., requires the agency to cite the statute under which it is convening in executive session.
12. It is therefore concluded that the respondent reasonably identified a permissible reason for convening in executive session within the definition contained in 1-18a(e)(4), G.S.
13. It is also found, however, that the actual purpose of the executive session exceeded the scope of discussion permitted by 1-18a(e)(4), G.S.
14. Specifically, it is found that additional purposes of the executive session were to discuss the contents of the real estate appraisal, and to discuss strategy with respect to the
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acquisition of the land by eminent domain proceedings, which proceedings had already been authorized by the public works commission before the March 8, 1994 meeting.
15. The respondent maintains that the executive session was permissible under 1-18a(e)(2), G.S., and 1-18a(e)(5), G.S., together with 1-19(b)(7), G.S.
16. Section 1-18a(e)(2), G.S., permits an agency to convene an executive session for:
strategy and negotiations with respect to pending claims or pending litigation to which the public agency or a member thereof, because of his conduct as a member of such agency, is a party until such litigation or claim has been finally adjudicated or otherwise settled ....
17. Section 1-18a(h)(3), G.S., in part defines pending litigation to mean "the agency's consideration of action to enforce or implement legal relief or a legal right."
18. It is found that the respondent's consideration of whether to proceed with a taking by eminent domain was consideration of action to implement a legal right within the meaning of 1-18a(h)(3), G.S.
19. Section 1-18a(e)(5), G.S., permits an agency to convene an executive session for :
discussion of any matter which would result in the disclosure of public records or the information contained therein described in subsection (b) of section 1-19.
20. Section 1-19(b)(7), G.S., provides that nothing shall require the disclosure of:
the contents of real estate appraisals, engineering or feasibility estimates and evalations made for or by an agency relative to the acquisition of property or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all proceedings or transactions have been terminated or abandoned ....
21. It is found that the respondent's discussion of its real estate appraisal was permitted by 1-18a(e)(5) and 1-19(b)(7), G.S.
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22. It is also found, however, that that respondent failed to state either the purpose authorized by 1-18a(e)(5), G.S., or the purpose authorized by 1-18a(e)(2), G.S.
23. It is therefore concluded that the respondent violated 1-21(a), G.S., by failing to state the actual purposes for its March 8, 1994 executive session.
24. The complainaint also maintains that the agenda for the meeting did not adequately apprise the public of the business to be discussed in executive session.
25. It is found that the agenda item pertaining to the executive session was "Executive Meeting - Land/Randolph Road.
26. The respondent maintains that the agenda item was sufficient to notify the public works commission members of the business to be transacted.
27. It is found, however, that the complainant himself materially misunderstood the business to be discussed under the agenda item described in paragraph 25, above.
28. It is also found that the respondent failed to prove that the agenda item was sufficient to notify the public of the business to be transacted.
29. It is therefore concluded that the respondent public works commission violated 1-21(a), G.S., by failing to prepare a reasonably sufficient agenda for its March 8, 1994 meeting.
30. With respect to the complainant's allegation that the respondent failed to answer his questions, it is concluded that the complainant has not alleged a violation of the Freedom of Information Act.
31. With respect to the complainant's allegation that the respondent failed to provide him with the agenda or minutes of the March 8, 1994 meeting, it is found that the respondent made the agenda and minutes of the meeting available to the complainant for inspection or copying.
32. It is also found, however, that the minutes of the meeting pertaining to the executive session that is the subject of this complaint fail to disclose all persons in attendance.
33. Section 1-21g(a), G.S., provides in relevant part that the minutes of an executive session shall disclose all persons who are in attendance.
34. It is therefore concluded that the respondent violated 1-21g(a), G.S.
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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 respondent shall strictly comply with the requirements of 1-21(a), G.S., by stating all reasons for convening in executive session; by including in its minutes all persons in attendance in executive session; and by including in its agenda all business to be transacted at its meetings in a manner calculated to inform not just its own members, but the public as well.
Approved by Order of the Freedom of Information Commission at its regular meeting of January 11, 1995.
Debra L. Rembowski
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:
SYDNEY M. LIBBY
251 Court Street, Apt. 3
Middletown, CT 06457
MIDDLETOWN DEPARTMENT OF PUBLIC WORKS
DeKoven Drive and Court Street
P.O. Box 1300
Middletown, CT 06457
Debra L. Rembowski
Clerk of the Commission